Clarification not required when accepting disabled employee’s resignation

July 30, 2017 - by: David Wong 0 COMMENTS

by David G. Wong

In its recent decision in Razo v. Essilor Canada, 2017 BCHRT 133, the British Columbia Human Rights Tribunal dismissed the argument that an employer could not accept the resignation of a long-term disabled employee without making further inquiries.

In this case, the complainant, Helen Razo, filed a complaint alleging discrimination on the ground of disability. The employer denied that it had refused to allow Razo to return to work and claimed that she had resigned.

Razo was a long-term employee of Essilor Canada and worked a second job for a different employer. She suffered an injury while at work for her second employer. As a result of her injury, she went off work from both jobs and was in receipt of WorkSafe BC disability benefits. At the same time, she started collecting disability benefits through Essilor’s disability plan. When the benefits carrier discovered Razo was in receipt of WorkSafe BC benefits, it sought repayment of her disability benefits.

Following the closing of her disability benefits claim, Essilor requested medical documentation supporting Razo’s absence from work or alternatively for her to return to work. In response, she submitted a doctor’s note indicating that she was still disabled.

At the same time, WorkSafe BC, under the impression that Razo’s job with Essilor was no longer available to her, provided her assistance to find work in a different vocation, specifically, putting together a plan to help her find work as a food counter attendant or cashier. Razo did not make Essilor aware of her vocational rehabilitation plan with WorkSafe BC and remained on leave from Essilor.

While continuing her job search for work in a different vocation, Razo contacted Essilor to advise that she would not be returning to work. Essilor explained that there was a difference between Razo resigning and having limitations in her ability to work because of medical reasons and asked her to either bring in medical documentation confirming her inability to work or if she did not want to return to work, to provide a letter of resignation.

Subsequently, Razo sent an email with the subject line “I work at [Essilor] can’t go back to work due to my accident” (sic). The body of the email stated only, “thank you.” Upon receipt of this email, Essilor’s human resources manager called Razo to clarify and advised that if she wanted to resign, she needed to provide Essilor written confirmation of her resignation in clear terms and if she wanted to return to work, she needed to provide a medical note.

Following that call, Razo sent an email with the subject line, “resignation.” The body of the email stated, “I would like to resign effectively due to medical reasons. Many thanks. Yours truly, [Razo].” Following receipt of that email, Essilor sent her an email accepting her resignation.

Before the tribunal, Razo argued that where there is a lack of clarity about whether a long‐term disabled employee truly wishes to resign, an employer ought to take measures to ensure that this is in fact the employee’s intention and decision. She argued that this was particularly important in this case as Essilor had a long‐term disability plan and her first email was not clear.

Razo argued that Essilor ought to have confirmed its understanding given that she had limited education and there was language barrier. English is her second language and she has a high school education.

The tribunal dismissed these arguments finding that under the circumstances, the employer had acted reasonably. The tribunal concluded that the complaint had no reasonable prospect of success and dismissed it on a preliminary basis.

Takeaway for employers

While in Canada it is important that employers are sure that a resignation was truly intended by an employee, this case illustrates that employers have no special duty when regarding resignations of long-term disabled employees and that employers can safely accept resignations from employees as long as it is reasonable to do so.

About David Wong:
David G. Wong is a partner in the Labour, Employment and Human Rights Practice Group and is the head of the Human Rights Practice Group. A Wesbrook Scholar, David's experience in various leadership and community roles continues to assist him in establishing a successful practice in the field. David advises companies on issues involving all aspects of both unionized and non-unionized workforces. David has extensive experience before the British Columbia Supreme Court, British Columbia Court of Appeal, British Columbia Human Rights Tribunal, British Columbia Labour Relations Board and labour arbitrators.
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