When has the dismissal reached the employee?

Dismissals from the employer must in principle be delivered to the employee in person or by registered letter. A recent ruling from the Borgarting Court of Appeal allows for dismissal by e-mail or upon delivery in the employee's mailbox to be accepted as well in some cases.

1 The dismissed caretaker

The judgment from the Borgarting Court of Appeal (LB-2021-118220) applied to a caretaker in a condominium who was dismissed at the end of the probationary period. The notice was placed in the caretaker's mailbox one day before the end of the probationary period and sent by e-mail the same day. One of the questions that was submitted to the court was whether this was enough for the dismissal to have been given before the end of the probationary period.

The board of the condominium, which was the caretaker's employer, had rang the doorbell on the caretaker's door in the morning to deliver the notice. The caretaker was home at this time, but neither he nor his spouse heard anyone ringing the doorbell.

Later that afternoon, the employer tried to ring the doorbell again, but then the caretaker was out of town. The notice was then placed in the caretaker's mailbox and sent to him by e-mail. At the same time, the chairman of the condominium sent an SMS to the caretaker with notice of the dismissal.

Pursuant to the Working Environment Act § 15-4, a dismissal from the employer shall be given to the employee in person or sent by registered letter to the employee's address. The dismissal is considered to have taken place when it "has reached the employee […]".

In the judgment from Borgarting, the dismissal was neither delivered in person to the caretaker nor sent by registered mail. Could it still have been considered to have taken place before the probationary period expired?

2 The assessments of the Court of Appeal

The court first dealt with the e-mail with the transmission of the dismissal. Electronic communication is often equated with paper-based communication, but the provision in the Working Environment Act § 15-4 does not in principle allow for dismissals by e-mail.

However, the court emphasized that the law does not prevent dismissal from being given by e-mail if the employer receives confirmation from the employee that he has received the dismissal. In that case, the dismissal can be said to have "reached the employee". However, the caretaker had not had access to e-mail while he was out of town. The court therefore ruled that the dismissal had not reached the employee.

With regard to the dismissal placed in the caretaker's mailbox, the court drew a parallel to the usual rules of contract law. According to these rules, written acceptance is considered to have “reached the recipient” when it has been placed in the recipient's office or home, even if it has not actually been read.

In the same way, the court held that the dismissal as a starting point must be considered to have reached the recipient when it had been placed in the caretaker's mailbox. The fact that the caretaker was not at home when the dismissal was placed in the mailbox was not decisive.

The Court of Appeal concluded after this that the dismissal had reached the employee before the end of the probationary period.

 3 Practical advice when giving dismissal:

•  Follow the main rule of law. Although the Court of Appeal accepted the dismissal in the caretaker's mailbox, there may be individual circumstances that make the result different in other cases. It is therefore safest to follow the law's main rule on personal delivery or registered mail.
• Provide documentation. If you give dismissal in other ways than according to the rule of law, you should make sure that you have documentation that the dismissal has actually reached the employee. By e-mail, for example, you can request a delivery / reading confirmation, while when delivered in a mailbox, you may want to take a picture of the dismissal having actually been delivered.
• Be out well in advance. The question of when the dismissal has reached the employee is only pushed to the extreme when the point in time has a legal consequence - for example at the end of the probationary period or in connection with a change of month. Some problems can therefore be avoided by being out early and giving notice in good time before the deadline.