Rejection of a written notice due to lack of simultaneous submission of power of attorney

On 24 September 2015, the Federal Labour Court (Bundesarbeitsgericht) decided that a written notice may not be rejected by an employee where a power of attorney is not submitted simultaneously, if such a power of attorney had already been submitted for an earlier notice. However, this only applies if the earlier power of attorney also authorizes the subsequent notice.

In the present case, the plaintiff was dismissed by a representative after the initiation of creditor protection proceedings at her employer in accordance with Chapter 11 B.C. She received a first notice including a power of attorney authorizing the signatory of the notice. This first notice was ineffective because the plaintiff was pregnant. Subsequently the consent of the appropriate authority was obtained. The plaintiff then received a second notice but no power of attorney. Instead, the notice referred to the power of attorney submitted to her with the first notice. The plaintiff rejected the notice saying that no power of attorney had been submitted with the second notice.

The Federal Labour Court agreed that in principle with each representative’s notice a power of attorney must be submitted. Otherwise, the recipient may reject the notice, making it ineffective. This regulation serves the purpose that the recipient is not obliged to do research on whether or not the representative is authorized to effect the dismissal. However this purpose does not cover the recipient’s interest to be assured that the authorization for a dismissal still persists. In the case at hand, the power of attorney was clear that the representative was not only authorized for the first notice but for the second as well. Therefore, the Federal Labour Court declared the second notice as being effective.

The decision shows that in certain cases, a power of attorney need not be submitted simultaneously with the notice given by a representative. Nevertheless, we always recommend that notices are signed by somebody who may dismiss employees without a power of attorney, like the Head of HR or an authorized representative registered in the German commercial register (“Prokurist”).