Tribunal Addresses Disabled Employee Resignations

In addition to affirming that an employee’s resignation must be clear and unequivocal to be valid, this case tells us that employers do not have a greater onus when it comes to long-term disabled employees who resign. The British Columbia Human Rights Tribunal did not accept the employee’s claim that it was unreasonable in the circumstances for her employer to conclude that she wished to resign without further inquiry.

Background

The employee worked as a technician for the employer (first employer in this case) for over 20 year but also had another job with a different employer. While working at her second job (as a housekeeper), the employee got injured. Due to this injury, the employee was off work from both workplaces and applied for and received workers’ compensation benefits.

The employee, however, was simultaneously collecting disability benefits through the first employer’s disability plan. The benefits provider requested full repayment from the employee when it found out that she was receiving WCB benefits.

Since the employee’s disability file had been closed by the first employer’s benefits provider, the employer asked the employee to provide medical information supporting her continued absence. The employee submitted to the employer a doctor’s note indicating that she was still disabled. As a result, the employer continued the employee’s leave of absence and held her position for when she was cleared to return to work.

WorkSafeBC made a plan to assist the employee find work since the employer was unable to return her to her pre-injury job as a housekeeper; WorkSafeBC, however, was not aware that there was a position waiting for the employee with the first employer. In addition, the employee did not advise the first employer that she was working with WorkSafeBC toward securing a new vocation.

During the employee’s job search with the support of WorkSafeBC, the employee contacted the first employer and advised that she would not be returning to work for them. Per the employer, it was explained to the employee that there was a difference between resigning and having limitations in her ability to return to work due to medical reasons. That is, if she could not return to work, then she needed to provide a medical justification to support her continued absence, and that if she did not want to return to work, then she would need to provide the employer with a resignation letter.

In one of two separate emails, the employee stated in the subject line, “I [the employee] work at [the employer] can’t go back to work due to my accident” and with “thank you” in the body of the email. Following the email, both parties had a telephone conversation, where, per the employer, the employee was asked to clarify what she meant about her accident. In a second email, the employee wrote in the subject line “resignation” and in the body of the email she wrote, “I would like to resign effectively due to medical reasons. Many thanks. Yours truly, [the employee].”

The employer sent the employee an email confirming that they accepted her resignation.

About six months after her email to the employer, the employee filed a complaint alleging discrimination against the employee because they did not allow her to return to work because of her physical disability and failed to inquire whether she needed accommodation. Per the employee, the employer advised her there was no job for her and told her to quit. She stated that the employer failed to provide her with any written correspondence explaining her options and what information it would require from her in each case. The employee also stated that the employer was aware that English was her second language and made little effort or insufficient and inadequate effort to determine her true intentions.

Decision

Since the Tribunal concluded that the employee had no reasonable prospect of establishing that her disability was a factor in the adverse consequence which she had asserted occurred or that the adverse impact she suffered arose from an act or omission of the employer, her claim was dismissed.

The Tribunal did not accept the employee’s arguments; its reasoning included:

[107] All of the evidence suggests that only two parties knew the employee’s position with the employer was still open: the employee and the employer. The evidence also strongly suggests that of these two, only the employee was interacting with WorkSafeBC, and she appears to have said nothing.

[110] Taking into account the employer’s evidence that it held the position open for the employee, as supported by the documentary evidence, the overwhelming evidence contradicts the employee’s assertions about how matters unfolded in September of 2015, and the context of the email exchanges including the September 29 human resources manager’s email, I find that that the employee has no reasonable prospect of establishing that she was told to quit and that the resignation was dictated to her.

[115] The employee also contends that the employer was aware that English was her second language and made little effort or insufficient [and] inadequate effort to ascertain her true intentions. She argues that WorkSafeBC hired “a Tagalog interpreter for meetings and appointments in order to facilitate communications.” However, I note that in her affidavit she actually deposed that “for some of my appointments and meetings with WorkSafeBC (WSBC) they would arrange an interpreter for me” (emphasis added). I also note that she swore an affidavit and gave no indication that she required an interpreter to discuss the very issues that are the subject of this Complaint and the Dismissal Application. Finally, I note that there is no Complaint before the Tribunal alleging discrimination on the basis of race or place of origin.

Takeaway on employee resignations

For an employee’s resignation to be valid, it must be clear and unequivocal when viewed contextually. For a resignation to be clear and unequivocal, it must objectively exhibit the employee’s intention to resign or their behaviour must demonstrate such intention. A question that employers should ask themselves is: “Would a reasonable person assessing the issue objectively understand the employee to have clearly and unequivocally resigned?”

In addition, an employee’s resignation must be voluntary and not made under duress from the employer. If not, the resignation will not be considered a true resignation. That was one of the issues the employee brought before the Tribunal; that is, she claimed that the employer had advised her that there was no job for her and therefore she should quit.

If the overseeing court were to find that there was no resignation by the employee, the employer would most likely be facing a wrongful dismissal claim. Fortunately for the employer in this matter, the Tribunal found that the employee had no reasonable prospect of establishing that she was told to quit and that the resignation was dictated to her.

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