Photo of termination letter in mailbox accepted as personal delivery

A janitor was working in a housing association. His employment was subject to a six-month probation period. Shortly before the end of the probation period, he was invited to a discussion meeting triggered by his poor performance and unexplained absence. The next day, the company decided to terminate him.

As a result, the company had to give the employee notice of termination just two days before the end of the probation period. To make sure notice was given before the end of the probation period, the company showed up at the employee's home, attempting first to personally hand over the notice of termination to him and secondly getting a neighbour to help as no one opened. The employee had been at home the first time but had not heard doorbell. During the second attempt, he was out of town due to illness in his family.

Because the company could not get in personal contact with the employee, the termination letter was left in his mailbox, and the company took a picture with a time stamp. To make sure the employee received the message, the company also sent him an e-mail with a copy of the letter and an explanation that a copy was also in his mailbox. In addition, he also received a text from the company, informing him about this.

Despite all the attempts, the employee did not see the text until later in the evening, where he did not have any access to his e-mail. He did not get access to his e-mail or the letter in his mailbox before his return three days later. That meant that he thought that he was terminated after the end of his probation period, and not before, which increased his protection against termination.

Notice of termination had been given by text, e-mail, and letter

The court concluded that notice had arrived within the probation period as the company could document that the notice had been placed in the mailbox before the end of the probation period. Besides for being able to document delivery, it played a role that the company had been unaware of the fact that the employee would not have access to his mailbox before three days later.

In response to method of terminating the employee by text, the court found that termination had not taken place. The text itself did not meet the formal requirements for a notice, as it only explained that the notice had been sent by e-mail and placed in the mailbox with an encouragement to check these.

In response to the method of terminating the employee by e-mail, there was nothing to suggest that the employee was lying about not having access to his e-mail before he returned home. The company, who had the burden of proof, had not made use of a read receipt or received a confirmation from the employee. The notice by e-mail had therefore not arrived within the probation period.

IUNO’s opinion

The case gives important guidelines as to when untraditional notices of termination have arrived. The time of the arrival can be crucial because the threshold for termination is lower during the probation period. The timing can therefore be decisive to whether a termination is justified or not. The notice period for all terminations will start to run on the first day of the month after the notice takes effect. If the notice takes effect at the start of a month, the company will in practice therefore have to pay salary during the notice period for a longer time.

IUNO recommends that companies consider the consequences of when notice has arrived beforehand. Companies that make use of untraditional methods to hand over notice should also make sure that they have documentation for the time of arrival of the notice. In relation to e-mails, there are several digital solutions for documentation, such as read receipt and delivery notifications.

[The Norwegian Court of Appeal’s judgement LB-2021-118220 of 17 January 2022]