If you receive a termination by certificate of posting, it could give you a second chance. The Federal Court of Justice (BGH) has clarified that mere proof of posting by the postal service is not sufficient to prove service of a termination notice. For employees who did not actually receive the termination, this opens up new room for maneuver — and can even result in the termination being invalid.
In practice, employers often use the certificate of posting because it is cheaper than recorded delivery with a return receipt and supposedly provides simple proof of delivery. Yet the BGH has now ruled that the documented posting alone does not suffice to prove service. This article explains what this means for your rights and how you should respond.
Certificate of Posting: How Service of Termination Notices Works
The certificate of posting is a special mailing method of Deutsche Post. The postal worker places the letter in the recipient’s mailbox and documents this with a certificate showing the date and time of posting. Unlike recorded delivery with a return receipt, however, there is no signature from the recipient. The postal worker merely notes that the letter was placed in the household mailbox.
Employers favor this delivery method because it offers a cost-effective way to send terminations. But herein lies the problem: Placement in the mailbox does not automatically mean the recipient actually took notice of the letter. According to BGH case law, what matters for the service of a declaration of intent — which includes a termination notice — is that the letter enters the recipient’s sphere of control and the recipient has the opportunity to become aware of it under normal circumstances.
Posting in the mailbox generally fulfills this requirement, but only if the posting itself can be proven. The BGH now demands seamless proof of the actual posting. If the certificate of posting from the postal service is insufficient to prove that the letter was actually placed in your mailbox, service may fail.
What the BGH Decided: Delivered Is Not the Same as Served
The core of the BGH ruling is this: The mere notation by the postal worker on the certificate of posting that the letter was posted is not sufficient proof of service. The employer, who relies on service of the termination, must prove in court that the letter actually reached your mailbox. If this proof fails, the termination is deemed not served — with far-reaching consequences.
Concretely, this means: If you claim you did not receive the termination, and the employer can only produce the posting certificate from the postal service, that is not enough in the BGH’s view. The employer would have to provide additional evidence, such as witness testimony from the postal worker or an acknowledgment of receipt from you. Without such additional evidence, the court cannot assume the termination was served.
This decision significantly strengthens the position of employees. In many cases, employers cannot conclusively prove the posting. If you have received a termination by certificate of posting, you should therefore examine carefully whether service can actually be proven.
Why Service of the Termination Is Decisive for the Deadline to File a Protection Against Dismissal Action
The deadline for filing a protection against dismissal action under Section 4 KSchG is three weeks from service of the termination. This deadline does not begin with the posting of the letter, but only at the moment you were actually able to take notice of the termination. If service cannot be proven, the deadline begins correspondingly later — or, in extreme cases, does not start at all.
For employees, this means: If you did not receive the termination or service cannot be proven, you have more time to consider your next steps. However, relying solely on the lack of service is risky. When in doubt, you should always file a protection against dismissal action to preserve the deadline. The labor court will then examine whether the termination was served at all.
It is important to understand that a protection against dismissal action can be worthwhile for other reasons as well — for instance, if the termination is socially unjustified or contains formal errors. The uncertainty surrounding service is only one possible angle of attack. Protection against dismissal action: Everything you need to know — here you will find a comprehensive overview of requirements and procedure.
Typical Evidentiary Problems with Certificate of Posting — and How to Respond
In practice, it often turns out that employers can only inadequately prove service of a termination by certificate of posting. The postal certificate of posting contains the posting date, but not the name of the postal worker and no signature of the recipient. This certificate alone is therefore not seamless proof.
If you actually received the termination and the deadline has started to run, you should not pin your hopes on this evidentiary weakness. Instead, it is crucial to act quickly. Check whether you received the termination in time and whether the notice period was observed. Note the date on which you took the letter from the mailbox, and keep the envelope with the postmark.
If, on the other hand, you claim you never received the letter, you should inform the employer in writing immediately. The court will then examine whether service can be proven. As a rule, the employer will have to name the postal worker as a witness. If the postal worker cannot remember or the posting was not documented, there is strong evidence that the termination was not served.
What You Should Do When the Termination Arrives by Certificate of Posting
If you receive a termination by certificate of posting, there are several steps you should take immediately:
- Open the letter immediately and note the date of receipt.
- Check whether the termination can be valid at all — for example, whether the notice period was observed.
- Secure all documents, especially the envelope with the postmark.
- Do not engage in premature discussions with the employer.
- Consult a specialist lawyer for labor law if in doubt to assess your prospects.
A common mistake is to simply ignore the termination. If you let the three-week deadline pass, the termination may be deemed valid even if it is flawed. Take every termination seriously and act quickly.
If you are unsure whether to take legal action, consider: Even with uncertain service, a protection against dismissal action can be worthwhile. It preserves the deadline and forces the employer to prove service. If the employer fails, the termination is invalid and your employment relationship continues — with all rights to remuneration.
When a Protection Against Dismissal Action Is Worthwhile Even with Uncertain Service
A protection against dismissal action is always sensible if you want to keep your employment relationship or are seeking a severance payment. Even if service is uncertain, you should not hesitate. The action offers several advantages:
- It preserves the statutory three-week deadline.
- It forces the employer to prove service of the termination.
- It creates negotiating room for a severance payment.
The costs of a protection against dismissal action depend on the value in dispute and are often shared in the event of a settlement. If you have financial concerns, litigation funding can help. A severance payment is often the result of a settlement — read more on our page Severance payment after termination. Even if you already have a new job in prospect, you should not drop the action lightly — as this article shows: Protection against dismissal action and new job: What employees must consider during job search and acceptance delay.
Another advantage: In the conciliation hearing before the labor court, a solution acceptable to both sides is often found. Many proceedings end with a settlement that provides for a severance payment. Even if the termination itself is invalid, a settlement can be economically sensible.
Conclusion: How to Secure Your Rights When Facing Termination
The BGH decision on the certificate of posting is an important milestone for employees. Mere posting is not enough to prove service of a termination. This gives you the chance to challenge an invalid termination if the employer cannot prove service beyond doubt.
Nevertheless, you should not rely solely on this evidentiary weakness. React quickly, observe deadlines, and seek expert support if in doubt. A protection against dismissal action is the right way to enforce your rights — regardless of whether the termination was sent by certificate of posting or not. Use the uncertainty surrounding service as an additional argument, but do not stake everything on this card. With the right strategy, you can secure your employment relationship or negotiate an appropriate severance payment — especially when service cannot be conclusively proven, you have good prospects of challenging a termination by certificate of posting.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.