A CYCLING ACCIDENT WITH FATAL CONSEQUENCES – REGIONAL LABOUR COURT RULES OVER INJURY AND DISMISSAL

1.                  The problem

Around 20% of all dismissals of employees are subject to legal action. Therefore it is reasonable that employers want to make sure that dismissals are legally sound. One of the most important points in such lawsuits is whether the letter of notice has reached the employee, since the employer must not only prove that he sent the letter of notice, but also that this letter reached the employee, i.e. that he or she had the opportunity to take note of it. This often leads to uncertainty as to whether or when the letter reached the employee.

Such an uncertainty occurred in the underlying case. After the employer suffered from two broken arms because of a bike accident. He lived with his parents for a while and therefore could not check the mail at his own apartment. However his employer decided to dismiss him and therefore sent a letter of termination to the employee’s home address, where it arrived on 21 July 2018. However, it was not until 7 August 2018 that the sister of the employee got the notice from the employee’s mailbox.

The employee filed a lawsuit against his employer claiming that the letter of dismissal did not take effect until 7 August 2018 because he had no opportunity to access it earlier because he was living with his parents due to the injuries he suffered. Moreover, on 20 July 2018, his sister had even contacted his employer and asked him to send the letter of termination to their parents’ address instead of her brother’s home.

Nevertheless this was not the only problem the court had to address in its verdict. Under German law, the employer has to provide continued remuneration for 6 weeks, if the employee cannot work due to illness or injury. However, there is an exception to this rule if an employee has caused his/her sickness/injury through his/her own fault. In the underlying case the employee rode on a sloping footpath that was closed to cyclists. Therefore the employer refused to provide continued remuneration, as the employee had to be blamed for the accident. However, the employee also filed a lawsuit against this decision, arguing that he did not notice the footpath was closed to cyclists and was surprised by the slope.

2.                  The decision

The Regional Labour Court Schleswig-Holstein rejected both claims of the employee (1 April 2019, docket number: 1 Ta 29/19).

First it decided on the question of when the letter of dismissal had reached the employee. It therefore gave reference to a verdict of the Federal Labour Court (June, 24 2004, docket-number: 2 AZR 461/03). In this case, the Federal Labour Court had ruled that a letter of dismissal could reach the employee at his place of residence even if he or she was on holiday and the employer knew this. The only decisive factor should be, that (i) the letter had entered the recipient’s sphere of influence (e.g. was put in the mailbox) and (ii) the employee would – under normal circumstances (not being on vacation) – have had the possibility to take note of it.

The Regional Labour Court Schleswig-Holstein followed this argument and therefore came to the conclusion, that – under normal circumstances – the employee would have had the possibility to get the letter out of the mailbox the day it was put in there, therefore he received the letter on 21 July 2018. The message from

his sister, that the letter should be sent to their parents’ address, could not prevent the employer from sending the letter to the employee’s own address since the employee would have been obliged to organize someone to take a look into his mailbox while he was not at home.

Second the court denied an entitlement to continuous remuneration as it would have been the employee’s own fault to get injured while riding on a path that was closed for cyclists, sloping and poorly visible. If someone was riding on such a path, he breached basic duties of care and therefore had no entitlement to continuous remuneration.

3.                  The impact

The verdict provides clarity on the topic of delivering a letter of termination to the employee. However, it can be dangerous to always rely solely on the fact that the letter can be sent home to the employee, since two very important points must be observed.

First, the sending of a letter to the employee’s home address may in special circumstances be considered an act against good faith if the employer knows that the employee currently has no access to his mailbox. This would mean that the declaration of interests would only become valid when it actually reaches the employee. However those special circumstances have to be quite severe, meaning this legal consequence is more likely to be the exception.

Secondly, employers and employees could agree on special conditions for the delivery of letters, e.g. that in future the documents should no longer be sent to the employee’s home address but rather to another address. If the employer nevertheless sends the letter to the employee’s home address and not to the agreed address, the declaration would not be considered as received by the employee.