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When did the employer give notice of termination?

May 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Employers should always get written evidence of when notice of termination is given. This principle was recently stressed by the Western High Court.

One week can make a difference of a couple of months' pay, at least when it comes to the time when an employer gives notice of termination to an employee. This case concerned the question of when an employee had been dismissed - and whether he was entitled to one or three months' notice.

The employer wanted to close its shipping function. The parties discussed the situation and the employer presented at least two different termination notices to the employee. However, neither of these notices were formally given to him.

The employer's responsibility

However, the employer did not believe there was any doubt that the employee had been dismissed during their discussions, i.e. in late November 2006. On the other hand, because several termination notices had been presented to him, the employee only considered these letters drafts and did not believe he had been dismissed until he signed and accepted a written termination notice at a meeting on 4 December 2006.

The lower court and, on appeal, the High Court found in favour of the employee. First, the Court emphasised that the employer is the one with the most obvious interest in securing evidence that notice of termination has actually been given - and that the employee is aware of this.

Second, the Court found that the employer had created uncertainty as to whether the termination notices presented to the employee in November were final, because the employer had negotiated their contents with the employee. Accordingly, the Court found that the employee had not been given notice of termination until the date when he actually signed and accepted a termination notice.

Norrbom Vinding notes: 

  • that the case emphasises that employers should always get written evidence of when notice of termination is given, e.g. in the form of the employee's signature, a certificate of delivery from the Danish postal service or similar proof; and
  • that, failing this, it is for the employer to prove when notice of termination was given in case of doubt.

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