In its judgement of 17 August 2007, Case No. 10 Sa 512/07, the Regional Court of Hamm (LAG Hamm) ruled that a termination of employment by text message generally lacks the required written form. Furthermore, the Regional Labour Court (LAG) ruled that a termination agreement cannot be concluded in a formally valid manner by means of mutual text messages.
In the case underlying the ruling of the Higher Labour Court (LAG) Hamm, an employer terminated the employment relationship of his employee by text message. The employee initially accepted this dismissal without objection. Subsequently, however, he defended himself against the dismissal by bringing an action for unfair dismissal before the Labour Court of Hamm. By partial judgment, the Labour Court of First Instance then found that the employment relationship existing between the parties was not terminated by the text message exchanged between the parties.
The employer appealed against this partial decision of the Hamm Labour Court (ArbG Hamm) of 31 January 2007 to the Hamm Regional Labour Court. However, the Higher Labour Court (LAG) Hamm confirmed the legal opinion of the Labour Court Hamm that the required written form of section 623 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) was lacking for a termination or a termination agreement to be effective.
Pursuant to section 623 of the Civil Code, the termination of the employment relationship must be in writing in order to be effective. This applies to the termination of the employment relationship by notice of termination as well as by termination agreement. Electronic form is expressly excluded under section 623 of the BGB. Therefore, in the opinion of the Higher Labour Court (LAG) Hamm, a text message does not comply with the required written form of section 623 of the German Civil Code (BGB). The Regional Labour Court (LAG) Hamm explained that according to section 126 of the German Civil Code (BGB), the written form requires the handwritten signature of the issuer of the document. This was lacking in the case of a text message. Therefore, a termination and also a termination agreement by text message was null and void according to section 125 sentence 1 BGB.
Although the LAG Hamm indicated that an employee's invocation of the lack of written form in the case of a termination under Section 242 of the German Civil Code (BGB) could be contrary to good faith in an exceptional case, compliance with the legally prescribed form must be observed as a matter of priority and principle.
"In principle, compliance with the form prescribed by law must be observed. If the written provisions of civil law are not to be undermined, a lack of form can only be regarded as irrelevant in exceptional cases pursuant to Section 242 of the German Civil Code (BGB). This applies to the formal requirement of Section 623 of the German Civil Code to a particular extent. The provision of § 623 BGB deliberately accepts that declarations of dissolution which are undisputedly made in earnest - but only orally - are also ineffective. Then, however, the invocation of the lack of written form cannot be declared to be in breach of trust solely on the grounds that the termination declaration was meant seriously." (Federal Labor Court (BAG), ruling dated September 16, 2004 - AP BGB, § 623 No. 1) Only if the party opposing the declaration had a special reason to trust in the validity of the declaration despite the lack of form and the declarant contradicts his own previous conduct by invoking the lack of form can the invocation of the lack of written form be exceptionally unfaithful. However, this requires that the employee repeatedly expresses his intention to terminate the employment relationship with particular binding force and finality and thus creates a special basis of trust. (BAG, judgment dated September 16, 2004 - AP BGB § 623 No. 1; ErfK/Müller-Glöge, 7th ed., § 623 para. 26; KR/Spilger, 8th ed., § 623 para. 200 ff, 206; Stahlhacke/Preis/Vossen, Kündigung und Kündigungsschutz im Arbeitsverhältnis, 9th ed., para. 163 ff, 167 with further references). The mere fact that the recipient of the notice of termination accepts a notice of termination declared in breach of form without objection and only later invokes the written form does not constitute a breach of good faith."
However, the Higher Labour Court (LAG) Hamm is of the opinion that the later assertion of the continuation of the employment relationship could appear to be unfaithful if the plaintiff employee had repeatedly insisted on the termination of the employment relationship despite the reference to the lack of form. However, even if both parties were unaware of the requirement of form for a termination, the legal transaction would remain fundamentally invalid. (BAG, judgement of 22.08.1979 - AP BAT § 4 No. 6)
In the case at hand, the plaintiff employee had at no time accepted the dismissal of the defendant employee or agreed to a termination agreement. The initial acceptance of the dismissal by text message without objection did not make the invocation of the lack of written form appear to be unfaithful. (cf. also: BAG, judgement of 19 May 1988 - AP BGB § 613 a No. 75).
In principle, it is clear after this ruling that it is not possible to terminate an employment relationship by text message. The same applies to the agreement of a termination contract by text message. Only in exceptional cases can it be disloyal for an employee to invoke the lack of written form in this case.
Source: Regional Labour Court Hamm, judgement of 17.08.2007, ref.: 10 Sa 512/07 www.lag-hamm.nrw.de
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
