Employee does not receive termination letter and the employer is the one who suffers the consequences

A notice of termination only takes effect when it actually reaches the employee (the receipt theory). If a registered letter of termination is returned, you, as the employer, may not assume that the employee has received it — you must make more effort to reach him. If you fail to do so, the termination has no effect, the employment contract remains in force, and you continue to pay the salary.

In a case before the District Court of Northern Netherlands (ECLI:NL:RBNNE:2021:993), a security company held a dismissal permit from the UWV and was able to terminate the employment lawfully. The employee—a security guard at prostitution establishments where business had slowed down due to the coronavirus—had not filed a defense. The employer sent both an ordinary and a registered letter of termination on August 19, 2020, and stopped paying salary as of October 1. Nevertheless, the employee contested the dismissal.

I never received the letter

The employee had never picked up the registered letter, causing it to be returned to the employer; by his own account, he did not collect his mail often. It was not until January 2021 that he found a stack of mail items, including the UWV letter regarding the dismissal permit. At that point, he decided to contest the dismissal: according to him, the termination had never been legally valid. He demanded back pay and reinstatement. The employer felt that the security guard should have paid closer attention to his mailing address.

The receipt theory: the sender must prove that the letter arrived

This is where the Supreme Court's receipt theory applies: the sender must prove that the counterparty received the letter, or that they could reasonably assume it reached them. That was the issue: the letter of termination never arrived and was returned. The employer was therefore not entitled to assume that the termination had reached the employee and should have made more effort to reach them. A termination has a major impact on an employee's life, and effort is expected from a good employer.

According to the subdistrict court judge, the fact that the employee had a special postal address and should have checked his mail more frequently did not mean that he intentionally evaded the letter. The termination therefore had no legal consequences: the employer had to pay the salary plus the statutory increase, and the employment contract remained in effect. The proceedings cost the employer approximately 12,000 euros.

Be careful with termination and dismissal letters

If you are faced with a dismissal procedure, act meticulously. In principle, a registered letter of termination suffices, but if it is returned, you must ensure that the message reaches the employee. Additionally, watch out for errors in dismissal letters.

Frequently Asked Questions

When is a termination legally effective?

Only when it has actually reached the employee, or if you could reasonably assume that this was the case (the receipt theory). The sender must prove this if necessary.

What if the registered letter is returned?

In that case, you may not assume that the employee has been reached. You must make an extra effort, for example via another channel or address, otherwise the termination will have no effect.

Is the employee not personally responsible for his mail?

To a certain extent, but that does not relieve you of your duty to make every effort. As long as it has not been established that the employee is intentionally evading the letter, the termination may fail.

Making a notice of termination or resignation letter legally sound

A minor delivery error can cost you thousands of euros. The employment lawyers at MKB Juristen draft your notice of termination or dismissal letter and ensure that it demonstrably reaches the employee. View our expertise in employment law or schedule an intake interview .