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Case:
BAG NJW 1963, 554 II. Civil Senate
Date:
15 November 1962
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr Tony Weir
Copyright:
Professor B.S. Markesinis

Reasons

A notice terminating the employment of a pregnant woman is ineffective if the employer knew of the pregnancy at the time of giving notice or was informed of it within one week after the notice of termination arrived (Law for the Protection of Maternity - Mutterschutzgesetz (MSG) para. 9 para. 1). On 14 August 1961 the defendant employer, who was unaware of the plaintiff's pregnancy, sent her a notice of termination of employment. The fact of her pregnancy was communicated to him on 29 August. If this was more than one week after the notice of termination had arrived, it was too late for the statutory protection.

However, as the Landesarbeitsgericht correctly found, this was not the case. Information that a registered letter had been received for her and could be collected from the Post Office reached the plaintiff on 16 August, but the registered letter itself did not reach her then (compare Reichsarbeitsgericht in ARS 15, 354).

The appellant argues that since a person who is informed by the Post Office that a registered letter has been received for him can then put himself in possession of the letter, the arrival of such information is tantamount to the arrival of the registered letter itself. The court cannot accept this. The cases put forward an analogous, namely those in which the addressee has his mail placed in a special locker in the Post Office or where he asks for mail to be retained poste restante, are essentially different. It is true that in those cases also the addressee has to fetch the mail from the Post Office, but it is located or dealt with there exactly as he has specified and chosen for the purpose. The locker in the Post Office and the poste restante counter are thus to be treated exactly like the letter box at his home. Items of mail which are placed in a special Post office locker or kept at the post restante counter are already in the recipient's area of control just as much as mail put in his letter box at home, and have therefore 'arrived' in the sense of para. 130 BGB. But it is different in the case of a registered letter. According to postal regulations, as is well known, a registered letter may be handed only to the addressee himself or to a person authorised to receive it on his behalf: there is no question of its being put in a mail box or in a Post Office locker or slipped through the door of a dwelling. Thus when the addressee is away, the registered letter does not come into his area of control at all, but remains in the possession of the Post Office. The only thing that comes into the addressee's area of control is the chit from the Post Office which tells him that a registered letter awaits him in the Post Office. This chit does not say who sent the registered letter, so the addressee has no means of knowing what it is about. The chit, therefore, cannot represent or stand in for the registered letter, and its arrival cannot represent or stand in for the arrival of the registered letter. Such arrival occurs only when the registered letter is fetched from the Post Office or is redelivered to some place within the recipient's area of control.

There is thus some risk in using registered mail when delivery must be made within a fixed period, but even the common assumption that this postal service is a very safe way of communicating important documents (reference omitted) cannot justify treating the arrival of the chit as the arrival of the registered letter itself. Since the chit says nothing about the sender or contexts of the registered letter, this would be to treat the letter as having arrived when it has not, and the recipient would be disadvantaged, for this would be to the benefit of the sender and to the detriment of the addressee.

Of course, the missive will be treated as having arrived if the addressee abuses his rights and fails to collect or delays the delivery of the registered letter. This court need not decide at what time the letter is deemed to arrive in such a case, for according to the findings of the Landesarbeitsgericht the plaintiff asked a friend to collect the registered letter for her. There is nothing abusive about that: not everyone can be expected to know the details of the postal regulations concerning the collection of registered letters by third parties. Again, the address given by the plaintiff did not indicate that the attic where she lived was a separate dwelling, and she had put her name on the mail box of the S family; but the information she gave was quite enough to ensure the delivery of a letter in the normal course of events, even a registered letter from her employer. It would be too much to expect a normal citizen to do more.

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