The letter that never arrived

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Date:
27 Aug 2010

an employer was unable to prove that the warning of summary dismissal sent by post had in fact reached the employee. thus, the summary dismissal was unjustified

An employer was unable to prove that the warning of summary dismissal sent by post had in fact reached the employee. Thus, the summary dismissal was unjustified.
 
If an employer chooses to give an employee a warning of summary dismissal by letter, the employer must be able to prove that the letter has been sent. Otherwise, there is a risk that the summary dismissal will not be effective if the letter is never delivered. That was the result of this case before the Danish Maritime and Commercial Court.
 
The case concerned a service assistant who was terminated and, shortly thereafter, called in sick. She sent in two successive medical certificates which only stated that she was unfit for work. The employer then requested a medical certificate specifying the employee’s functional limitations.
 
After having requested such a medical certificate twice without result and informed the employee that failure to comply could have consequences for her sickness benefits, the employer sent a final warning. The warning made it clear that the employee would be summarily dismissed if she did not forward a medical certificate specifying her functional limitations. Since the employer still did not receive the requested certificate, the employee was summarily dismissed. The problem was, however, that – unlike the other letters – the employer’s warning of summary dismissal never reached the employee.
 
No certificate of posting
The Court was satisfied that the employee had duly acted on the employer’s requests by contacting her doctor. Therefore, the deciding factor in whether the summary dismissal was effective was whether the employee had in fact received the third warning letter. The employer being unable to prove the opposite, the Court had to conclude that the letter had never arrived and that the summary dismissal was therefore unjustified.
 
The case has not been appealed to the Danish Supreme Court.

 

Norrbom Vinding notes

  • that the case illustrates that employers should ensure proof that a written warning of summary dismissal sent by post has reached the employee; and

  • that such proof is best obtained by a certificate of posting.

It should be noted that the case was decided based on the rules on medical certificates in force at the time.