Earlier this year, the Borgarting Court of Appeal issued practical statements on the use of alternative delivery methods in the event of dismissal, in a case where a dismissal was both sent by e-mail and physically placed in the mailbox of an employee.

The starting point according to the Working Environment Act § 15-4 second paragraph is clear; Termination from the employer must be delivered to the employee in person or sent by registered letter to the employee's stated address. The dismissal shall be deemed to have taken place when it has "reached the employee".

However, the provision is a rule of order that does not automatically preclude the termination from being sent in alternative ways and is still considered to have been received. However, the employer has the burden of proving that it has reached the employee.
_____________________________________________________________________________
 

Case Background

The employee was employed as a caretaker in a housing association, and was dismissed at the end of the probationary period. The probationary period expired on 1 November, but the employee stated that he received the dismissal on 2 November and was thus dismissed outside the probationary period.

On October 30, the employer tried to hand over the dismissal in person at the caretaker's home. Neither the caretaker nor the wife heard the bell, and the letter of resignation was placed in the employee's mailbox. The notice of termination was then sent by e-mail, and the employee was notified in a text message that the notice of termination was in the mailbox.

The employee left on 30 October and returned on 2 November. He had only seen the text message on 30 October, but did not have access to e-mail and therefore did not read the letter of resignation until 2 November.

The question the Court of Appeal should decide on was therefore whether the dismissal came before the end of the probationary period, i.e. 30 October.

The Court of Appeal's assessment

1. Sending notice of termination by e-mail

With regard to the use of e-mail, the Court of Appeal pointed out that the Working Environment Act in itself does not prevent termination from being given by e-mail. Notoriety that the termination has been received can be ensured by reading confirmation or read receipt. If the employer receives such a confirmation, the dismissal will, in the opinion of the Court of Appeal, be received within the meaning of the law.


The Court of Appeal nevertheless believes that there are concerns associated with forcing the employee to accept such a form of communication in the event of dismissal. If the use of e-mail has not been agreed and no confirmation has been given that the dismissal has been received, it is also uncertain whether the dismissal can be said to have been received by the employee. In the view of the Court of Appeal, it must at least be required that the employee has actually registered that he has received an e-mail with termination and that he has had the opportunity to open it. And it is the employer who has the burden of proof for this.
 

The Court of Appeal pointed out that placing the dismissal in the employee's mailbox is neither personal delivery nor registered mail as required by law. In the case, there was no evidentiary doubt that the letter of resignation was actually delivered to the employee's mailbox on 30 October. The court should then only consider when the letter of resignation could be considered to have appeared within the meaning of the law.


The Court of Appeal concluded that a dismissal that has been placed in the recipient's mailbox must be considered to have appeared when it was placed in the recipient's mailbox, regardless of when the employee actually became acquainted with the contents. The Court of Appeal was nevertheless clear that an exception to this could be conceivable; for example, if the dismissal is delivered in the evening or at another time, it can not be expected that the employee picks up mail, if the employer is aware that the employee is not at home, etc.


Our assessment and tips to the employer when handing over dismissal
In the case before the Court of Appeal, there was no evidentiary doubt about the actual circumstances of the case, and the dismissal was announced both by e-mail and placed in the employee's mailbox. Although the Court of Appeal points out that the Working Environment Act does not preclude alternative methods of delivery than the starting point of the Act, each individual case will have to be considered specifically and the employer has the burden of proof. However, the Court of Appeal allows for a dismissal to be sent by e-mail, if this has been agreed in advance or for the employer to receive a reading or acknowledgment of receipt from the employee.


When the employer has the burden of proving that the dismissal has reached the employee and in the form claimed by the employer, alternative methods of delivery than the law's starting point could lead to unnecessary evidentiary challenges.


We would therefore not recommend sending a notice of termination by e-mail only. Our clear recommendation is that the employer should hand over the dismissal in person or send it by registered mail, then the dismissal can be sent in a copy by e-mail.


In the event of a time crunch, the employer can then request confirmation of receipt by e-mail and in addition notify the employee in a text message.

Share on Facebook

Share on Linkedin