In its ruling of January 17, 2023 (Case No.: 5 Sa 243/22), the Thuringia Regional Labor Court decided that an employee's termination is effective even if the employee "withdrew" it and initially continued to work afterwards.
The plaintiff employee had been working for the defendant company as a setter in various positions since 1998. His employment contract contained the following provision under the heading "Termination": "Termination of the employment relationship must be in writing. The employment relationship may be terminated by either party with three months' notice to the end of the quarter. Furthermore, the extension of the notice periods pursuant to Section 622 (2) of the German Civil Code (BGB ) is agreed, which shall be deemed agreed for both the employer and the employee." In a letter dated 07.04.2021, the employee terminated the employment relationship in writing with effect from the next possible date. Subsequently, the employee addressed the employer with two e-mails in which he "withdrew" the notice of termination. Furthermore, in these e-mails he communicated his willingness to continue the employment relationship. These e-mails remained without any response from the employer. Subsequently, the employee continued to work until Nov. 19, 2021. On this day, he was asked to attend a personnel interview. In this meeting, he was informed that the notice of termination was to remain in effect. The employee then returned his company key, his company ID card and his company cell phone. He took his remaining vacation until November 30, 2021. He sued for a declaration that the termination of April 7, 2021 was invalid.
The Labor Court dismissed the employee's action for a declaratory judgment. This ruling was confirmed by the Regional Labor Court in the decision discussed here.
In the opinion of the Regional Labor Court, the employment relationship was effectively terminated by the employee with effect from November 30, 2021 by letter dated April 7, 2021. A continuation of the employment relationship had not been agreed between the parties.
It was not possible for the plaintiff (employee) to withdraw the notice of termination, as the termination is a unilateral declaration of intent requiring receipt. The notice period in this case expired on 30.11.2021. The employer employed the employee until 11/30/2021 and duly remunerated him. Furthermore, the company did not comment on the notice period at any time. The company also had no reason to do so, as the employee had not specified a date in the letter of termination dated 07.04.2021.
The decision is convincing on the merits. However, it also shows that after an employee's notice of termination has been given, circumstances may arise which could possibly lead to the assumption of an implied agreement to continue employment. Therefore, employers should always check very carefully which actions they still take towards such employees.