Ontario (Human Rights Comm.) v. Fort Frances (Town) Commissioners of Police (No. 1), 1987 CanLII 8553

Ontario (Human Rights Comm.) v. Fort Frances (Town) Commissioners of Police (No. 1)

1987-02-05

Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE

Kathleen Pattison Complainant

v.

Board of Commissioners of Police for the Town of Fort Frances, Michael Solomon as Chief of Police, and Jack Murray as Deputy Chief of Police Respondents

Date of Complaints: 1985 and 1986

Date of Decision: February 5, 1987

Place: Fort Frances, Ontario

Before: Daniel Jay Baum

Appearances by: Kim Twohig, Counsel for Kathleen Pattison and the Ontario Human Rights Commission Allan G. McKitrick, Counsel for the Board of Commissioners of Police and Michael Solomon and Jack Murray

PREGNANCY — employment in alternative work — BONA FIDE OCCUPATIONAL QUALIFICATION — uniform to be worn by police officer — REASONABLE ACCOMMODATION — dress code — work duties

Summary: The Board of Inquiry finds that Kathleen Pattison was discriminated against because of her sex when her employer failed to assign her alternative work which was available during the period of her pregnancy.

Kathleen Pattison was a Constable with the Fort Frances Police Force. When she became pregnant for the first time she did not wish to work her regular duties and refused to wear her uniform on the grounds that it did not fit her. When she was told that she was required to wear her uniform and report for regular duty she asked for and was granted a leave of absence, but indicated that she was interested in alternative work.

The Board finds that there was alternative work available during this period. Police Clerk-Typists were employed to do dispatch duties and paper work for the force. When Police Clerk-Typists were unavailable, dispatch work was performed by Constables. Ms. Pattison could have been employed to do this work and could have worn civilian clothes to do it. She was not offered this available work.

The Board dismisses Pattison's allegation that the requirement of making her wear her uniform and perform regular duties was discriminatory. At the time these requirements were made, the Board finds that Ms. Pattison was in the early months of her pregnancy and she could have complied.

The Board dismisses a complaint respecting Ms. Pattison's second pregnancy finding that no discrimination occurred.

The Board orders the Fort Frances Board of Commissioners of Police to pay Kathleen Pattison the wages that she would have earned between January, 1985 and May, 1985 had the available alternative work been offered to her.

I. The Complaints

1The initial complaint in this matter was made on February 13, 1985. The complainant, Kathleen Pattison, a Constable for the Fort Frances Police Force since 1979, claimed discrimination on the basis of sex under sections 4(1), 8 and 10 of the Human Rights Code, 1981, S.O. 1981, c. 53, as amended. The claim arose out of a pregnancy, about which more will be said in the following section of this award. Specifically, Ms. Pattison made these assertions.:

A. There was constructive discrimination within the meaning of section 10 of the Code by the requirements of the respondents that during her pregnancy she (i) perform regular police duties; and (ii) that she wear her issued uniform and gunbelt.

In this regard, the Commission asserted there was no reasonable and bona fide requirement for the conditions imposed. As a result, her right under section 4(1) of the Code to equal treatment in employment without discrimination on the basis of sex was infringed.

B. There was a direct discrimination within the meaning of section 4 of the Code because limited duties which would have satisfied the accommodation requirements under the Code had been given male police officers temporarily disabled, and had been denied Ms. Pattison.

C. There was also direct discrimination within the meaning of section 4 of the Code because sick leave in the context of the prevailing collective agreement between the union representing the police officers of Fort Frances and the force had been granted male constables temporarily disabled, and it had been denied Ms. Pattison.

2At the time of hearing on this matter, the Commission asked to amend the complaint. It sought to include what amounted to the same assertions as applied to a second pregnancy of Ms. Pattison that occurred in October 1985, and effectively related to events between January 22, 1986 and July 7, 1986.

3Counsel for the respondents strenuously objected to this second series of complaints. There had been, he stated, ample time for the Commission to have moved to amend the complaints before the hearing on this matter. I fully agree that the amendment to the complaint both could and should have taken place well in advance of the hearing. Yet, having said that, and bearing in mind the important public interests at issue, I have chosen to allow the amendment. I have done so because I do not believe that the respondents were put at risk in any substantial way. They were aware of the facts incident to the amended complaint, and they were well prepared, in my view, to meet those facts.

4Another preliminary matter was raised by the respondents. At the time of this hearing, there was another board of inquiry under the Ontario Human Rights Code being conducted. Its subject was the Fort Frances Police Force and another Constable. Counsel for the respondents indicated that it would be improper for two boards of inquiry to adjudicate on precisely the same facts. I agreed. I made it clear at the start of this Board of Inquiry, and at several points along the way, that my rulings and award would be centred on the complaints before me. The complaints of Ms. Pattison were not the complaints being heard by the other board of inquiry.

II. Findings of Fact

A. BACKGROUND

5Ms. Pattison became a member of the Fort Frances Police Force in January 1979. As such, she held the rank of Constable, and was trained to carry out the full responsibilities that attend that office. More will be said concerning her employment record. It will suffice at this point to note that before the incidents giving rise ot these complaints it could be said that Ms. Pattison was seen as a competent officer. She was then and remained the only female Constable serving on the Force.

6The Fort Frances Police Force is small in number. In early 1985, there were eighteen members on the Force. This total included the Chief, the Deputy Chief, four Sergeants and twelve Constables. Later in 1985, pursuant to a specific budget directive, the Force was increased by two Constables who were given line responsibilities.

7There was, in addition, a civilian component to the Force. This included four full-time Police Clerk Typists, a Meter/By-Law Enforcement Person, an Executive Secretary to the Chief and Deputy Chief, and a Part-Time Police Clerk Typist who was employed in April 1985. I note now, and the point will have more meaning later, that the Police Clerk Typist rate was about $7 to $8 an hour while that of a Constable was about $15 an hour.

8The Part-Time Police Clerk Typist was not employed on a regular basis. Rather, that person was called on an as-needed basis. Deputy Chief Murray indicated that the position no longer exists.

9The Police Clerk Typists perform a number of roles within the office. They serve as dispatchers. In this regard, they log in-coming calls and out-going responses in the office communications room. They have direct contact with police on patrol. They also retrieve information from the Canadian Police Information Centre computer for intelligence use by the Force. More generally, they perform a record-keeping function.

10During their work as Police Clerk Typists, civilian dress is permitted. Unlike the Constables and their officers who have contact with the public, uniforms are not required.

11Typing skills are required as a condition of employment. This would seem obvious from the nature of the job. However, the evidence did indicate that from time to time such skills were not required when Cosntables substituted for absent Clerk Typists.

12From 1984 until May 1985, the Police Clerk Typists worked three shifts which began at 11 p.m., 7 a.m., and 3 p.m. On May 19, 1985, the shift schedule, like that of the uniformed force, changed from three shifts to two twelve-hour shifts.

B. MS. PATTISON AND THE EVENTS RELATING TO HER FIRST PREGNANCY

13Ms. Pattison began her career with the Fort Frances Police Force as a Constable Fourth Class in January 1979. By December 1984, she held the position of Constable First Class, the highest rank available for a Constable.

14Until December 1984, she performed all those duties one associates with the work of police officers in a small community. There was traffic control, responding to citizen requests for police assistance, criminal investigation and arrest, and community education.

15In this regard, Ms. Pattison, like any other Constable, was expected to work any of the then required three shifts starting at 11 p.m., 7 a.m. and 3 p.m.

16Ms. Pattison, herself, explained the reality of working a regular shift as a Constable. Usually there was a Sergeant, or a designated person in charge of the shift, and for the whole of the Town there were three Constables on patrol. In 1982, then Constable Pattison met with the other two duty Constables for coffee. This was discovered by the Deputy Chief, and all three were suspended for a period of time because they had, in effect, left the Town without protection.

17In any event, in December 1984, Ms. Pattison was assigned as Duty Officer for the Provincial Court (Criminal Division), Town of Fort Frances. This was done by memorandum in late 1983 from Chief Solomon, and Ms. Pattison did not question the order. Further, she was expected to and did dress in the required uniform of the Fort Frances Police Force, and she carried the required gunbelt on that uniform.

18Ms. Pattison described the work of Duty Officer. It is fair to say that in Ms. Pattison's experience, the work was not demanding. It consisted of three elements: (a) paperwork; (b) escorting prisoners to and from lockups and the court; and (c) assisting the court in maintaining order. Ms. Pattison described her duties in this way:

[Duty Officer] was a liaison between the police office and the courthouse. It involved preparing all the cases that were going to court including filing all the informations with the court. It involved a lot of paperwork . . . bringing these items over to the Crown Attorney, briefing him on the cases, subpoenaing witnesses for all cases that were coming up, advising other officers when the cases were coming up, keeping an accurate record of all the dispositions of the court . . . And it involved . . . sending fingerprint forms to Ottawa and having those processed . . .

It was my responsibility to open and close court, be present while all court was going on, to call witnesses from outside the courtroom and bring them into court, brief them on courtroom procedure, bring prisoners over from the gaol and look after them while they are in court, return them to the gaol, and to assist the Crown Attorney in any way possible.

19It is fair to say that during her tour as Duty Officer, Ms. Pattison had a rather comfortable job. Her shift time was stabilized; only day hours were required of her. Further, while problems could arise in relation to prisoners or outbursts of violence in the court, Ms. Pattison had experienced none of that. She felt there was always backup available. Other officers could and sometimes did help her escort prisoners to and from the court. And, while court was in session, there generally were other police officers present waiting to testify in docketed cases.

20From the viewpoint of the Deputy Chief and the Chief, however, the very nature of the job of Duty Officer presented an important concern. There tended to be a separation between the Duty Officer and the normal work of the Force. They determined that one year was sufficient for a tour of duty. Toward that end, a notice was posted in the police office declaring the position of Duty Clerk open for the next year. This was done sometime in October. Ms. Pattison asked if she could be re-appointed to the position, and the answer was that she was not eligible. The decision had been made to have her return to regular duty as a Constable. Accordingly, the Deputy Chief by memorandum informed Ms. Pattison that she was to return to "shift work on December 30, 1984 on the midnight shift." In her place, another Constable was designated as Duty Officer.

21Nine days earlier, on November 19, 1984, Ms. Pattison had informed Chief Solomon that she was pregnant. It must be emphasized at this point that none of the parties attribute the re-assignment to regular police shift work to other than a decision made by the Chief and Deputy Chief in the exercise of good faith in terms of what they saw as the best interests of the Force.

22Shortly before she was to begin her new duties, on December 21, 1984, Ms. Pattison said that she began to experience substantial physical discomfort. She testified:

I was having extremely bad headaches. I had seen my doctor on two or three occasions so far in my pregnancy over these headaches. I was also nauseous. I had an earache the previous week . . . the middle of December I had an earache that was still bothering me on occasion. I was sleeping all the time. I was very tired, and I found that I was sleeping twelve hours in a row. When I could sleep I would just sleep and do nothing else.

23On December 21, 1984, Ms. Pattison sent the following memorandum to Deputy Chief Murray:

As per my doctor's recommendation, beginning December 25, 1984, I will be off duty ill until further notice.

24On the same day, the Deputy Chief replied: "I require a doctor's certificate indicating the nature of your illness and the probable duration of the illness prior to the commencement of sick leave." I note and emphasize that Ms. Pattison said nothing in her memorandum concerning sickness about which she testified. The most that the Deputy Chief had before him was the fact that Ms. Pattison was pregnant, and that she intended to be off duty utilizing her sick leave credits until further notice.

25Before proceeding further, comment must be made concerning the nature of the medical evidence relied upon by the Commission. It chose not to call Ms. Pattison's attending physician, Dr. B. T. Johnstone of Fort Frances. Rather, the Commission chose to rely on letters written by Dr. Johnstone in connection with Ms. Pattison's two pregnancies, and the testimony of Ms. Pattison as to her understanding of discussions with Dr. Johnstone.

26In the result, therefore, giving the Commission's evidence the most favourable cast, I can do no better than to refer to the correspondence that Dr. Johnstone did provide, and, in that regard, to draw conclusions from the plain meaning of the words used.

27I return now to the request of Deputy Chief Murray for a doctor's certificate concerning Ms. Pattison's sick leave application of December 21st. In the context of Ms. Pattison's rather terse note indicating that she intended to book off sick from December 25th until further notice, it was entirely appropriate for the Deputy Chief to request a doctor's certificate. He did this following a discussion with Ms. Pattison on December 21st. He recounted the discussion from notes taken at the time of the meeting:

A. . . . I had requested a doctor's slip. she said, "I'll give you one when I return." I said, "When will that be?" She said, "April." I then asked, "What is your illness?" And she replied, "I'm pregnant." I said, "That's not an illness." I then instructed her to get the doctor's slip prior to booking off sick. She took my memo and left the room without saying anything.

28In her testimony, Ms. Pattison said that from the early part of December she suffered certain rather specific illnesses. These included nausea, earaches, headaches, and excessive sleep. These were the illnesses incident to the intended sick leave.

29The note that Ms. Pattison obtained from Dr. Johnstone, dated December 21, 1984, but obtained on December 24th, stated:

Kathleen Pattison is now 12 weeks pregnant. Her girth is increasing and her gunbelt has now become a problem. Because of her condition, she should not, in my opinion, be exposed to any potential[ly] violent or physically demanding situation.

30With good reason, the note was not satisfactory to Deputy Chief Murray. It said nothing about her being sick. Rather, the note related to the extent of her pregnancy, and statements concerning wearing a gunbelt and the kind of activity to which she should not be exposed during the course of her pregnancy.

31The Commission argued that the note indicated that Ms. Pattison, in the view of her physician, was not able to perform her regular duties because she couldn't wear a gunbelt and she should not be subjected to potentially violent or physically demanding situations. She, therefore, according to the Commission's argument, was sick within the meaning of police regulations and the existing collective agreement between the parties.

32In the abstract, there may be some point to the Commission's argument. But, it had absolutely no relevance to the facts then at issue. Ms. Pattison did not book off sick starting December 25th because of a demand that she wear a gunbelt or be subjected to potentially violent or physically demanding situations. Rather, she booked off sick because of certain specific symptoms mentioned above. The note of Dr. Johnstone, dated December 21st, simply did not respond to the claims made by Ms. Pattison.

33In any event, Deputy Chief Murray telephoned Ms. Pattison on the date he received the letter from Dr. Johnstone — December 24th. Again, referring to notes taken at the time, Deputy Chief Murray testified:

I called Pattison and advised her that her letter from Doctor Johnstone is not acceptable as a sick slip. I advised her that pregnancy is not an illness and she cannot use that as grounds for sick leave. She then said "Well, neither is a broken ankle or a leg a sickness." She said, "My doctor said I can't be on the road. I'll just keep telephoning in every day with a headache or upset stomach." I then said, "You're ordered to get a proper sick slip before booking off sick, or you will not be paid."

She then went on to argue about [Constable] Vittie wanting to work when his shoulder was sore, but was not allowed to until he was fit. She said that she was "temporarily unfit." I told her I wasn't arguing with her and she would have to suffer the consequences if she did not show up for work. She said, "Well, I'm not coming in." And then I told her that there are other avenues to take if she can't work, and sick leave does not fall into the category.

34In this conversation, Ms. Pattison pressed for a determination of the kind of duties she would be assigned in the context of the letter of December 21st from Dr. Johnstone. Deputy Chief Murray was not so much concerned with the duties to be assigned as he was with understanding the precise reasons for Ms. Pattison's anticipated absence. [However, it is fair to say that the Deputy Chief assumed that Ms. Pattison would carry out normal police duties, once she reported to work.]

35Ms. Pattison indicated to the Deputy Chief that the clinic where Dr. Johnstone practiced was to be closed for the holidays. She said that in accord with what she believed to be the regulations of the force, she would telephone in sick each day. On the days that she had been scheduled to work between December 25 and January 11, Ms. Pattison telephoned that she was sick. In that regard, she cited various specific ailments such as earache and sore throat.

36On December 28th, Deputy Chief Murray had a discussion with Dr. Johnstone. His notes taken at the time recount the doctor's comments:

Spoke with Dr. Johnstone at 1:20 p.m. He advised that Pattison is experiencing a normal pregnancy and he gave her the letter indicating that.

She is not sick and [she] was told by the Doctor that she was fit for duty.

He merely was suggesting that, if possible, she should be placed in a position so she would not be subject to violence.

Dr. Johnstone advised that he told Pattison that it is an established fact that pregnancy is not an illness.

He also said that there are many nurses, etc. who work up to three weeks before birth and lift heavy patients, etc.

Dr. Johnstone said, "I won't buy that, that she is unfit to work."

37By letter dated January 3, 1985, Deputy Chief Murray acted against Ms. Pattison. He recited his order to her to obtain a "proper sick slip before booking off sick . . ." This was not done. Accordingly, the Deputy Chief wrote:

You have chosen to ignore my orders and have since phoned in sick with a headache, sore throat, the flu and an upset stomach on eight occasions.

As indicated to you, you have not been credited with any days since December 25, 1984 and will not be paid for those days.

Due to the foregoing, charges under the Police Act are pending.

38In determining that charges should be laid under the Police Act, the Deputy Chief thought that more was involved than a violation of a direct order by Ms. Pattison. He believed that Ms. Pattison intended to make fraudulent use of her accrued sick leave. When she earlier indicated that she intended to be absent from work until April, the Deputy Chief looked at her accrued sick leave and found that April would have been the time when that leave would be exhausted. [Ms. Pattison's accrued sick leave by December 1984 totalled about seventy days.]

39As a general matter, it is not my province to pass upon whether then Constable Pattison sought to make improper use of accrued sick leave. My responsibility is to determine whether specified provisions of the Human Rights Code have been violated. In this regard, as will be made clear in that section of the award dealing with conclusions of law, intent to discriminate is not necessary to a finding of violation, though it may have some bearing on the element of damages. To the extent, then, that there may be a relationship to the element of damages, evidence going to intent by Ms. Pattison intentionally to make improper use of accrued sick leave is appropriate.

40In the result, however, I do not believe that such evidence was sufficiently strong to allow for the conclusion of intent to defraud. Rather, I believe that Ms. Pattison simply attempted to determine and act upon the benefits which she thought were hers as a regular member of the police force. By the same token, I believe that Deputy Chief Murray had, in his view, evidence that raised real questions concerning the claim to sick benefits. After all, the employment determinations relating to pregnancy had not arisen before. Ms. Pattison was the only female member of the force, and this was her first pregnancy.

41In any event, having received the letter concerning pending charges, Ms. Pattison immediately employed counsel. On January 4th, the day after the charge letter was received, Ms. Pattison's counsel wrote the Deputy Chief. The thrust of that letter was again on the ability of Ms. Pattison to resume regular duties as a constable. The letter did not deal with the claimed ailments of Ms. Pattison reported from December 25 to January 11. In the result the Deputy Chief did not respond to the letter.

42On January 11th, Ms. Pattison presented the Deputy Chief with another letter from Dr. Johnstone. Addressed to Chief Solomon, the letter stated:

I saw Kathy Pattison on the 31st of December, 1984 and at this time she was complaining of severe headache, nausea and vomiting from her pregnancy.

She has continued to complain of nausea, vomiting, headache, sore throat and sore ears throughout the period from December 31st to January 11, 1985 and says that this all started on the 21st of December 1984. She was advised to rest in bed on the 31st of December 1984 until her problems [were] resolved and [she] was therefore unfit for work from that time until the present time.

43As a direct result of the note from Dr. Johnstone, dated January 11th, Chief Solomon determined that she should be paid sick leave time from December 31 to January 11, 1985.

44Commission counsel argued that nowhere in the note of January 11th did Dr. Johnstone use the word "sick" or "ill." The point made was that the note really was one solely related to the pregnancy of Ms. Pattison, and that by according her sick leave, the police force in fact treated her pregnancy as a sickness.

45With respect, I disagree. Reading Dr. Johnstone's note of January 11th leads me to the conclusion that for a period of time during the course of Ms. Pattison's pregnancy, she suffered certain ailments, which though normal to a pregnancy, incapacitated her. I refer specifically to the reported headaches, earache, sore throat, and nausea.

46Commission counsel also argued that the demand made of Ms. Pattison for a physician's note somehow was different in kind from what was demanded of male constables faced with illness. Again, I disagree. Little needs to be added by a physician with regard to a broken leg, or a known injured shoulder. Ms. Pattison, however, for the period from December 25 to January 11, seemed to represent that the cause of her absence, which she had said would extend to April, was the fact of her pregnancy. In reality, that absence was attributed to specific ailments flowing from the pregnancy which incapacitated her. All that the force wanted was an indication of the nature of these ailments. It did not even ask for objective authentication. It accepted the statements as reported to Dr. Johnstone by Ms. Pattison. What the force could not accept was the bald claim to sick leave solely on the basis of the pregnancy.

47Sick leave was denied for the period up to December 31st. The reason was that Dr. Johnstone's letter of January 11th did not touch upon the time before December 31st.

48However, when the time came to hear the charges against Ms. Pattison by the Deputy Chief, what the parties described as a "plea bargain" was entered. Sick leave for the period before December was granted on condition that Ms. Pattison plead guilty to a count of insubordination as a result of her response and attitude to the Deputy Chief in earlier exchanges.

49Up to January 11th, the dominant concern of the Deputy Chief and the Chief in relation to Ms. Pattison was to establish that pergnancy, itself, did not excuse her from duty, and that if she claimed sickness arising from the pregnancy, a doctor's note simply reflecting her reported sickness was to be required.

50On January 12th, however, another concern, one that was very different from the ailments claimed by Ms. Pattison was raised. In effect, she said she was unable to carry out regular police duties for two reasons:

1. Her doctor advised her not to wear a gunbelt.

2. Her doctor advised her not to place herself in potentially violent or physically demanding situations.

51There was a third point which should be separately listed. Ms. Pattison said she was unable to wear the existing uniform. It was too tight. Until she received instructions on how to have it altered, or until she received a new maternity uniform from the force, she felt she had no choice but to wear civilian clothes.

52In the result, therefore, Ms. Pattison asked for alternative work. She was able to point within the department to situations where other officers having been injured or otherwise incapacitated were given restricted duties.

53Before dealing with the three listed points, and the claim for restricted duties, I think it useful to note the state of Ms. Pattison's pregnancy on January 12, 1985: She was about fifteen weeks pregnant, and she had gained about eight pounds. In the view of Deputy Chief Murray, her physical appearance had not altered except to the extent that she seemed somewhat heavier.

54What can best be described as a series of confrontations between Ms. Pattison and her superiors began on January 12th. She reported for duty in civilian clothes. She explained that she was unable to wear the uniform provided. In the result, the Deputy Chief responded with a written order to Ms. Pattison:

You are ordered to conform to the Rules and Regulations of the Fort Frances Police Force and the Police Act of Ontario with regard to wearing of uniform.

You are assigned to regular police duties as required by the Rules and Regulations of the force and the Police Act of Ontario.

55Within ten minutes from receiving the Deputy Chief's order, Ms. Pattison replied in writing:

This is to advise you that I am not able to comply with your order issued to me at 9:10 a.m. this date. My uniform pants do not do up. My uniform shirts are too tight across the chest and my doctor has advised me that I am not to wear a gunbelt. Dr. Johnstone also has informed you by letter that there are certain situations that may arise in daily patrol that I am not to be exposed to.

I regrettably am physically and medically unable to conform to your order.

56After reading Ms. Pattison's memorandum of reply, Deputy Chief Murray suspended her from duty. In this regard, she was ordered to hand in her badge, gun, and identification card. This was done.

57I pause in the narration of events to make these observations:

1. In November Ms. Pattison informed Chief Solomon of her pregnancy. Between November and January, she had had several visits with her attending physician, Dr. Johnstone. It is fair to say that although this was her first pregnancy, Ms. Pattison was aware of the changes that would occur to her body, and the "normal" nature of the ailments she suffered during the early part of the pregnancy.

2. Ms. Pattison continued as a duty officer for the court during the early weeks of her pregnancy. She knew and accepted the force requirement that she wear a uniform and a gunbelt.

3. Whatever her objections might have been to resuming regular duties, the first point of confrontation with the Deputy Chief was her failure to be in uniform on January 12th.

4. Ms. Pattison knew that when she was to report to work on that date, she was to be in uniform. She knew the state of her body, the weight she had gained. Surely she had to know before she reported to work whether the uniform would fit. Yet, Ms. Pattison said nothing to the Deputy Chief except at the time she was to be on duty, and then she appeared in civilian dress.

5. From the point of view of the Deputy Chief, and it was a point of view communicated to Ms. Pattison, the issue of her regular duties could not be approached until such time as she was in proper uniform.

58Commission Counsel argued that the Oath of Office of a Constable and the Rules and Regulations of the Fort Frances Police Force allowed both for restricted duties and variation in the kind of uniform that might be worn, if the Chief so ordered. I accept both points. However, Chief Solomon did not at the time provide for an exception to the well-understood requirement that a uniform was to be worn on duty.

59I return now to the chronology of events. Chief Solomon did not confirm the order of suspension.

60The next day, Ms. Pattison again reported to work in civilian clothes. This time, however, according to Sgt. D. Bruce Henry, the officer then in charge, she was wearing maternity clothes. Sergeant Henry cautioned her as to the uniform requirements. Ms. Pattison replied, "Do you want me to have my stomach sticking out?" Sergeant Henry answered, "No, but the Rules and Regulations state how you are to dress." It was made clear to her that she would not be paid unless she were in uniform. Ms. Pattison left the office.

61On January 14th, additional memoranda flowed between Ms. Pattison and her superiors. Ms. Pattison continued to wear civilian clothes. However, she informed Chief Solomon of a willingness to have her uniform altered if she were given instructions as to the nature of the alterations to be made. More to the point, she asked for a maternity uniform without a gunbelt:

This is to advise you that my last issue of police clothing (shirts and pants) does not fit me. Please advise me on how to have my uniform altered so that it will comply with Force regulations. As I am still under a Doctor's order not to wear a gunbelt, please advise whether or not the absence of a gunbelt while wearing a modified uniform would still be in contravention of the Rules and Regulations. I would also like to request a proper maternity uniform to be issued to me as my 1985 issue. It's my understanding that they are available.

[I note that there was no evidence indicating that the Fort Frances Force had in inventory any maternity uniforms. Ms. Pattison, it will be recalled, was the only female member of the Force.]

62Chief Solomon replied to Ms. Pattison on the same day. He asked that she provide him with (a) details, including price, as to a maternity uniform; (b) her doctor's order in writing that she should not wear a gunbelt; and (c) whether she would be willing to work at regular duties if a modified uniform were provided. At this point, I will deal only with point (a) of the Chief's memorandum.

63On January 15th, Ms. Pattison indicated that with the permission of the Chief, she would alter her uniform:

I request permission to alter my last issue of uniform so that it will be adequate to cover my expanding body during my pregnancy. Please advise what alterations are suggested and are permissible so as to conform with the Rules and Regulations.

I also request permission to work in civilian clothing until alterations can be made to my present uniform, or until a suitable uniform is issued.

Chief Solomon responded:

You may not work in civilian clothing. You have been aware of your pregnancy for quite a while and should have known you would change in size.

You have permission to alter your uniform at your own cost in the same way as any other officer who has gained weight has done in the past.

64Between January 13 and 22, Ms. Pattison reported for work in civilian clothes. She was assigned no duty, and she returned home without having been paid.

65On January 22d, Ms. Pattison reported for duty in a uniform that she, herself, had modified. In effect, she tailored the uniform into a maternity outfit. The pants front had been cut out. An elastic patch of light blue colour had been inserted as a front panel. Her police shirt had been squared at the bottom and was worn outside the pants.

66Her uniform was totally unacceptable to Deputy Chief Murray. He said to her that she looked "ridiculous and stupid." She looked, in his words, like a "clown." The expandable pouch was not seen as sensible to the Deputy Chief "at the time."

67It was the Deputy Chief's view that Ms. Pattison's physical appearance had not changed in any substantial way. Her pregnancy was still in the early stages. Delivery was not expected until July. She had a weight gain of about eight pounds. All that was required at the time she was to have reported for regular duty was for her to shift some buttons to give herself a bit more room. At the time, that is in January 1985, the Deputy Chief simply saw no need for a maternity outfit.

68At a later point that day, the Deputy Chief asked Ms. Pattison to wear her tunic and parka. The following occurred:

I approached Pattison and asked her to wear her tunic and parka tonight. She replied that her tunic doesn't fit and she hasn't had it altered. It [sic] told her to get it and show me. She put it on and said she couldn't button the two bottom buttons because it would be too tight. I said that with very little alterations it should fit. She then said, "Do you expect me to carry a gun?" And, I said, "Yes." She said, "I can't. The doctor says it's too heavy." I said, "Well, you had better have the doctor give us a letter to that effect.

The two bottom buttons were undone . . . I felt that they could have been done up. She didn't want them done up. I felt that with very little modification by moving the buttons, it could have been very comfortable.

69The Deputy Chief confirmed that the Force has a legal responsibility to provide officers with uniforms. However, he stressed that such a uniform had been provided Ms. Pattison. At the time in question, there simply was no need for the Force to provide another uniform. I agree with this position. The buttons could have been moved and the uniform have been made to fit in January 1985.

70What kind of uniform would have been necessary in February or March were not questions then before the Deputy Chief. (It is clear to me, however, that at the point in time when the uniform could no longer be expanded, there would have been an obligation on the Force to have issued another uniform that would have been suitable.)

71The next day, Ms. Pattison was ordered to appear for inspection in the Chief's office. Present were the Chief, the Deputy Chief, Ms. Pattison, and Constable Black. The Chief explained what he believed to be the responsibilities of Ms. Pattison as a Constable. This included the requirement to wear the uniform designated by the Chief as appropriate. For her part, Ms. Pattison focussed on her desire for restricted duties.

72Chief Solomon asked Ms. Pattison if she understood what he had said. Her answer was "not really."

73I believe it was perfectly clear that Chief Solomon and Deputy Chief Murray both communicated their expectation of Ms. Pattison that she wear the prescribed dress uniform of the Fort Frances Police Force. Ms. Pattison made her position perfectly clear: She had no intention to wear the prescribed uniform. Nor was she willing to wear the prescribed gunbelt. Nor was she willing to place herself on regular police duties.

74The decision of the Chief and the Deputy Chief as to uniform was made at the early stage of Ms. Pattison's pregnancy. I noted before that delivery was expected in July. As a finding of fact, there was no substantial outward change in physical appearance in December and January. She had gained about eight pounds. With little difficulty, her uniform could have been altered by moving some buttons to accommodate the weight increase. At the early stage of her pregnancy, the responsibility for making this alteration was that of Ms. Pattison. Not until the issued uniform was beyond the point of reasonable expansion was the Force required to provide another uniform.

75Commission Counsel introduced evidence going to the kind of uniform worn by the Meter/By-Law Enforcement Officer. During the summer, that officer was permitted to wear a blouse outside of her pants. However, I do not think there is either analogy or precedent in this. Ms. Pattison was a regular member of the police force, expected to carry out duties similar to those of other constables. The Meter/By-Law Enforcement Officer simply did not perform the duties of a constable on regular patrol.

76The fact is that the conflict relating to wearing the gunbelt and the assumption of regular duties did not arise. What conflict there was centered upon the uniform Ms. Pattison was to wear. In the result, she refused to wear that which was reasonably required at the time in question, that is, at the early stage of her pregnancy.

77I will, however, deal with the questions relating to the gunbelt, and her request to be assigned alternative duties. Both requests, she said, were made on the basis of her doctor's orders.

78I do not believe the facts warrant such findings. I will deal first with the matter of the gunbelt. Dr. Johnstone's "direct" evidence comes to the Board of Inquiry only through his somewhat attenuated correspondence.

79There simply was no evidence that Dr. Johnstone ordered Ms. Pattison not to wear a gunbelt. Rather, the evidence is that Ms. Pattison went to Dr. Johnstone and said that the gunbelt was uncomfortable. All that Dr. Johnstone did was to reflect the view of discomfort communicated to him by Ms. Pattison. He never said, nor did he ever imply that wearing the relatively light gunbelt perscribed by the Force would be harmful either to Ms. Pattison or the child she was carrying.

80There remains the issue concerning regular duty. There is absolutely no doubt that Chief Solomon intended Ms. Pattison to undertake the regular duties of a constable. It is true that Dr. Johnstone wrote that he personally opposed such work for Ms. Pattison if it were to involve potential danger or physical stress.

81If such evidence had been the end of the matter, there might have been an objective basis for Ms. Pattison to decline such an assignment, and to request such other duties as might have been assigned to other officers who had been incapacitated. But, Dr. Johnstone's statement was not the end of the matter.

82Ms. Pattison, herself, had some rather strong feelings about the kind of job she could perform. The job that seemed to stand foremost in her mind was that of duty officer for the court. Ms. Pattison, and for that matter the Commission itself, argued strenuously for her right to that job as alternative employment. They saw it as a reasonable accommodation to switch the constable who had been awarded the job, and to give it to Ms. Pattison.

83Earlier in this award, I attempted to describe the job of duty officer. At one level, the job is indeed one of handling papers and assisting the court and the Crown Attorney. At another level, however, the job of duty officer involves the very kind of potential danger and risk of strenuous physical activity about which Dr. Johnstone warned. The duty officer is charged with the responsibility of escorting prisoners from the lockup to the court and back again. Moreover, the duty officer remains the visible symbol of governmental force in the courtroom. It is the duty officer who practically assists the court in maintaining order. And, practical in this sense means taking those measures necessary to subdue or stop violence from occurring.

84Deputy Chief Murray put the matter well when he spoke of the possibility of the duty officer being able to call for backup in the event of violence: "I think if something happened, they [the duty officer] would be in the midst of it, and they wouldn't have the chance to go to a phone to call for help."

85Apparently, Ms. Pattison understood the possible risk. She was willing to carry a weapon on the job, if it had been assigned to her. What she asked was that it not be a gunbelt, but, for example, a shoulder arm.

86In the first instance, the presence of an armed duty officer was designed by the police to prevent violence from happening. There was some evidence that this was more symbol than reality, that the incidence of violence in the criminal court was tantamount to being non-existent. That may be. But, I repeat, the intent of police policy was to make the symbol real. It was good that violence had not happened, but the risk was always there, and the armed duty officer had to be competent to deal with that risk.

87I believe Ms. Pattison understood the potential risk connected with the job of duty officer. I believe she determined that the risk incident to the job was one that she would accept. When she made that decision, however, she, in effect, signified a capacity to function as a full member of the police force.

88She was not incapacitated from performing the job of regular patrol because of her pregnancy. She was not in the position of the constable who suffered fainting spells while on duty, or the constable who had injured his shoulder and was unable to perform normal duties.

89These determinations are made in a context. Ms. Pattison was asked to assume normal patrol duties in the early stages of her pregnancy, that is, within the first three to four months of that pregnancy. Her physical appearance had not substantially altered. She had gained about eight pounds. Her pregnancy, according to her attending physician, was at that time normal.

90The order to assume regular duties must be measured at the time it is given. It was not to be assumed by Ms. Pattison that that order was to be effective throughout the pregnancy.

91Clearly, there was an obligation on the part of the Force to re-evaluate Ms. Pattison's capacity to perform as the pregnancy progressed. Clearly, too, this could best be done in consultation with Ms. Pattison and her physician. Deputy Chief Murray testified: "Well, there would come a time when, if she was obviously pregnant, that she wouldn't be able to be in a uniform . . . She wouldn't be fit to do regular police duties." Then she would have been taken off regular patrol, and in all likelihood other work would have been found for her.

92It might have been better if the Chief or the Deputy Chief had offered Ms. Pattison such assurances in December. What Ms. Pattison seemed to have done was to assume that the order issued in December would apply throughout the pregnancy.

93As I stated, the reasonableness of the order must be measured in terms of the time of Ms. Pattison's pregnancy, and, in that regard, her physical condition at that time.

94I return now to the meeting of January 23d. A confrontation had taken place. Ms. Pattison apparently determined that she could not have her way, and asked for a leave of absence which was granted.

95It was at this point that a new status was given to Ms. Pattison by the Force. The Chief and Deputy Chief had no doubt what Ms. Pattison wanted. She sought police work that would not involve regular patrol in full uniform. She was capable of performing that work in December and January. By granting her a leave of absence, the Chief, in effect, ended the confrontational issue of assuming regular patrol work in full uniform.

96However, Ms. Pattison remained a member of the Force. She was relieved of her regular duties while on leave. But, I repeat, she remained a member of the Force. She was not free to do with her time as she chose. As a member of the Force, she could not take other employment without the permission of the Chief. Indeed, she sought permission from the Chief to seek other employment on February 7th, and her request was denied.

97Both the Chief and the Deputy Chief knew that Ms. Pattison wanted alternative work. They knew this on January 23rd. When the leave of absence was granted, effective January 24th, Ms. Pattison was freed of the responsibility of reporting to work in regular uniform, and, in that regard, the obligation to be on patrol. However, she remained open to other employment with the Force, if and when it became available. There was no doubt in the minds of the Chief and the Deputy Chief that Ms. Pattison both wanted, was available, and was physically able to do such other alternative work as might become available during the pendency of her leave.

98I come now to the matter of available alternative work and the conditions upon which it was offered.

99However, before proceeding further, there are a few preliminary issues to consider. For the sake of clarity I will deal with them in itemized fashion:

1. Commission counsel argued that the work of the Force could have been expanded to include alternative assignments for Ms. Pattison. In making that argument, there was the suggestion that budget was not a consideration. For example, Deputy Chief Murray quite candidly said that the potential for police work probably was limitless. A great deal could have been done in terms of community education. Budget considerations, however, limited the scope to but a few hours.

The response of Commission counsel was that the Force took on two new constables during the period in question. Surely, this demonstrated not only that there was additional work, but that the Force might have allocated some of that work to Ms. Pattison.

With respect, I disagree. The employment of the new constables was done pursuant to budget allocation as line items. They were to be involved in regular patrol duties. They were not hired to carry out alternative duties.

2. In asking what alternative duties existed from January 24th to the date of maternity leave, I do so in the context of the then prevailing budget of the Force, and the policy determinations that had been made relative to the expenditure of allocated monies.

For example, on April 17, 1985, the Force made a decision to employ a part-time Clerk Typist. This person was a casual employee who was to fill in when regular Clerk Typists were absent. The result of such employment significantly eliminated or lessened the need for the Force to ask its Constables to substitute for absent Clerk Typists.

The decision to hire the part-time Clerk Typist was a budgetary matter. It is not one that the evidence calls upon me to question.

3. My analysis in this portion of the award relates to the period of the first pregnancy, from January to July 1985.

100I come now to the available work from January 24, 1985. The evidence makes it very clear that alternative work historically has been offered by the Force not only for officers who had been incapacitated, but also to fill positions on a temporary basis that have been necessary to the support of the regular Force.

101There were two primary positions which Commission counsel argued should have been made available to Ms. Pattison, namely that of Police Intelligence Coordinator, and Duty Officer for the Court. I have already discussed the Duty Officer position. It is my finding that this was not alternative work as such. Moreover, though perhaps to a lesser degree, it involved precisely the kind of danger risk and potentially stressful physical activity that Ms. Pattison was determined to avoid. Finally, the position had been filled in the regular course by a member of the Force.

102While argument indeed was made for the position of Intelligence Coordinator, the evidence is beyond question that Constable Barnard had a preferential claim to the job. Ms. Pattison acknowledged this fact. Counsel for the Commission in her Reply to the Respondents' Argument also accepted Constable Barnard's preference.

103This, however, does not end the matter. There was other significant alternative work performed by regular members of the Force on a frequent basis. I refer specifically to the work of the Clerk Typists. The testimony of Constable Kenneth Richardson illustrates the point. Constable Richardson at the time of his testimony had been a regular member of the Force for more than five years. He said:

Q. Have you, as a police officer, ever been assigned to dispatch duties?

A. Yes, I have.

Q. For a shift?

A. Yes.

Q. How often would that have happened?

A. In the past it has happened reasonably regular[ly] . . . [A]t one time there were shifts that were short a radio dispatcher occasionally.

Q. Was it usual for a police officer [to do] that kind of work if you were short-handed?

A. Yes, it was.

Q. Do you recall whether in the period of January 1985 through to June 1986 there was a shortage in the way of dispatchers?

A. I can recall that at the time of this situation there were times when we were short, yes. I couldn't say how many . . . I do recall thinking that I felt Constable Pattison could have been there doing the job, and it would have been easier on the officers involved.

104The evidence of Constable Richardson was affirmed by other Constables, and it was not disputed by the Deputy Chief. In substituting for absent Clerk Typists, a Constable did not have to be disabled. There was important support work that had to be done, including that of radio dispatch. The Force made the decision when the need for that support required the substitution of a Constable.

105Until April 17, 1985, the decision to substitute a Constable for an absent Clerk Typist was made frequently. For Constables, this meant frequent overtime opportunities. For the Force, it meant the payment of salaries more than twice the level of that paid for the absent Clerk Typist. Such was the difference in income between the Clerk Typist and the Constable.

106At no time was Ms. Pattison offered the opportunity to substitute for absent Clerk Typists. At no time, including during the course of the hearing on this matter, did the Force offer an explanation as to why Ms. Pattison was not asked to substitute for absent Clerk Typists.

107Surely, the reason could not have been rooted in cost. While it was true that Constables earned about twice as much as Clerk Typists, the force frequently was compelled to pay on an overtime basis to substituting Constables.

108Nor could it be said that since Ms. Pattison was on an approved leave of absence without pay she was not eligible to work. Nothing in the collective agreement between the Force and the Fort Frances Police Association regarding leaves of absence prohibits affording such work opportunities. Indeed, the reality of a leave of absence, as was noted before, is that the officer on leave must ask permission to take any other employment during the pendency of such leave. Ms. Pattison did ask for such permission, and it was refused.

109The facts relating to Ms. Pattison's leave of absence were unique. As I earlier stated, the leave was a way for both parties to avoid further confrontation on the issues of uniform, gunbelt, and regular patrol duties. In no way, however, can it be said that Ms. Pattison yielded her relationship with the Force. At the very time that she asked for a leave of absence she also asked for alternative work assignment. The granting of the leave of absence did not vitiate the request for alternative work. Both the Chief and the Deputy Chief knew that Ms. Pattison wanted to continue with the Force — if she could do so in the pursuit of alternative work. Finally, it should be noted that Ms. Pattison had filed a detailed complaint with the Ontario Human Rights Commission in February 1985. Paragraph 31 of that complaint sets forth why Ms. Pattison asked for unpaid leave of absence, and paragraph 32 of the complaint sets forth her desire for alternative work which she believed the Force could have accommodated.

110In the result, therefore, I find that there was alternative work available from time to time as a Clerk Typist when the assigned Clerk Typist was absent. Such alternative work was offered on a regular basis to other members of the Force, all of whom are male. Though she specifically requested alternative work which included substituting in civilian dress at the police office for absent Clerk Typists, Ms. Pattison never was afforded the same opportunity as her male counterparts. No reason was offered to justify the distinction made as to substituting for absent Clerk Typists between male and female Constables.

111The opportunity for substituting for absent Clerk Typists existed from the time of Ms. Pattison's leave of absence, January 24th, until April 17th when a part-time Clerk Typist was hired for the sole purpose of filling in for absent Clerk Typists.

112I make the finding relating to the Part-Time Clerk Typist subject to this condition which will be reflected in the award. The evidence was not clear whether the employment of the Part-Time Clerk Typist ended all assignments of Constables to that job. If the facts are that Constables continued to substitute for Clerk Typists even after the employment of the Part-Time Clerk Typist, then Ms. Pattison should have been offered that opportunity until May 1985 at which time she became ill and remained in that condition until the birth of her first child in July 1985.

C. MS. PATTISON AND THE EVENTS RELATING TO HER SECOND PREGNANCY

113I indicated before that the Commission moved to amend the complaint at the time of the hearing to include charges that seemed substantially similar to those in the initial complaint. I had some reservations concerning the amended complaint in terms of why it could not have been filed well in advance of the hearing on this matter. After all, the facts to be proved were not new to the Commision. Nonetheless, I permitted the amended complaint to go forward so long as the respondents were not taken by surprise, and were afforded adequate opportunity to reply. I believe that in the result there was no surprise and the respondents were fully ready to meet the charges set out in the amended complaint.

114Ms. Pattison's leave of absence continued until July 1, 1985 at which time her maternity leave came into effect under The Employment Standards Act. That leave continued unitl October 27, 1985, when Ms. Pattison requested an extension of her unpaid leave of absence until January 22, 1986. Her letter to Chief Solomon, copied to the Ontario Human Rights Commission, was terse and conclusionary: "Dear Sir, I request to extend my leave of absence from October 27/85 to January 23/86. I also wish to carry my 1985 holidays over to 1986. Please reply by October 1st/85 so as to enable me to make further arrangements."

115Chief Solomon, in my view acting within the meaning of Article 3.01 of the collective agreement, by letter dated September 30, 1985 asked Ms. Pattison her reason for extended unpaid leave, and in addition raised certain other concerns. Ms. Pattison replied by letter dated October 2, 1985:

In response to your letter dated September 30th, 1985, I will attempt to answer your questions to the best of my ability.

I don't recall having to provide a reason when I requested a leave of absence in January of this year. However, as you have asked that I do so, I shall comply. I request the additional leave of absence as my baby will not drink any prepared infant formula. I am aware that the Department has no policy on allowing time off for breast feeding. I have been nursing her since birth, and she requires feeding every three to four hours. The additional leave would enable me to nurse her until she is old enough to drink regular milk. This should occur by six months of age.

I do not intend to seek compensation for the additional leave. I am simply keeping [the] Human Rights [Commission] advised of my situation and any changes in it.

As for holidays, I am unaware of what shift I am supposed to be on as I do not appear on the deployment schedule and have not so appeared for a long time. Therefore I feel that it is impossible for me to book any holidays. I wish to forward my holidays to 1986 should the additional leave be granted. If this is not possible, I assume that I will be paid for them.

Also, your last paragraph indicated that I am aware of a manpower deployment problem. I am not aware of any problem. It is my understanding that three officers and a part-time clerk-typist were hired in 1985. If this is not so, please correct me.

As for my long term intentions, I intend to return to work.

I would appreciate your reply by Oct. 9th/85.

cc. Irene Mitchell [Ontario Human Rights Commission]

116The additional leave time was granted by Chief Solomon. However, on October 29, 1985, the Chief notified Ms. Pattison that she was to be sent to an Advanced Training Course at the Ontario Police College in Aylmer, Ontario from February 3–21, 1986.

117The Chief's reason for sending Ms. Pattison to the Police College was to acclimate her again to police work. She had been away from regular police work for a considerable period of time. The assumption on the part of the Chief was that Ms. Pattison would resume regular police duties on her return to work, and after she had completed the course at the Police College. This was an assumption that was based on the clear meaning of Ms. Pattison's request for extended leave.

118Sometime in October 1985, Ms. Pattison again became became pregnant. She did not notify the Chief of this until sometime in the early part of January, 1986. At the time no letter was provided by her attending physician. Nevertheless, the Chief notified the Police College of her pregnancy and requested special accommodations for her and her baby, as well as limited physical activity. By letter dated January 9, 1986, the Director of the Police College responded to the Chief, and a copy of that letter was made available to Ms. Pattison. The letter stated:

Dear Chief Solomon:

Subject: Provision for Pregnant, Nursing Constable Advanced Training Course

This will confirm our telephone conversations of January 9th and 10th. The bottom line is that your constable's situation ought to pose no problem; we can accommodate her in the following manner.

With respect to her pregnancy, I would like to point out that the physical training portion of the Advanced Training Course is a fitness program and this is not nearly as strenuous as the physical training is in the recruit program. In addition to that successful completion of the physical program is not mandatory for successful completion of the course. Accordingly, we could modify that program to suit her needs.

With the respect to the nursing infant I am willing to give her permission to live off base. This is something which is rarely done but is done when a family situation puts a police officer under some particular stress. I would like to advise that there is a day care centre in Aylmer (telephone 765-2083) which is willing to accept the child during the day time for the duration of the course. Their charge is $68 per week; the centre opens at 6:15 a.m. and closes at 6 p.m. Government regulation requires that the child be at least three months of age. In addition, I am advised that there is a reasonable supply of babysitters in the town of Aylmer.

If your student were to elect to live at the College we would have no objection to her keeping the child in her room, but I anticipate that the child might disturb the sleep of other students in which case we would have to evict the constable and her child.

The final option is for your student to enrol in July. In July of 1986 we will have a surplus of beds and for that reason could provide your constable with a room for herself, a room for the infant, and a private bathroom. This could be done in such a way as it would not disturb the rest of other students in the College.

If there is anything further I can do to assist please let me know.

Yours very truly,

[signed]

W. D. Drinkwalter,

Director

119In preparation for the course, Chief Solomon intended to have Ms. Pattison use her time primarily in reading the occurrences and orders of the Force over the past year so that she would have a better sense of what had transpired during her absence. Secondarily, she was to be measured for a uniform and she was to organize her equipment. Ms. Pattison was to report for duty on January 24th, and the Police College course was to begin on February 3rd, a period of somewhat more than a week.

120Apparently, this arrangement was not satisfactory to Ms. Pattison. On January 22nd, she met with Chief Solomon, who had on that same day received a letter from Dr. Johnstone, Ms. Pattison's physician. the letter from Dr. Johnstone, dated January 21st, stated:

This young lady is pregnant again and is at this time about 12 weeks pregnant. She had a toxemia during her last pregnancy and her blood pressure is already beyond normal limits for pregnancy at this stage. Therefore, she is unfit for any work involving much in the way of physical exertion and if sedentary work cannot be found for her, she will have to spend her pregnancy on sick leave.

121Ms. Pattison referred to an earlier meeting on January 9th with Chief Solomon where, according to her, she requested restricted duties. She said the Chief refused that request despite her physician's recommendation that she not be exposed to "excessively physical or potentially dangerous or violent situations." Therefore, Ms. Pattison felt she had no recourse but to "book off duty ill because of the blood pressure problem." She intended to continue on sick leave until her "blood pressure returns to normal."

122On the same date of the meeting, Ms. Pattison sent Chief Solomon a memorandum reflecting her view of the meeting, and she copied it to Mayor Dick Lyons. The memorandum, titled "sick leave", stated:

I am writing this memo as a result of our conversation today. Because of my present pregnancy, I requested to be assigned to restricted duties on Jan. 9/86. My doctor did not want me exposed to excessively physical or potentially dangerous or violent situations. You refused this request. I have since contracted the disease of high blood pressure. Today I once again asked to be assigned to office duties or court. Your response was negative. I am unable to resume full duties as you want me to because of my illness. Dr. Johnstone's letter corroborates this. Therefore, beginning Jan 24/86, I intend to book off duty ill because of the blood pressure problem. I will continue to book off until my blood pressure returns to normal.

123The next day, January 23rd, Chief Solomon sent a memorandum of reply to Ms. Pattison. It reflected a position far different from that projected by Ms. Pattison. Chief Solomon stated:

This replies to your Memorandum dated January 22, 1986 regarding your request for Sick Leave.

At the meeting in my office January 22, 1986 I specifically told you what duties I proposed to assign to you beginning January 24, 1986 upon your return to work. They were:

A period of reading up on Occurrences and Orders to familiarize yourself with what has gone on in the Force during your absence of approximately one year.

Getting measured for uniform and organizing your equipment.

These are essentially office duties and shouldn't be a threat to you. These duties would occupy the shifts up until your travel time allotment before your Course in Aylmer on February 3rd. A very reasonable assignment under the circumstances.

I told you that [you] wouldn't be required to work those shifts in uniform.

I totally reject the suggestion in your Memo that my refusal to let you have the duties you want had anything to do with causing your high blood pressure.

Since you plan to refuse your assignment, I take it that you are withdrawing your services as a Police Constable.

124In the result, Ms. Pattison adhered to her position. She refused the assignment of essentially office duties for her first week at work, and she refused to attend the Police College course that started on February 3rd. She took sick leave from January 24 to May 7, 1986, and two statutory holidays on May 8 and 9, 1986. After this, she requested and obtained maternity leave until September 7, 1986, at which point she resigned from the Force.

125I am hard pressed to understand on what objective basis Ms. Pattison felt that she was to be handed other than alternative work that involved neither risk of violence nor any physical stress on her return to duty. Whatever was her understanding from the meeting with Chief Solomon on January 22nd, he certainly clarified his position formally and by letter the next day. In that letter:

1. He made it clear that she would be assigned essentially office duties during the period of somewhat more than a week before she was to report for her course at the Police College.

2. He affirmed, and supported that affirmation with a letter from the Director of the Police College, that she not only would be given accommodation off base for herself and her child, but that she would not be required to participate in any stressful physical activity. This was not necessary for the successful completion of the course.

126There was nothing in the Chief's memorandum that failed to recognize the medical condition communicated only that day from Ms. Pattison's physician. And, in any event, the only specific assignment she had been given was for the first month of her return to duty, and, as I said, that assignment fully recognized her medical condition.

127Ms. Pattison tried to explain her reason for refusing that first month's assignment. In effect, she seemed to be saying that she didn't trust what the Chief had written. In cross-examination, Ms. Pattison said of the letter she received from the Chief outlining her assignment before she was to report to the Police College:

Yes, but he also said, "essentially office duties," and I was skeptical at the time that at any time he could go and tell me to go and do other duties and if I refused to do them, I again would be charged.

I regarded that as a threatening situation could arise out of that, that he at any time could tell me to do any duty he wanted and if I refused to do it I would be charged.

128Ms. Pattison in her testimony clearly suggested that a reason for not attending the Police College course was that she did not trust the representations of the Chief. This varies considerably from the submission made by counsel for the Commission in her Submission on Facts at Paragraph 72:

The Chief wanted to send the Complainant to Police College and suggested that she spend time prior to that reading up on routine orders, etc. Appropriate arrangements were made for her and her baby to attend Police College, but the Complainant decided not to go and was granted Sick Leave. Had she gone, she would nave been occupied with reading, travel and the course from January 24 to February 24, 1986. The Complainant and the Commission acknowledge that reasonable accommodation was offered to the Complainant by the Respondents for that period of time. [Emphasis added].

129Referring again to the meeting of January 22nd, Ms. Pattison offered a second reason for refusing the assignment: Even if there were adequate accommodation, the fact is, according to Ms. Pattison, that the Chief intended to impose upon her regular patrol duties in uniform on her return from the Police College. So, Ms. Pattison seemed to reason, what was the sense in going to the Police College? She wouldn't be able to do regular patrol work on her return.

130I refer again to Chief Solomon's letter of January 23rd. Whatever might have been Ms. Pattison's impressions, there simply is nothing in that letter to indicate that the Chief had done anything other than to be sensitive to Ms. Pattison's medical condition.

131I am compelled to the conclusion that the facts clearly demonstrate the availability of alternative and acceptable employment for the first month of Ms. Pattison's scheduled return to duty. Further, I find nothing in the facts that demonstrates an intent upon the respondents to assign Ms. Pattison regular duties on her return from Police College. What I do find is sensitivity to her medical condition which was communicated by Dr. Johnstone on January 22, 1986.

IV Conclusions of Law

A. PREGNANCY AND SEX DISCRIMINATION

132Much of the Commission's case is posited on the propositions that Ms. Pattison because of her pregnancy — and, in this regard I refer to the first pregnancy — was not able to wear the standard police uniform, carry the regulation gunbelt, and perform those duties incident to constables assigned patrol duties. If the stated propositions were true, the Commission argued that in law discrimination because of pregnancy constitutes discrimination because of sex. The kinds of discrimination, according to the Commission, were both direct and indirect. That is, they fell within sections 4(1), 8, and 10.

133Respondents' counsel argued that requirements relating to pregnancy do not constitute discrimination on the basis of sex. In support of this, counsel cited Bliss v. Attorney-General of Canada [1979] S.C.R. 190 where it was stated:

Assuming the Respondent to have been "discriminated against", it would not have been by reason of her sex. Section 45 applies to women. It has no application to women who are not pregnant, and it has no application, of course, to men. If section 46 treats unemployed pregnant women differently from other unemployed persons, be they male or female, it is, it seems to me, because they are pregnant and not because they are women.

134Though counsel for respondents argued otherwise, I believe that the statement quoted was obiter dictum. I accept what a Federal Board of Inquiry had to say in a case where accumulated sick leave and annual leave were denied for the purpose of childbirth, Tellier-Cohen v. Treasury Board (1982), 1982 CanLII 4909 (CHRT), 3 C.H.R.R. D/792, at D/794:

I cannot subscribe to this obiter dictum, for it creates a separate sexual category for pregnant women and avoids dealing with the real problem of sexual discrimination. Only women can become pregnant and this is the major difference between men and women.

Judging the equality of the sexes on the basis of strict equality (which the Americans call "gender-based discrimination") constitutes a substantive defect for there are no decisions except in situations where men and women are in exactly identical positions. Pregnant women provide a good illustration of the illogical nature of that criteria. Only women can become pregnant; must we accept for that reason that they must be deprived of the benefits which would otherwise be granted?

135Counsel for the Commission cited, inter alia, Holloway v. Clair MacDonald and Clairco Foods, Ltd. (1983), 1983 CanLII 4679 (BC HRT), 4 C.H.R.R. D/1454. There, a British Columbia Board of Inquiry dealt with a charge of sex discrimination arising out of dismissal from employment because of pregnancy. The Board of Inquiry referred both to Tellier-Cohen and Bliss. Its reasoning is, in my view, helpful [at para. 12502]:

[Referring to Gibbs v. Surrey Teachers' Assn., an unreported B.C. Board of Inquiry decision of July 11, 1978] The Board held that pregnancy discrimination does not constitute sex discrimination though the Board held that there had been discrimination without reasonable cause. The Board reasoned that pregnancy affects different women in different ways, and that special rules may sometimes be warranted to protect pregnant women from certain hazards or to excuse them from certain duties during their pregnancy. The Board used the example that it would be wrong to discipline an eight-month pregnant firefighter for refusing to enter a burning building or an eight-month pregnant ski instructor for refusing to ski down a competitive downhill course. The Board also noted that employers and employees might negotiate for special pregnancy benefits and suggested that the Code should not put undue limitations on this process. In reaching its decision the Board relied in part on the decision of the Supreme Court of Canada that special unemployment insurance rules with regard to pregnant women do not violate the right to equality before the law provided by the Canadian Bill of Rights. (Bliss v. A.G. Canada (1978), 1978 CanLII 25 (SCC), 92 D.L.R. (3rd) 417 (S.C.C.)). I might also note that it has been held that a refusal to hire due to pregnancy does not constitute sex discrimination for purposes of the Charte des Droits et Libertes de la Personne du Quebec. (Breton v. La Society Canadienne des Metaux Reynolds (1981), 1981 CanLII 4369 (QC PROVCT), 2 C.H.R.R. D/532 (Prov. Ct.))

I agree with the conclusion of both tribunals in the Tellier-Cohen case, supra, that the Bliss case is not determinative in interpreting human rights legislation. The issue in that case was whether there had been a violation of the right to equality before the law contained in section 1(b) of the Canadian Bill of Rights. The statements concerning the relationship between pregnancy and sex discrimination appear to be obiter dicta. Moreover, the issue in the case was whether an Act of Parliament should be declared inoperative, and it appears that the Court was influenced by that factor in interpreting section 1(b) as it did. The reasoning adopted in the Bliss case has proved controversial even in the context of interpreting the Canadian Bill of Rights, and in any event, the case is little assistance in determining the meaning of Section 8 of the Human Rights Code.

Also, I am not convinced by the examples given in the Gibbs case. Assuming that distinctions based on pregnancy constitute sex discrimination, it does not follow that employers would be prohibited from exempting women who were pregnant from certain duties as long as the decision was based on the physical condition of that particular woman and was not based on generalizations about all pregnant women. Also, the Code would permit an employer to refuse to employ a woman who could not perform the work, whether or not the cause was related to pregnancy, as long as the decision was based on the capacity of the individual applicant and did not reflect a generalization about pregnant women.

B. APPLICATION OF THE LAW TO THE FACTS

1. The First Pregnancy and the Orders Relating to Uniform, Gunbelt, and Patrol Duty

136Pregnancy is a factor to consider in determining whether there has been discrimination on the basis of sex. In all instances, however, the facts relating to the individual are determinative. In this regard, for the purpose of finding constructive discrimination within the meaning of section 10 of the Code, I am to view work requirements that might otherwise be neutral in terms of whether they have the effect of excluding a group of persons designated by the Code (e.g. sex discrimination). Further, I am to consider whether the questioned requirements are reasonable and bona fide under the circumstances.

137The Commission argued, in relation to the first pregnancy, that the uniform, gunbelt, and patrol assignment were neutral work requirements that nonetheless constructively discriminated against Ms. Pattison within the meaning of section 10 of the Code. I disagree.

138As I stated in my Findings of Fact, the alleged act of discrimination is to be measured at the time and in the place that it occurs. Pregnancy is not, as such, an illness. Both the Commission and Ms. Pattison seem to accept this proposition. The issue is whether Ms. Pattison was physically unable to carry out the orders she was given during her first pregnancy. It was the first order that she was given which she refused to carry out. She was told to alter her uniform. All that was required, at the time, was the movement of a few buttons. Ms. Pattison, in the result, refused to do this. At the time the order was given, she was about twelve weeks pregnant, and she had gained only eight pounds. Her physical shape in all other respects appeared to be normal.

139There could not have been any real doubt about the kind of uniform the Force demanded and, in the context of its own internal policy, it had a right to expect compliance on the part of its uniformed members. Ms. Pattison could have complied with the request. There were no reasons why, at the time the orders were given, she had to insist on a maternity uniform. What might have been the case three months later was not at issue. That which was at issue was the order given at a specific point in time and place.

140Again, in terms of the first pregnancy, the central question went to whether Ms. Pattison was physically able to carry out the orders she had been given. The position of the Commission was that she was not able to wear a gunbelt, and she was not able to perform regular patrol duties as a Constable because of the nature of her pregnancy as determined by her doctor. The position of the Commission was not that the individual, herself, based on subjective feelings, was able to claim inability to work. There needed to be some objective determination.

141The facts, however, resulted in findings that Ms. Pattison was able to wear a gunbelt at the time the order was given. Her doctor did not order her for reasons reflecting on her health or the health of the baby she was carrying not to wear a gunbelt. The doctor only passed on what Ms. Pattison had told him. The gunbelt was uncomfortable.

142Ms. Pattison, herself, in fact answered the question as to whether the assumption of regular patrol duties would constitute an unreasonable risk or result in the potential for excessive physical stress. The primary job that Ms. Pattison sought by way of alternative employment was that of Duty Officer for the Criminal Court. The facts resulted in the conclusion that this job surely had its risks of danger and physical stress. It was the Duty Officer who was to be the practical source of keeping order in the Court, and of escorting, securing and controlling prisoners enroute from the lockup to the Court and on their return to the lockup. The only difference between the job of Constable on patrol and Duty Officer, aside from relatively comfortable day hours, was perhaps in the degree of risk and physical danger.

143In the result, I did not reach the preliminary point for the determination of possible violation of section 10: The pregnancy of Ms. Pattison in December, 1984 and January 1985 in no way prohibited her from carrying out those orders relating to uniform, gunbelt, and patrol duty.

144There was no violation of section 10, and, there was no violation either section 4(1) or section 8 of the Code insofar as the orders are concerned relating to the uniform, gunbelt, or patrol duty at the time they were given.

2. The First Pregnancy: The Leave of Absence

145It is fair to say that there was confrontation between Ms. Pattison and the Force. I believe that she thought those rights relating to no discrimination on the basis of sex in employment afforded by the Code had been violated by the orders concerning uniform, gunbelt, and patrol duty. The position of the Force was abundantly clear, however: At the time the orders were given it was expected that Ms. Pattison would comply. There was not reason in fact for any other view.

146The question was not one of sickness or incapacity on the basis of handicap. Ms. Pattison was pregnant, but she was not sick. When she had been sick, from time to time, as a result of the pregnancy, sick leave had been granted. It is true that on these occasions, notes from her doctor had been requested. But, surely there was reason for this: The Force was not clear as to whether Ms. Pattison was claiming sick leave on the basis of her pregnancy generally, or because she suffered some specific ailment resulting from the pregnancy. If it were the latter, then sick leave properly was to be granted. If it were the former, then sick leave was to be denied. The situation, in this regard, simply could not have been equated with that of male officers claiming sick leave who might not have been asked for a medical certificate.

147At the point of confrontation, both the Force and Ms. Pattison made a choice: She asked for a leave of absence until such time as she determined to exercise her right to maternity leave. The leave was granted. The collective agreement between the Force and the Fort Frances Police Association only makes general provision for the granting of a leave of absence by the Chief with the right of appeal if it is not granted.

148Ms. Pattison was not given sick leave because she was not sick; she was pregnant. She was given a leave of absence by the Chief as a way of resolving the conflict at the time relating to uniform, gunbelt, and patrol duties. The Chief and the Deputy Chief knew that Ms. Pattison wanted alternative work. In the context of the position of a full-time Constable during the period of December and January, the only full-time work available was that of Constable on patrol. However, not long after the leave was granted, other full-time Constables were employed.

149The Chief and the Deputy Chief knew, too, that Ms. Pattison was not sick. She was pregnant. She was able to work. A way had been found to avoid the requirements of uniform, gunbelt, and patrol duty. More to the point, after the leave of absence had been granted, Ms. Pattison effectively was denied an opportunity to earn an income. She could not seek outside employment without permission of the Chief. She asked for such permission and it was denied.

150What then was Ms. Pattison's status while on leave? It was a status not specifically defined, as I stated, by the collective agreement. Rather, in my view, it was a status dictated by the facts:

Ӣ She was available to work for the Force so long as such work did not involve duty patrol in uniform. The Chief and the Deputy Chief must be seen as knowing this.

Ӣ She could not work elsewhere; such permission had been denied by the Chief.

151Between the time of her leave and April 17, 1985 when a part-time Clerk Typist was employed — but in any event not later than May 1985 when Ms. Pattison did become ill — she was available to substitute for absent Clerk Typists who functioned, inter alia, as radio dispatchers. Though such Clerk Typists received far less by way of salaries than Constables, the facts are that the Force used Constables to substitute for absent Clerk Typists at least until the Part-Time Clerk Typist was employed whose function it was to fill-in on a needs basis. [The evidence, as I indicated previously, is not clear as to whether Constables continued to work as substitutes following the employment of the Part-Time Clerk Typist. If Constables continued to substitute for absent Clerk Typists after April 17, 1985, then such work should have gone to Ms. Pattison.]

152This substitute work was the kind which Ms. Pattison surely was as equipped to handle as any male Constable. Such was the testimony of Constable Richardson. It was not even offered to Ms. Pattison. No reason was given. The issue of duty patrol had been resolved. The issue concerning other work that might become available, from time to time, had not been resolved.

153There was a suggestion that making available Clerk Typist work was something in the nature of an accommodation. Detailed argument was presented as to whether there is a statutory duty under section 10 to provide for accommodation.

154With respect, I think the argument misplaced. The question here is not accommodation, but providing equal treatment with respect to employment without discrimination on the basis of sex within the meaning of sections 4(1) and 8.

155Other Constables who are male were allowed to substitute for absent Clerk Typists. Ms. Pattison, the only female on the Force, though willing and able to perform the same job, and not prohibited from doing so because of her leave status, was denied that opportunity. Moreover, the facts indicate that the male Constables filled the Clerk Typist function in an overtime situation; it was done outside their regular duty time. Ms. Pattison wanted regular alternative work with the Force.

156As I stated before, and emphasize here, the Chief resolved the duty patrol problem by granting the leave. The Chief might not have had to grant the leave. He might have joined the issue, and compelled discipline. He chose not to do so. Such was his choice. It is not for me to question. But, once he made that choice in terms of non-discipline and the granting of a leave, another matter opened. Ms. Pattison, freed of duty patrol, was open to alternative work. The Chief had not resolved the question relating to alternative employment where such opportunity existed in the context of existing practice.

157In the context of these findings, discussion of sick leave or the possible application of sections 35 and 36 of The Employment Standards Act, as urged both by Commission and respondents' counsel, have little relevance. Similarly, I have considered the submissions of respondents' counsel concerning the possible use of the grievance procedure by Ms. Pattison as a preferred means for resolving her dispute with the Force. In the result, it is my view that the grievance procedure afforded too narrow a perspective for consideration of the issues. The focus of the grievance procedure is one of interpreting the collective agreement, albeit within the mandate of public policy. The focus of this Board of Inquiry is much broader; it goes to the Human Rights Code, itself, and, in that regard, an analysis of the facts.

158In the first instance, Ms. Pattison should have been offered such substitute work as was available for absent Clerk Typists to the extent that it [was] covered by Constables on an overtime basis. This work should have been made available from the time of leave until May 1985, when Ms. Pattison became ill and could no longer carry out such duties.

3. The Second Pregnancy

159In my view, the facts are beyond question. Let us assume the Commission's position relating to the need to accommodate. Can there be any question that [the] Chief acted reasonably?

Ӣ A terse note requesting extension of her present leave of absence was sent to the Chief. He asked for the reason. He was given a reply relating to difficulties feeding her baby. The leave was extended.

Ӣ During the course of the leave, the Chief informed Ms. Pattison that she would attend an Advanced Training Course at the Police College in Aylmer, Ontario on February 3, 1986. The assignment was entirely appropriate. It was given before the Chief was informed of Ms. Pattison's second pregnancy.

Ӣ Not until shortly before she was to return to duty did Ms. Pattison indicate to the Chief that she would have a problem attending Police College: Her baby was having difficulty being weaned. The Chief responded immediately. Special arrangements were made with the Police College for Ms. Pattison and her baby.

Ӣ Next, Ms. Pattison informed the Chief that she was pregnant, and, in regard to that pregnancy, she suffered certain ailments which would not allow her to perform normal duties of a constable on patrol. It was not until January 21, 1986 that her doctor wrote to validate the claims made.

Ӣ Again, the Chief responded immediately: When Ms. Pattison was to report for duty about a week before her assignment to the Police College, she need only have worn civilian clothes, and she was to have been assigned "essentially office duties." Further, at the Police College, she was to have been given the option concerning participation in physical activity. The Chief made these points in writing. There was nothing in his letter to indicate that following her return from the Police College, he would do anything other than be responsive to Ms. Pattison's demonstrated physical condition.

160The fact is that Ms. Pattison simply did not "trust" the promises made by the Chief. She thought that "essentially office duties" during her first week of duty could have encompassed work outside the office which might have been dangerous or physically demanding. In the result, she simply had no demonstrated objective basis for such a claim. And, Commission counsel implied as much when she stated that the arrangements made concerning the preparation for Police College and Ms. Pattison's proposed stay were indeed adequate as an accommodation.

161It was Ms. Pattison who chose to anticipate the Chief and assume a conclusion that alternative work would not be provided. It was she who insisted on leave. The Chief did as much, if not more, than could reasonably be expected in terms of accommodation.

162I find absolutely no merit to the amended complaint, and I therefore dismiss it.

C. COSTS

163Respondents' counsel asked that I make an award as to costs within the jurisdiction afforded by section 40(6) of the Code. It was argued that the claims in terms of both the first and the second pregnancies were, in effect, vexatious or made in bad faith.

164In an award already very lengthy, I will not comment in any detail on many of the allegations made in support of an order for costs. The facts compelled findings resulting in the dismissal of a portion of those charges relating to the first pregnancy, and all of the charges relating to the second pregnancy.

165I believe that Ms. Pattison acted in good faith as to those matters claimed in the first complaint. This was her first pregnancy. She suffered certain ailments incident to that pregnancy which were normal. The advice given by her doctor, at least insofar as it was presented to this Board of Inquiry, seemed to be couched in unclear terms. Some of what the doctor said merely reflected what Ms. Pattison told him and nothing more. Yet, it was possible that Ms. Pattison, having her words repeated by the doctor, heard what she wanted to hear.

166I cannot say that either she or the Commission acted in vexatious manner or in bad faith in the bringing of the first complaint.

167Yet, can the same be said of the second, or amended complaint? This was a matter raised for the first time at the hearing itself. It was a matter about which the Commission was aware long before the hearing. Why should the respondents have been put to the stress of responding to new charges in a situation where extremely limited time had been allocated for hearing all the issues?

168It might have been that Ms. Pattison believed herself discriminated in violation of the Code as to those matters incident to the second pregnancy. In this regard, I refer specifically to the facts surrounding preparation for and attendance of the Advanced Training Course at the Police College. She said as much in her testimony.

169However, the Commission certainly did not think Ms. Pattison was treated in an improper way as to the requirements relating to preparation for an attendance at the Police College. And, it said as much in its Submissions on Fact.

170In the result, there was scant direct evidence to support the amended complaint. It related to the testimony of Ms. Pattison concerning a meeting she had with the Chief. Yet, this was certainly was overcome by the written statement of the Chief following the meeting.

171Section 40(6), in my view, affords discretion in the Board of Inquiry in ordering costs once it finds, for example, that the complaint brought was vexatious or made in bad faith; or that it in the particular circumstances caused undue hardship to the person complained against.

172To say that a complaint is without foundation is not to compel a finding that it was made in a vexatious manner or that it was done in bad faith. The amended complaint was one without foundation. But, I will make no finding that it was made in a vexatious manner or in bad faith.

173Respondents, in the result, were well prepared to meet the charges levelled in the amended complaint. Though hearings were extended into the evening hours to insure completion of the evidence, I cannot say that undue hardship was imposed on the respondents.

174For the reasons stated, I deny respondents request for costs.

D. DAMAGES

175Special damages in the amount of $22,227.26, and damages for mental anguish in the amount of $4,000.00 have been requested by the Commission. Included within the elements of special damage for 1985 were items relating to salary, lost overtime, and statutory holidays. The items included for 1986 were sick leave credits, lost overtime, and statutory holidays.

176I have dismissed the amended complaint relating to 1986. As to 1985, however, the three listed items are appropriate. The amounts to be attributed to those items probably will be significantly different.

177In view of the award that will follow, the following criteria should go into the determination of the amounts owing Ms. Pattison:

1. From the time of January 1985 leave of absence, she was entitled to substitute for absent Clerk Typists in lieu of those Constables who performed such work on an overtime basis. In this regard, she is to be paid at her then prevailing rate as a Constable.

2. Where one absent Clerk Typist shift followed another and overtime would have been required, Ms. Pattison was entitled to share in that overtime on the basis as other Constables.

3. The computation of damages for Ms. Pattison is to end as of May 1985 when she became ill.

178A submission for damages relating to mental anguish was made. In support of that submission, the Commission properly noted that such damages are not intended to be punitive. Rather, they are intended to compensate the complainant for real emotional harm done. The significant points of that harm, according to the Commission, were the events of December 1984 and January 1985 relating to the uniform, gunbelt, and patrol duty assignment and the events of January 1986 relating to preparation for the Police College assignment.

179The facts do not sustain the complaints made in relation to the points of emotional upset. Bearing in mind the record as a whole, there does not exist a sound basis for the award of damages for mental anguish.

Award

180For the reasons above, the first complaint has been sustained in part and the second, or amended complaint, has been dismissed.

181In accordance with guideline criteria set out in part IV(D) of this award the parties are instructed to meet within forty-five days of the date of this award with a view toward quantifying the damages, and making payment thereon.

182I will remain seized of jurisdiction should an issue arise concerning the implementation of this award.