David G. Wong August 23 2017 Clarification is not required when accepting disabled employee's resignation Fasken | Employment & Immigration - Canada David G. Wong Employment & Immigration FactsDecisionCommentIn 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, complainant Helen Razo alleged discrimination on the grounds of disability. The employer denied that it had refused to allow Razo to return to work and claimed that she had resigned.FactsRazo was a long-term employee of Essilor Canada and worked a second job for a different employer. While at work for her second employer, she suffered an injury and, as a result, was off work from both jobs and in receipt of WorkSafe BC disability benefits. In addition, she started collecting disability benefits through Essilor's disability plan. When the benefits carrier discovered that Razo was in receipt of WorkSafe BC benefits, it sought repayment of her disability benefits.After the closing of Razo's disability benefits claim, Essilor requested medical documentation supporting Razo's absence from work or, alternatively, for her to return to work. In response, Razo submitted a doctor's note indicating that she was still disabled.Meanwhile, under the impression that Razo's job with Essilor was no longer available to her, WorkSafe BC assisted her 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 notify Essilor 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 her ability to work limited because of medical reasons. It asked her to provide either medical documentation confirming her inability to work or, if she did not want to return to work, 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". The body of the email stated only "thank you". Upon receipt of the email, Essilor's human resources manager phoned Razo to clarify and advised that:if she wanted to resign, she needed to provide Essilor with written confirmation of her resignation in clear terms; orif she wanted to return to work, she needed to provide a medical note.Following the conversation, 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 the email, Essilor replied, accepting Razo's resignation.DecisionBefore the tribunal, Razo argued that where there is a lack of clarity about whether a long‐term disabled employee truly wishes to resign, the employer should take measures to ensure that this is 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 unclear.Razo argued that Essilor should have confirmed its understanding given that she had a limited education and there was a language barrier; she had a high school education and English was her second language.The tribunal dismissed these arguments finding that, under the circumstances, the employer had acted reasonably. It concluded that the complaint had no reasonable prospect of success and dismissed it on a preliminary basis.CommentWhile it is important for employers to ensure that a resignation is truly intended by an employee, this case illustrates that they have no special duty when regarding resignations of long-term disabled employees and that they can safely accept resignations from employees as long as it is reasonable to do so.For further information on this topic please contact David G Wong at Fasken Martineau DuMoulin LLP by telephone (+1 604 631 3131) or email ([email protected]). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.