Notice letter not received, does employment contract continue?

With a termination permit in hand, the employer (a security company) terminated the employment contract with the employee (security guard). However, the termination letter never arrived and the employee believed that he had not been fired. The Leeuwarden subdistrict court ruled on this on March 24. 

What was going on? 

With the employer's knowledge, the employee had chosen his mailing address at the address of one of the employer's premises. The employer sent the termination letter by registered and regular mail. The registered termination letter was not received by the employee and was returned. Nevertheless, as of the termination date (Oct. 1, 2020), the employer stopped salary payment. In January 2021, when the employee went to his mailing address again, he found a big pile of letters, including the one from the UWV about the dismissal procedure. He decided to go to court to challenge his dismissal. 

The employee believes that the notice of termination of the employment contract did not reach him and therefore does not apply. Because no valid dismissal took place, the employment contract was not terminated and the employer must continue to pay wages, even after October 1, 2020. The employer disagrees. According to him, it does not follow from the law that the employee must have actually received the letter, especially since the employee himself had provided a special mailing address. The employee should have kept a closer eye on his mail.  

Reception Theory  

Contrary to the employer's argument, the law provides that a statement addressed to a particular person must have reached that person. Therefore, if the dismissal letter did not reach the employee, the dismissal given is not legally valid. The Supreme Court has also previously ruled on this so-called "receipt theory": "If the receipt of the statement is disputed, a reasonable interpretation geared to the needs of practice implies that, in principle, the sender must establish and, if necessary, prove facts or circumstances from which it follows that the statement was sent by him to an address which he could reasonably assume could be reached by the addressee there, and that the statement arrived there. Thus, the theory of receipt implies that a statement has effect only when it is received by the addressee. 

Judgment of Subdistrict Court 

In this case, it was clear that the termination letter had never arrived. After all, the letter had been returned to sender. 

Thus, the employer could not reasonably assume that the notice had reached the employee. He should have done something to ensure that the termination letter still reached the employee. Given the duration of the termination notice, that was still possible. A dismissal has many consequences for an employee, so a good employer can also be expected to make that extra effort. The fact that the employee had given the employer's own address as his mailing address does not change this. Moreover, it has not been shown that the employee was intentionally avoiding the letter, and the court considers it plausible that he did not even know that the employer had obtained a dismissal permit.   

No resignation 

Thus, the employer's termination in this case has no legal consequences for the employee. In other words, the employment contract is still in place and on this basis the employee can claim payment of wages even after Oct. 1, 2020. Thus, the employer must pay wages from October 1, 2020, plus the legal increase and the costs of the proceedings. 

Important for practice 

Although here it was the employee who had provided a special mailing address and who might have been able to check more often to see if mail had been delivered for him, it is still the employer who loses out. Therefore, when, as an employer, you are going to send a termination letter, it is always important to check whether this letter actually reached the employee. In many cases, registered mail will suffice. However, if it is returned, you as the employer still have to ensure that the notice actually reaches the employee. 

You can read the full ruling here. 

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