On 23 June 2022, the Eastern High Court[1] upheld the judgement from the City Court in Odense of 1 October 2021[2], where a dismissal was sent via email to the CFO of the company on 31 December 2019. The email was considered as delivered to the CFO on 31 December 2019 and not on 2 January 2020, the day where the CFO in fact read the email.
The circumstances of the case
On 1 September 2019, the CFO was employed under the Danish Salaried Employees Act in the Finance Department in a Danish craftsman enterprise. The weekly working hours was 37 hours. Additional workings hours could occur, however, such hours were not remunerated.
As an employment benefit, the CFO received a mobile phone and a laptop which he often took home with him, however, the CFO only answered emails outside office hours if he – for other reasons – was at his home office in the basement of his house or due to high pressure working periods in connection with the monthly or annual closing. With that being said, it was not common practice for the CFO to be online during holidays etc.
Normally, the CFO did not activate his auto-reply during his holidays and it was not his understanding that the rest of the management group was using auto-replies due to absence during e.g. holidays either.
On 31 December 2019 – during the Christmas holidays, where the Finance Department was closed – the Danish craftsman enterprise sent a dismissal of the CFO to the CFO’s work email address. The CFO did, however, not read the email including the dismissal until 2 January 2022. As the termination notice period starts to run when the notice is delivered and as the notice period runs to the end of a calendar month, the question in this matter was whether the email was considered to be delivered on 31 December 2019 (the date where the email was sent) or whether the email was considered to be delivered on 2 January 2020 (the date where the CFO read the email including the dismissal).
Comments from the Eastern High Court
During the trial, the High Court found it important that written communication in the craftsman enterprise primarily took place via email and that there were no such rules or practices to activate auto-reply during holidays or other periods of absence were employees where unreachable. In additional, the High Court found it important that the CFO had access to his work email via his phone and laptop, which he brought home and which he – on several occasions – used to answer emails during weekends and outside office opening hours.
Based on the above, the Eastern High Court concluded that the email was delivered in a way so that it could reasonably be expected that the CFO would become aware of the email before 1 January 2020. It had no influence on the judgement that the CFO did not read the email and hence the dismissal until 2 January 2020.
In other words, the High Court assessed that the termination notice period should start on 31 December 2019 and not at the end of January 2020. This was assessed, although the Finance Department was closed during the holidays and that the CFO was on holiday and hence did not read the email until 2 January 2020.
Bird & Bird’s comments
It is not surprising that the email is considered as delivered at the time where the email reached the inbox of the CFO. This rule follows the clear general view that the time of delivery is decisive for when a message/letter is considered as delivered.
What is more interesting is, however, that the High Court finds it important that the CFO “could reasonably be expected” to become aware of the dismissal before 1 January 2020.
Based on the above, it must be a criterion before a message/letter is considered as delivered that the recipient can be reasonably expected to be aware of the message. Therefore, if a company is supposed to terminate an employee, who at the time of termination is travelling abroad and hence not is at home, the termination might not be considered as delivered if send by normal post until the recipient has returned from the holiday. This will apply, although the termination is sent by courier as normally recommended.
It is therefore important to notice when and how a potential dismissal is sent to the employee to ensure that the employee can be reasonably expected to become aware of the message and that the dismissal therefore can be considered as delivered before the end of the current month.
In Bird & Bird, we always recommend receiving a confirmation of receipt of the termination from the employee. If the employee does not confirm the delivery, the employer must in the best way possibly try to ensure that the employee can be reasonably expected to have become aware of the dismissal via the chosen delivery form – this could be by sending the dismissal by both email and courier.
For further information, please contact:
Søren Narv Pedersen, Partner, Bird & Bird
soren.pedersen@twobirds.com
[1] Judgement of 23 June 2022, case: BS-39495-2021-OLR
[2] Case: BS-50405/2020-ODE
