Riemer v. York Regional Police (No. 2), 1998 CanLII 29795

Riemer v. York Regional Police (No. 2)

1998-10-06

Ontario Board of Inquiry

BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;

AND IN THE MATTER OF the complaints by April 14, 1994, alleging discrimination and harassment with respect to employment on the basis of sex by York Regional Police, Chief Bryan Cousineau and Inspector Donald Kirk and reprisal.

B E T W E E N :

Ontario Human Rights Commission

• and -

Susan Riemer

Complainant

• and -

York Regional Police

Chief of Police Bryan Cousineau

and Inspector Donald Kirk

Respondents

DECISION

Adjudicator: Heather MacNaughton

Date: October 6, 1998

Board File No.: BI-0120-97

Decision No.: 98-017

A P P E A R A N C E S

Ontario Human Rights Commission, Susan Riemer: Kikee Malik and Brian Eyolfson, Counsel

Bryan Cousineau and Donald Kirk: Joy Hulton, Counsel

THE COMPLAINT

Susan Riemer ("Riemer") filed a complaint with the Ontario Human Rights Commission (the "Commission") alleging that the Respondents, the York Regional Police, the then Chief of Police Bryan Cousineau, and Inspector Donald Kirk ("Kirk"), discriminated against, and harassed, her in her employment on the basis of sex. In particular she alleged that the Respondents failed to accommodate her specific health needs as a pregnant police officer in contravention of sections 5 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Commission and Riemer did not proceed with the complaint against Chief Cousineau.

By an Interim Decision dated July 30, 1997, I granted the motion made by the Commission to amend the complaint to add the ground of reprisal pursuant to section 8 of the Code.

The Code protects the right to equal treatment in employment without discrimination because of sex in section 5(1). Section 10(2) extends that protection to women who are, or may become, pregnant. The interpretation of those sections is not in dispute in this case. Further, the Respondents do not dispute that they have an obligation to accommodate pregnant officers employed by them, as was decided in Lord v. Haldimand-Norfolk Police Services Board (1995), 1995 CanLII 18169 (ON HRT), 23 C.H.R.R. D/500 (Ont. Bd. Inq.)

What is in dispute in this case is whether Kirk, and the York Regional Police, provided sufficient accommodation to Riemer during her 1992 pregnancy. I must decide which of two very different accounts (Riemer's and Kirk's) of what was said, known, and done about the health difficulties experienced by Riemer during her pregnancy is to be believed.

It was not disputed by the Respondents that Riemer's health difficulties were legitimate, serious, and required accommodation. Further, York Regional Police did not argue that they were unable to accommodate Riemer. What was disputed was when Kirk, and the York Regional Police, became aware of her need for accommodation. Riemer's position is that she advised the Respondents of her need on May 19, 1992 in a conversation with Kirk. The Respondents' position is that they did not become aware of Riemer's condition until mid-June 1992 and, upon becoming aware, immediately accommodated her.

The outcome of this case turns primarily on an assessment of the credibility of Riemer and Kirk. In assessing their credibility I have taken into account the test set out in Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354(B.C.C.A.), and often cited in human rights cases. That test is as follows:

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he [or she] has seen and heard, as well as other factors, combine to produce what is credibility....In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

I have further compared their evidence, and the consistency of their actions, with their prior conduct.

I found the job of assessing credibility in this case one of the most difficult tasks I have undertaken as an adjudicator, in part because all of the officers who appeared as witnesses gave their evidence in an apparently sincere, persuasive and forthright manner. Further, the length of time that passed between the events about which evidence was given, and the testimony, has meant that perceptions have hardened into certainties. For the reasons I set out in detail below, I preferred the evidence of Kirk over that of Riemer in each instance where their evidence differed.

THE FACTS NOT IN DISPUTE

The York Regional Police Force

The headquarters for the York Regional Police are located in Newmarket. The force employs approximately 700 uniformed officers and 135 civilians, all of whom are represented by their union, the York Regional Police Association (the "Association").

York Regional Police serves its community through five District offices or stations. Each District is commanded by an Inspector, has its own Criminal Investigation and Youth Investigation Branch ("C.I.B."), and a complement of uniformed police constables. The uniformed constables in each District are divided into four platoons, A through D, each of which (with the exception of No. 3 District) is supervised by a Staff Sergeant and two Sergeants. Uniformed officers in the platoon report to the Staff Sergeants and their Sergeant.

The uniformed platoons and the Sergeants are scheduled to work in blocks consisting of four twelve-hour shifts, two days and two nights, followed by four days off. The platoon system, when combined with block scheduling, ensures round the clock uniformed policing. The officers and Sergeants working the twelve-hour shifts accrue, and bank for personal time off, eight hours of time for each block worked. Detectives and constables in C.I.B. work ten-hour shifts and do not accrue time. The Inspector in each District works days only, from 8:00 a.m. to 4:00 p.m. Thus, as a result of these different schedules, for periods of time in a block, platoon officers do not see the Inspector.

The front desk at each District is normally staffed by a Staff Sergeant, or Sergeant, and by uniformed officers who rotate through the position. On occasion, a Sergeant on the front desk is assisted by a police cadet, freeing up a uniformed constable for road duties. Front desk duties are considered light duties and made available to officers requiring accommodation.

Officers reporting ill for a shift call the Sergeant in charge of the front desk, who may, or may not be, the Sergeant for their platoon. The Sergeant completes a duty exception sheet recording that the officer did not work their scheduled shift. The duty exception sheet is also used to record vacations, or that the officer was off on accrued or statutory time. The stenographer in the District inputs directly into the computer records for the officer information with respect to vacation, statutory and accrued time taken. Information with respect to sick time or overtime, is forwarded by the stenographer to centralized Staff Services where it is recorded.

Officers have both a personal bank of sick time and a central sick bank available to them for use during an illness. The central sick bank is contributed to by all officers. Once an officer's personal sick bank is exhausted, he or she can apply for sick time out of the central sick bank. The application must be approved by both the Police Services Board (the "Board") and the Association.

Personnel transfers between districts are common and are used for training purposes and to expose members of the force to all aspects of policing and the community. A District Commander can transfer an officer under his or her command between platoons, or assignments, in the District and can recommend an intra-district transfer. A District Commander cannot, however, effect an intra-district transfer, without an order of the Chief or the Deputy, acting on the recommendation of Staff Services.

Riemer joined York Regional Police in September of 1986, as a result of a recruitment effort undertaken at that time. She attended the Ontario Police College in the fall of 1986 and again in the spring of 1987. She graduated in June, 1987 as a 4th Class Constable. She attained the rank of 1st Class Constable in 1989. She is currently on leave from York Regional Police for reasons unrelated to this complaint. Riemer's husband, Michael Riemer, is also a 1st Class Constable with the York Regional Police. During most of the time period covered by this complaint both Susan and Michael Riemer were assigned to No. 4 District under the command of Kirk. Riemer was a member of D Platoon and her direct supervisors were Staff Sergeant Cooper and Sergeant Ellis.

Kirk joined York Regional Police as a constable in 1975, after ten years as a constable in Metropolitan Toronto. At the time of the incidents which form the basis of this complaint he held the rank of Inspector. He became the officer in charge of No. 4 District in 1990. He served in the Association for eight years and, for a time, on the executive of that organization.

York Regional Police Policy With Respect to Accommodation of Pregnant Officers

I heard evidence from Riemer; Kirk; Paul Bailey, the President of the Association; and Inspector Gordon Smyth of Staff Services, about the repeated attempts that had been made to negotiate and implement a written policy with respect to the accommodation of pregnant officers. Despite these efforts, there continues to be no written policy at York Regional Police.

In the 1980's, pregnant officers were commonly assigned to light duties in the Communications Branch (radio room), an assignment that was not universally popular. In 1991, the Association conducted a survey of its female members as a part of an initiative to incorporate language into the collective agreement to deal with accommodation of pregnant officers. The responses varied, but the general consensus was that uniformed officers should be removed from road duties when pregnant. Most female officers wanted to stay with their platoons, or to do C.I.B. call backs. Most did not want to lose the opportunity to accrue time and therefore preferred to continue on 12-hour shifts.

Based on the results of the survey, it was decided that assignment to the front desk of the station, working the same shifts as their platoon, was preferable to an assignment to the radio room. Thereafter, front desk duties were adopted as the normal practice with respect to accommodation of pregnant police officers.

The unwritten policy was not, however, universally applied. I heard evidence from two other female police officers, Heather Bentham and Kim Killby, who, while pregnant, arranged for a shift change to enable them to work straight days on the front desk. These shift changes were achieved without the requirement for medical documentation to support the request. These ad hoc arrangements appear to have been negotiated directly with the responsible District Commander and without the involvement, and perhaps knowledge, of Staff Services. I heard further evidence from Constable Paula Crane about the steps she was required to take to obtain relief from night shifts when she developed pregnancy-related health difficulties while under the command of Kirk. While her circumstances were somewhat analogous to those of Riemer, I was not persuaded that there was a pattern of discrimination against pregnant officers who became ill, as was argued by the Commission.

Gordon Smyth testified that, in 1992, if an officer required accommodation in shift scheduling, a request would be sent to human resources requesting the shift change and it would be dealt with on medical grounds only. Shift changes could otherwise be instituted by the District Commander on a >need' basis. The District Commander had the ability to change a pregnant officer's assignment or to modify the position. If the District Commander was unable to accommodate a pregnant officer through front desk duties, they would notify headquarters and other accommodation arrangements would be made, including assignment to the radio room.

Riemer's 1992 Pregnancy

Riemer's complaint arises from the events surrounding her second pregnancy in 1992, during which she experienced health difficulties which affected her ability to perform her job. Riemer gave detailed evidence of the extent of her medical difficulties in the spring and summer of 1992, and her various visits to her family doctor, to her obstetrician/gynaecologist Dr. Jackson, and to her urologist Dr. Levers. Both Dr. Jackson and Dr. Levers testified at the hearing and confirmed that as a result of her pregnancy and the position of the baby in her womb, Riemer experienced an obstructed ureter which caused discomfort, pain, and difficulty urinating and sleeping. As set out above, the fact of this obstruction was not disputed by York Regional Police.

In February of 1992, in accordance with the force's Rules and Regulations, and in accordance with the terms of the working agreement between the Association and the Board, Riemer advised Kirk, Cooper and Ellis that she was pregnant and that her due date was August 23, 1992. She was the first officer to become pregnant while under the command of Kirk.

Upon being advised of her pregnancy, Kirk took Riemer off patrol duties (road duties) in accordance with the employer's unwritten policy that pregnant officers be assigned to desk duties. At the time No. 4 District had a police cadet working on the front desk so that her assistance was not required there. Riemer testified that she was given four choices of assignment. The four choices were:

1. working in the property room Monday to Friday for eight-hour shifts;
2. working in the C.I.B. with the detectives, Monday to Friday for eight-hour shifts;
3. working in the radio room for twelve-hour shifts, day shifts, days and nights following the schedule of D platoon; and
4. assisting in C.I.B. for twelve-hour shifts, days only, from 7:00 a.m. to 7:00 p.m. four days on and four days off.

Riemer gave evidence in chief, and while being cross-examined, that after considering a number of factors (including her existing child care arrangements; her on-going interest in working in C.I.B.; and her ability to continue to accrue time) she elected to work in C.I.B. on twelve-hour shifts, days only. She started the following day.

Riemer agreed that her health was not a consideration in her selection of assignment as she had no pregnancy-related health concerns at that time.

Kirk recalled that only the C.I.B. option was discussed and that Riemer's primary interest was the ability to continue to accrue time.

I find that the twelve-hour shift arrangement in C.I.B. was a special arrangement to allow Riemer to continue to accrue time. No other officer in C.I.B. worked that schedule and, while it was a position which was undoubtedly of value to C.I.B., and had been used previously to accommodate injured officers, it was not a normally staffed position. Smyth testified that, had he known of Riemer's assignment, he would have objected to it because it allowed her to continue to accrue time which might set a precedent, and could cause difficulty with the Association and other officers, with respect to the application of the collective agreement.

As a result of that assignment and her removal from road duties, Riemer's pregnancy, in the first instance, was accommodated. Had she remained in C.I.B. for the duration of her pregnancy, working straight days, this complaint would not have arisen.

THE DISPUTED FACTS

The discrepancies in the evidence of Riemer and Kirk start with what understanding they had regarding her original assignment to C.I.B. Riemer gave evidence that she believed it was for the duration of her pregnancy. Her belief, she said, was based on the fact that she was not told otherwise. Kirk testified that he advised her that her assignment to C.I.B. would continue for so long as her Sergeant did not need her on the front desk.

Kirk's version of their discussion, and understanding, was consistent with the evidence of Sergeant Cooper, Riemer's sergeant. He testified that Kirk told him that Riemer's assignment to C.I.B. was only for so long as Cooper could spare her.

Kirk's version is also consistent with the uncontroverted evidence that in February of 1992 Cooper had a police cadet who was assisting him on the front desk and, hence, did not require Riemer's assistance there. However, when that situation changed in early April 1992, both Kirk and Cooper testified that Cooper requested Riemer's assistance on the front desk and she was reassigned to do so. Riemer agreed that she had been reassigned in April of 1992 but testified that she was not concerned about it because she assumed she would be returning to C.I.B. once the block was completed. She did not testify that she was not concerned because her pregnancy was proceeding uneventfully to this point, and she was able to work the night shifts.

I find that even if Kirk was not explicit about the temporary nature of the assignment to C.I.B., it was unreasonable for Riemer to conclude, in the face of Kirk's silence, that her assignment would continue for the duration of her pregnancy. She knew that she could be reassigned at any time at the request of Cooper and on the order of Kirk. Further, without the subsequent health difficulties, any such reassignment was not discriminatory and would have been a routine part of policing with the York Regional Police.

The Health Difficulties

Riemer testified that she first experienced difficulty with her pregnancy while working the front desk during the night shifts of April 8 and 9. She said that she began having difficulty sleeping and experienced cramping and burning when urinating. Riemer testified that she had a history of bladder infections and she concluded that she was experiencing a recurrence. Riemer testified that she sought medical advice which confirmed that she had a bladder infection for which she was prescribed medication.

Riemer was not scheduled to work between April 10 and 13. She returned to the fraud office for the block of April 14 to 17 and worked 12-hour day shifts with the exception of April 17, on which she had scheduled to take accrued time off. Riemer next worked the block of April 22 to 25 on straight 12-hour days in C.I.B. She saw her doctor on April 22, because her condition was not improving. She obtained another prescription. She was not scheduled to return to work until April 30.

Riemer was admitted to York County Hospital on April 29, and remained there until May 4. While in the hospital she was treated with medication, and the foot of her bed was elevated. Her condition, and that of her fetus, was monitored. She said her doctors advised her not to work until she had seen them both on May 11. On discharge, she was advised to get as much rest as possible and to elevate the foot of her bed. Neither doctor told her that she was not to work night shifts. Riemer testified that she believed she would be able to get a lot of rest because she was assigned to straight days in C.I.B. and she assumed she would be continuing in that assignment. As a result, she said there was no need to obtain a medical note requesting relief from night shifts.

As a result of her hospitalization, Riemer did not work her scheduled block of April 30 - May 3. Riemer testified that either she, or her husband, contacted the sergeant on duty at the front desk at No. 4 District and advised them of her hospital stay. In cross-examination, she acknowledged that the records of York Regional Police did not indicate a hospital stay for that period, and that no sick time was deducted from her sick bank.

Both Cooper and the District Stenographer responsible for handling sick leave credits, Lori Hoskins, testified that they did not know about Riemer's hospital stay until a date long afterwards. Kirk also testified that he was not aware of her hospital stay. It is unlikely that, if a call had been made to the station, that one of those witnesses would fail to recall it.

For the block of May 8 -11, Riemer took statutory time off. She said that she did so because the York Regional Police did not like officers to take sick time. In cross-examination she admitted that it was her election to use statutory time off for this absence and that was how it was recorded in her attendance records. I heard no other evidence which supported a general feeling that use of sick time was frowned upon by York Regional Police.

Riemer testified that she returned to work on May 16 expecting to return to C.I.B. On her return she read, for the first time, an e-mail from Kirk, which appeared to have been sent April 28, advising that "due to her condition", and "to adhere to present departmental policy", she was to work with her platoon on the front desk for the balance of her pregnancy. The e-mail had been copied to the detective in charge of C.I.B., to Cooper, and to Fleming. She testified that she was upset by the e-mail, which she did not understand, particularly its reference to departmental policy. There was, and is, no written departmental policy.

Riemer testified that she took the e-mail to Cooper, and advised him that she was just out of hospital, and could not work nights. She said that Cooper told her not to worry about it because Kirk was off for a few days and another officer needed accommodation for an ankle injury. Cooper assigned that officer to the front desk and she continued in C.I.B. for that block. Riemer testified that she called her husband about the e-mail after her conversation with Cooper.

Kirk testified that on April 28 he sent an e-mail to Riemer indicating that she had been assigned to the front desk. He testified that, when he sent the e-mail, he had no information about her medical condition, her hospitalization, or her ability to work rotating shifts on the front desk. He said that he sent the e-mail because Cooper had advised him that No. 4 District was losing its cadet and because Cooper indicated that he needed her on the front desk or he would have to take another officer off the road. He said that Cooper was concerned that Riemer would be upset about the reassignment.

Cooper's evidence supported that of Kirk, in that he said the reassignment was initiated by him.

I find that Kirk's explanation, supported by the evidence of Cooper, is reasonable. At the time he sent the e-mail, Kirk could not have known that Riemer would not receive it for two weeks after it was sent, or that in the intervening period she would be hospitalized. Kirk testified that he was not aware of her hospitalization until some time later; possibly after she had been reassigned to C.I.B. in June 1992.

The May 19, 1992 Conversation

Riemer testified that she spoke to Kirk about the e-mail on May 19, Kirk's first day back at the District after his holidays. She said that this was the first time she had spoken to him about the difficulties she was experiencing with her pregnancy.

Riemer's evidence was that she advised Kirk that she had been in the hospital; was having pregnancy-related complications involving her kidney; and that she was unable to work nights. She said that she provided him with a note from Dr. Jackson regarding her stay in hospital and indicating that she was presently under his care for complications arising from her pregnancy. She testified that Kirk said he could not accommodate her on her word that she would be sick if she worked nights. She testified that she told him that both of her doctors could provide notes exempting her from night duty. She said that he responded by saying that he could not give her special treatment, and that if he set a precedent with her then all other pregnant police women would also want relief from night shifts. She testified that he said "we will see how sick you get". She said he explained that if she were a carpenter and were unable to perform her job, he could not give her a job counting nails if that job did not exist.

Riemer testified that she suggested that she work days on the front desk and someone else could work the nights. According to Riemer, Kirk responded that he could not accommodate her and that, due to her pregnancy, her platoon was already short staffed.

Kirk's recollection of the May 19 conversation differs dramatically. He described the conversation as being extremely brief and Riemer's demeanor as aggressive and confrontational. He testified that she did not tell him that she had been hospitalized and that he did not learn of her hospitalization until June. Kirk denied that, during the meeting, Riemer gave him a doctor's note regarding her hospital stay. He testified that Riemer told him that, if she was required to work nights, she could have a kidney problem. He responded that she was to let him know if she had a problem. He said he told her that he was not prepared to leave her in C.I.B. because Cooper had requested her on the front desk to replace the departing cadet. Without Riemer, Cooper would require another officer from road duties, resulting in one fewer car on the road.

Kirk testified that he was concerned that Riemer might have kidney difficulties and that was why he asked her to let him know if she had a problem. Thereafter he received no information from her that she was encountering any difficulties. He said that if there were serious problems he would expect her, or the platoon commander, to advise him. He testified that the first time that he was aware that there might be complications with her pregnancy was when he received a message to call her doctor on June 15,1992.

Kirk denied that, during this conversation, he gave Riemer an example of a carpenter being unable to perform her job. Later in his evidence he acknowledged that he used that example but in a different context.

Riemer acknowledged in cross-examination that at the time of her conversation with Kirk on May 19, 1992, her doctors had not told her that she could not work at night. They had told her to get a lot of rest. While she testified that both of her doctors could have produced a letter with respect to her not working nights, she did not produce such a medical letter at that time and, in fact did not do so until June 18.

The note from Dr. Jackson regarding her hospital stay was not filed in evidence, and was not available in Riemer's file. Her explanation for its absence was that her file had been purged. No evidence was called to support this allegation. Dr. Jackson did not have a copy of the note, nor a record of one. He was only able to say that it was his practice to provide a note to patients on a prescription pad to explain an absence. Further, as discussed above, Riemer's attendance records do not reflect a medical absence for that period of time.

All of this, combined with the evidence of Cooper and Hoskins that they had no knowledge of her hospital stay, leads me to conclude that no note regarding her hospital stay was provided by Riemer at the meeting on May 19, 1992. Further, for the reasons I discuss in some detail below, I found Kirk's account of the conversation a more reasonable and credible one. I have concluded that Riemer did not want to work the night shifts, out of her own concern for her health, but at that time did not have the medical information to support her request. Kirk did not want to set a precedent of pregnant officers being relieved of night shifts unless such was medically required. He expected Riemer to keep him advised of her health requirements. She interpreted his "we will see" as somehow threatening.

Riemer testified that, after her conversation with Kirk on May 19, 1992, she was extremely upset and called her husband. She felt that Kirk did not care about her or her difficulties. She said that she was afraid to question his authority because "in policing you do what you are told to, when you are told to". She testified that while she told him she could obtain doctor's notes regarding relief from night shifts, she did not do so because he was her Inspector, and she had to do what she was told. She said she was afraid of what would happen if she produced a doctor's note. She said she could have been transferred and that in policing "you just do not question the ranking authority". She stated that officers who questioned authority became ostracized. She said that she and her husband decided they would try and get through it the best they could.

I did not accept Riemer's evidence that she would not question authority and would do as she was told. In cross-examination Riemer acknowledged that she had in the past questioned authority and when the need arose, argued for changes to policies that applied to pregnant officers. I was given two examples of this, both involving Riemer's first pregnancy.

In 1990, while pregnant with her first child, Riemer was required to attend annual firearms training. She declined to do so on the basis that it could put her fetus at risk. Upon receiving an order from the Deputy Chief of Police requiring her to attend the training, she responded that she had discussed the firearms training with her Inspector and had been relieved from complying with it that year. Riemer said in cross-examination that she was not technically disobeying an order because, if headquarters had known she was pregnant, they would not have sent her to requalify. That being said, she was prepared to question an Order from the Deputy Chief of Police and to seek the assistance of her Inspector to persuade Staff Services of the legitimacy of her position.

Secondly, while she testified in chief that her request for relief from night shifts was the first time she had stood up for her rights and sought the assistance of her Association, she acknowledged in cross-examination that she had sought the Association's assistance to receive payment for court attendances while on her first maternity leave. Previously, pregnant officers had not been paid for scheduled court dates which fell during maternity or parental leaves.

Inspector Gordon Smyth testified that he had worked with Riemer in 1988 when she was in No. 3 District. He described her as hardworking, aggressive and being able to stand up for herself. He recalled Riemer attending the police office at the court house with her first child, and stating that someone would have to look after him because she was not paying for a babysitter while she was in court and that if no one would look after him, she would take him into court. Shortly thereafter the Association contacted him and asked him to deal with the issue of payment for court attendances during pregnancy leave.

When called in reply, Riemer agreed that the events described by Smyth had occurred. She explained that she was not able to arrange babysitting for the large number of scheduled court appearances during her maternity leave and was therefore required to bring her child with her to court.

These two examples of Riemer's earlier behaviour contradict her evidence in chief that she was reluctant to question ranking authority or to involve her Association. As a result, I conclude that when Riemer elected to take no further steps in May to obtain doctor's notes, or to seek the assistance of her Association, her Sergeant or Staff Services in arranging a schedule change, it was an election made with full knowledge that there were other avenues she could have pursued. Instead she decided that she would carry on.

Events Following May 19, 1992

Riemer was scheduled to work on the front desk for the block of May 24-27. On the night of May 26 she worked a full shift but did not feel well. She felt cramping and severe pain travelling down into her left leg. She was unable to sleep afterwards and worked only part of her shift the following evening. Riemer indicated that Cooper gave her permission to leave early that evening. Her health problems continued, and she went to see Dr. Jackson on May 28 and Dr. Levers on May 29.

She next worked June 1-4. She was able to complete her full 12-hour shifts on the days of June 1 and 2. She was sent home sick at 1:00 a.m. on the night shift on June 3, and did not work her scheduled night shift on June 4.

She said that she did not approach Kirk to tell him about the problems she was experiencing on the night shift. She testified that Kirk would have known she was leaving early because he was required to sign the duty exception forms, which recorded early departures and absences. Riemer also testified that her departures and absences would be recorded on the Inspector's Summary Report which was prepared by the Sergeants and detailed significant happenings from the previous night shift.

Kirk denied that he regularly signed duty exception forms. His clerical assistant, Lori Hoskins, supported this evidence. Further, Cooper testified that he might not have recorded her early departures on the duty exception forms and that, while her absences were recorded, the reason for them would not be. A review of Riemer's computerized attendance records does not reveal records of early departures.

Kirk testified that Riemer never spoke to him again about the problems she was having on the night shift, or problems with her pregnancy generally, despite continuing contact he had with her. Riemer agreed that she had not done so. Kirk said that Cooper had the authority to allow a member of his platoon to leave early. Technically the time should have been accounted for but it was not always. Kirk said that if anyone was going to give an officer a break, it would be Cooper. He said that if the absent officer did not officially lose time, he would not be advised of the absence on the Inspector's Summary Report. Cooper agreed with Kirk in this regard.

Kirk said that, even if he had seen Riemer recorded as absent, he would not have thought it unusual, because absenteeism is generally more common on the night shift, and particularly on the second night shift in a block.

After hearing the evidence of Kirk, Hoskins and Cooper, I find that Riemer's early departures were not recorded, and that if her absences were, the reasons therefor were not noted. Hence Kirk would not have known about them. I find, based on all the evidence, that Kirk was not made directly or indirectly aware of the problems Riemer was experiencing on the night shift.

Events in June 1992

Riemer was next scheduled to work the block of June 9-12. On June 11, the first scheduled night shift, she testified that she was unable to complete the shift and that Cooper arranged for two officers to come off the road early and drive her, and her car, home. Cooper called Michael Riemer to advise him she would be coming home early. Cooper asked her if she wanted to go to the hospital but she said she did not. On June 12, she booked off sick.

Cooper said that if he had been aware that Riemer had a serious medical problem, he would have mentioned it to Kirk, or recommended that she get a letter from a doctor stating that she was not able to work nights. He said that when he allowed her to leave early, he did not necessarily record the departure as >lost time' on the duty exception sheets. He said he was in charge of the platoon and took it upon himself to let her go early. He did not recall completing a duty exception sheet and he testified that he would not necessarily have advised Kirk that she went home early.

More significantly, Cooper did not recall Riemer asking him for assistance in obtaining relief from night shifts, and was adamant that he would never refuse to go to Kirk with such a request. He testified that he had known Kirk for 23 years and could not think of a reason why he would be concerned about approaching him.

I find that, as a result of the good intentions of Cooper, to ensure that Riemer did not lose time for her early departures, he did not record them on the duty exception sheets or the Inspector's daily report. Therefore, Kirk would not have been aware by this means that Riemer was having difficulty on the night shifts. It was uncontradicted that Riemer did not advise Kirk directly of her continuing difficulties. Nor did Cooper advise him. It is therefore my conclusion that Kirk had no knowledge of her difficulties.

Riemer testified that her health continued to deteriorate. She said that she saw Dr. Levers on June 15, and that while she was in his office, Dr. Levers attempted to contact Kirk to discuss with him relief from night shifts. He left a message for Kirk to call him. Dr. Levers told her she was not to work any more nights. Riemer testified that she was given a letter to that effect by Dr. Levers' secretary on June 15. The letter that was filed was inexplicably dated June 16.

Dr. Levers agreed that he had tried to reach Kirk on June 15, and that he provided Riemer with a medical note. His recollection was that he asked his secretary to prepare the note on the 15th and she did it the following day.

Kirk testified that he received a message to contact Dr. Levers regarding Riemer. He said that he attempted to reach Riemer at home and got no answer. He said that he learned that Michael Riemer was in the station, in the gym, and that he went to see him and asked him if he knew why the doctor was calling him. Michael Riemer responded that it was about Riemer working days. Kirk recalled that he responded by saying that he did not know what headquarters would do with Riemer if she could not work the front desk. They might send her to the radio room. Kirk testified that Michael Riemer started yelling at him and Kirk raised his hands and walked out of the gym.

Kirk testified that if he was advised that Riemer could not work nights, and this was supported by a medical note, he would involve Staff Services.

Kirk testified that, after speaking to Michael Riemer, he contacted Riemer, who told him that her doctor thought she should work straight days. Kirk said that he asked Riemer to have the doctor mail, or fax, him a letter to that effect. He said he did not mention to Riemer the possibility of an assignment to the radio room.

Michael Riemer testified that he was in the gym at the station when Kirk came in and asked him what the doctor wanted. He said he told Kirk that the call was about Riemer not working nights and that Kirk responded that he did not call doctors. Michael Riemer testified that Kirk said that if Riemer could not work with her platoon, she could go to the radio room. Michael Riemer replied that it was the nights that she could not work.

Riemer testified that on June 16, she received a telephone call at home from Kirk. He asked her what her doctor was calling about. She said that she tried to explain that she could not work nights. He responded that if she was so fragile, she should not be working at all. Riemer indicated to Kirk that she had a letter from her doctor that said that she should not be working nights. Kirk responded that if she gave him a letter, she would be transferred to the radio room and said that he had already spoken to someone there about her transfer. She testified that he said that he did not want to set a precedent for future pregnant police officers. She testified that she repeated that she could not work nights and he told her that she could take early maternity leave or go to the radio room.

Kirk denied that he told either Michael Riemer or Riemer that he did not call doctors. He said that he may have told Riemer that he had not yet called her doctor back. He agreed that if he had not reached either of the Riemers, he would have called the doctor back.

Riemer testified that she spoke to her husband and learned that Kirk had asked him about the message from Dr. Levers. They decided that she should speak to the Association to see if they could assist her. She contacted them and spoke to Sergeant Stojanovik. She said that she told him about the problems she was having and that he told her not to worry because the police force had to accommodate her. He asked her to put everything in writing and to send it to Paul Bailey, the president of the Association. Riemer testified that she prepared her summary on June 16 and faxed it to Paul Bailey on June 17. I found it curious, and significant, that Riemer did not mention in her fax to the Association that she had obtained a letter from Dr. Levers on June 15 in which he said that she was not to work nights. If she had such a letter on June 15, I would have expected her to mention it.

Bailey recalled that in the early afternoon of June 17, he contacted both Riemer and Kirk, and that as a result of that conversation, he recorded that the issue had settled. He had no detailed recollection of his conversation with Kirk, or to whom he had spoken first. He indicated that he knew Kirk quite well and got along with him. He thought they could have come to an agreement.

Riemer was scheduled to work the front desk for the block of June 17-20. She testified that after she sent the fax to Bailey, she was walking by Kirk's office and he asked her to step in. He told her that he had checked her screen and that she had no sick time left. He said that she had two choices, either to move up her maternity leave and start it now, or to move to the radio room and work day and night shifts with them. She testified that he said that he had already made the necessary arrangements with the radio room. She said she responded that she had only three and a half blocks left and wanted to work days only. Kirk said he would not accommodate her. She testified that she told him that she had talked to the Association and that they told her she had to be accommodated.

Riemer testified that Kirk responded by telling her that going to the Association was the biggest mistake she had ever made, and that she would live to regret it. She described him getting up out of his seat so that he was physically threatening to her. He said that no one would tell him where they were going to work, this was his station, and that he would transfer both Riemers out of No. 4 District.

Riemer said that she was so upset by the altercation that she left his office and went to the washroom to compose herself and then went back to work at the front desk. She described that Sergeant Fleming was there and Kirk's stenographer, Lori Hoskins. She described that Kirk came out of his office and asked her two or three times to admit to him that he could transfer her anywhere he wanted. She said that both Fleming and Hoskins got up and left. She said that she was crying and admitted that he could transfer her; she then went into the locker room. When she came out of the locker room, Kirk said "I will let you go back to C.I.B." Riemer said that she thanked him and he went back to his office and closed the door.

Riemer described that she continued to work on the front desk that day and that Paul Bailey telephoned her to ask her if everything was okay. She told him that Kirk had decided to accommodate her. Riemer said that Bailey told her that he had talked to Kirk that day.

Kirk gave a very different version of events. He testified that, following the discussion regarding the phone call from her doctor, Riemer confronted Kirk and was angry that he had spoken to her husband about her problems. She said that he should never again talk to her husband about her business. Kirk said he was surprised, tongue-tied, and felt that he had been scolded by her.

He testified that later that same day, Riemer asked him why pregnant officers at other Districts were allowed to work straight days when she was not. He described her tone as loud and confrontational. He said that they were alone by the front desk, with the exception of a member of the public, who was in the waiting area. He responded by telling Riemer that he did not know what the situation was at the other districts, but that police officers all had to do what they were told, including him. He said he told her that she was lucky that there were a lot of accommodation options available to her in the police force, unlike other jobs, like those in the construction industry where they could not create a job counting nails. He said his example might have been a poor one, but he was essentially telling her to stop being confrontational and to be grateful for her job.

He said that she did not mention that she had a doctor's note, nor did she give him one or mention anything about her physical condition. He was unaware that she had contacted the Association. He testified that if she had told him she had contacted the Association he would have called Bailey because he knew if there was a problem he and Bailey could have solved it.

He said that Riemer began crying and he suggested that she go and compose herself. He remained at the front desk while she did so. When she returned, he said he told her it was okay for her to go back on straight days in C.I.B. He denied that he threatened her for going to the Association or that he ever threatened to transfer her or her husband. He said that he had no reason for being concerned about her going to the Association because it was not the first time someone working for him had contacted them, and it was not a big deal. He testified that he had been active in the Association earlier in his career and was a former member of its executive.

He said that he did not recall ever speaking to Bailey specifically about Riemer. He did say however that, if Bailey testified that he had spoken to him, he would have no reason to disbelieve him. Kirk did not advise Staff Services that Riemer was back in C.I.B. because there was no need to do so. He recalled receiving a doctor's note from Riemer some days later.

It is not possible to reconcile these two versions of what was said and done on June 17. Hoskins was called as a witness and asked about the incident at the front desk. Hoskins did not support the testimony of Riemer, despite Riemer's evidence that Hoskins left the front desk area when the altercation started. Hoskins testified that she did not recall leaving the front desk area because Kirk and Riemer were having a confrontation. In fact she did not recall anything like that happening in her tenure and never recalled Kirk raising his voice with anyone in the district. She said that from where her desk was located she would have heard him do so. Sergeant Fleming, the other witness that Riemer named, is now deceased.

I heard no evidence which would explain why Kirk would have been so angry if told by Riemer that she had gone to the Association for assistance. The fact that he had been an active member of the Association as a constable made it unlikely, in my view, that he would have been concerned about Riemer going to the Association.

Further, the doctor's note was not delivered to Kirk at this time and this omission is inexplicable. Based on all of this, I find that Kirk's version of the events on that day was more credible than that of Riemer.

Findings on Credibility

I have concluded that based on all of the evidence, and based on the manner in which their evidence was delivered, Kirk was the more credible of the two witnesses.

On a number of occasions during her cross-examination Riemer was argumentative and difficult when questioned about areas which were not central to this dispute. For example, she was argumentative and unresponsive when asked questions about the length of time she spent in the radio room for an ankle injury in 1991.

She unnecessarily disputed that the night shifts at No. 4 District were quieter than the days. This position was unreasonable in light of the overwhelming evidence to the contrary from other officers and Kirk. In fact, it was established that No.4 District did not administer breathalyser tests or have holding cells, which meant that it was a quiet station at night.

Further, whenever it was pointed out to her that the evidence to be led by the employer might differ from hers in a given area, she became belligerent and confrontational suggesting that the respondent witnesses would be lying.

Her reaction to questions asked in cross-examination was markedly different from her reaction and style of answering questions asked in chief. I found this aggressive and confrontational attitude to be at odds with her stated evidence that she was afraid to question authority. Rather, the attitude displayed during cross-examination was more consistent with her actions in refusing to attend firearms training and in demanding that other officers babysit her child during court duty. This is not to suggest any criticism of her actions in those two instances. They may well have been justified and appropriate. However, these are not the actions of a constable who would fail to seek the assistance of her doctors, her Sergeant, her Association, or her headquarters when she ran into difficulties with Kirk. Nor are they the actions of an officer who was afraid to challenge the ranking authority when her rights were at issue.

Subsequent Events

Riemer testified that she gave Dr. Lever's note to Kirk on June 18, 1992 after she had returned to C.I.B.. She said she gave it to him to prove she was really in need of accommodation. She worked the balance of that block in C.I.B.

Riemer was admitted to the hospital on June 25 and remained there until June 29. She returned to work and worked the block of July 3-6 and the block of July 11-14 both in C.I.B. and then three days in the following block. Her labour was induced on July 26 and she delivered on July 27, 1992.

CONCLUSION

An employee requesting accommodation has an obligation, or responsibility, to communicate his or her need in sufficient detail to enable the employer who is to provide the accommodation to respond to the request. Further, the employee seeking accommodation must co-operate in the consultation regarding the scope of the accommodation (Bonner v. Ontario (Ministry of Health) (1992), 1992 CanLII 14236 (ON HRT), 16 C.H.R.R. D/485; Belliveau v. Steel Co. of Canada (1989), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250; Strauss v. Ontario (Liquor Licence Board) (1994), 1994 CanLII 18415 (ON HRT), 22 C.H.R.R. D/169).

The extent to which this communication and co-operation is required may vary depending on how apparent the need for accommodation is and, in some cases, the employer may be obliged to make inquiries. However, in this case, Riemer had a condition which was not apparent and which affected her ability to perform her job duties only at night. Unless she told her employer about her condition there was nothing visible or apparent which would have given rise to a duty on the part of the York Regional Police to inquire about the need for, and scope of, accommodation.

Riemer herself acknowledged that after her conversation with Kirk on May 19, she did not advise Kirk of her deteriorating health. Instead, she said that she believed he would have been aware from the Inspector Summary Report and the duty reception forms.

It was not sufficient for Riemer to rely on the chance that the Inspector's Summary Report or the duty exception forms might indicate her absences or her early departures and that this alone was sufficient notification to her employer of a need for accommodation such that their obligations were engaged. In any event, I have found that these potential sources of information did not reflect such a need.

As a result of all of the findings I have made above, I find that Riemer failed to prove that she had been discriminated against, or harassed in employment. The complaint in this regard is therefore dismissed.

THE REPRISAL COMPLAINT

Riemer alleges that because she sought the assistance of her Association, both she and her husband were transferred out of No. 4 District. She submits that the transfers were reprisal actions taken against her for pursuing her rights under the Code.

The Susan Riemer Transfer

Riemer testified that in September, 1992, while she was on maternity leave, she was transferred to No. 2 District-D Platoon. She said she did not receive notification of her transfer until she attended at No. 4 District to pick up her pay cheque. Subsequently, she was transferred within No. 2 District to A Platoon, which resulted in her being on shifts completely opposite to those of her husband.

It was agreed that transfers occur in the normal course of an officer's career. Usually an officer is notified in advance of a transfer between Districts. The transfer is then published in the form of an order from the Chief of Police or the Deputy. Orders are on occasion read out to the officers by the Sergeants at roll-call. In any event, copies of the orders are posted in the Districts.

Riemer said she eventually saw the order with respect to her transfer when her husband brought it home. Riemer indicated that a major transfer of a large number of officers occurred approximately once a year. In other circumstances, an officer could request a transfer. On occasion a transfer could occur as a punishment. She testified that she was not part of a major shuffle and she had not sought the transfer. She said she believed that her transfer was a punishment and that it was considered so by others in the District. This belief was not, however, put to the officers who testified on her behalf.

Kirk testified that while Riemer was on maternity leave, he received a telephone call from Inspector Barry Delaney with respect to a personnel problem he was having in No. 2 District. Delaney wished to move a female officer out of No. 2 District and asked Kirk to do a switch. Kirk indicated that, where he was going to give up a female officer he would try and get one in exchange because of their value in certain policing situations. In making the switch for Riemer he gained an officer he could put on the road. For Riemer, he said the transfer was only on paper as she was on maternity leave. Delaney and Kirk agreed to the transfer, and recommended it to headquarters.

Kirk testified that he tried unsuccessfully a number of times to reach Riemer about her transfer and had his sergeant continue to do so in his absence. Further, he said the transfer has had no actual effect on her because: she has not returned to York Regional Police; she was moving to the same platoon in the new district; and would be working the same shifts, on the same days as she had in No. 4 District. He further testified that Michael Riemer was aware of the transfer because it was published and posted in each District. In addition, on occasion the Sergeant might read out the transfers when the officers reported for duty.

In deciding to transfer Riemer, Kirk testified that he was concerned about the incident he had had with Michael Riemer in the gym, and his subsequent discussion with Riemer in which she told him not to speak to her husband about her problems. He indicated that he was more concerned about Michael Riemer than he was about Susan Riemer and that he thought that the transfer of Susan Riemer would be good for her husband.

At the time of the transfer, Kirk testified that he was not aware that Riemer had complained about him to the Association. He first became aware of that complaint in December of 1992 when he was called into Deputy Chief Wilson's office and asked to comment about the complaint.

Kirk recalled Riemer attending at No. 4 District to pick up her pay cheque. He was seated in his office when Sergeant Thorpe came in and said that Riemer had "flipped out". He did not leave his office or have a conversation with her. Hoskins was at the front desk at the time and supported Kirk's evidence that he had remained in his office during this time.

Kirk testified that some time later he became aware that Delaney had transferred Riemer from D Platoon to A Platoon in No. 2 District. He said he was aware that the transfer was on paper only. He had no idea why Delaney made the platoon change, and had no involvement in discussions regarding it.

Inspector Barry Delaney testified that he was involved in the transfer of Shannon Ewing to No. 4 District. He testified that Ewing approached him and requested that she be transferred as a result of a personal problem she was having in his District. He said that he initiated a call to Kirk and reached agreement with him exchanging Ewing for Riemer. A formal request was written to headquarters by Kirk and, ultimately, an order was issued.

Delaney said that the subsequent transfer of Riemer from D Platoon to A Platoon in 2 District was initiated by him without the involvement, or knowledge, of Kirk. It was strictly a paper transfer to balance the numbers in his platoons. When he called Riemer to tell her about the paper transfer, he recalled that she was upset and hung up on him.

I find that Kirk did not initiate the transfer of Riemer. Kirk said that in his experience working with Riemer, if she got what she wanted she was happy and if she did not she was difficult. He said that he could foresee problems with her, problems which were compounded because her husband was in the District too. Exchanging Riemer for Shannon Ewing gave him the additional bonus of having an extra car on the road which he had lost with Riemer's maternity leave.

Kirk was able to explain, to my satisfaction, his reasons for selecting Riemer as the officer to be switched and I found no facts to support a suggestion that it was done because Riemer had pursued her rights to accommodation under the Code. Delaney's evidence fully supported that of Kirk and I am therefore unable to find that the transfer was in retaliation and was therefore a reprisal under Section 8 of the Code.

The subsequent shift from D Platoon to A Platoon was done by Delaney, without the involvement of Kirk, and was a paper transfer only. I was not persuaded that the second transfer was a reprisal action in light of the evidence I heard regarding its genesis and implementation.

The Michael Riemer Transfer

Michael Riemer was advised in December, 1992 that he was being transferred to the Court Bureau which was described by him as a known punishment detail. Bailey testified that assignment to the Court Bureau was generally considered by members of the Association to be a punishment detail although not all officers assigned there were being punished.

Michael Riemer testified that his transfer to the courts was an act of reprisal against him and Riemer. Michael Riemer testified that he heard second and third hand that his transfer was as a result of the "Kirk and Riemer's" thing. He said he spoke to Kirk about it and Kirk said he was being transferred to the courts as a part of a group transfer. Michael Riemer advised Kirk that he had already been assigned to the Court Bureau and that he would grieve the transfer. He testified that the transfer was a fulfilment of the threat Kirk made to Riemer. Because Michael Riemer was not a complainant in this case, I ruled that evidence with respect to his transfer was only relevant to the extent that it could be considered an act of reprisal directed at Riemer.

Inspector Davies testified that he was in charge of Staff Services. In that role, he was responsible for the movement of personnel between districts. He testified that transfers were used by the York Regional Police as a method of skill development and to expose officers to all areas of policing. He testified that the Chief of Police was ultimately responsible for all transfers. He developed the list of people recommended to be transferred after obtaining input from as many people as possible, including staff sergeants and sergeants. The final transfer list went out by way of orders from the Chief of Police or his Deputy.

Davies testified that in 1992 the Court Bureau was staffed by constables who rotated in and out on a six month basis. He testified that most constables did not like the posting so assignments were done as fairly as possible trying to ensure that no one went there more than once. Assignments were tracked on a board in his office and were recorded in each officer's computerized file.

Davies testified that he could not recall how the transfer of Michael Riemer to the Court Bureau was arranged. He could not recall whether it was suggested by his Sergeant or his Staff Sergeant. He testified that after the order came out, Kirk called him and told him that Michael Riemer had already been to the courts and it would not be fair to send him back again. Davies then went to his superiors and asked if Michael Riemer could be sent somewhere other than to the Court Bureau and a decision was made to move him to No. 1 District. Davies testified that Kirk had no involvement in the decision to transfer Michael Riemer to No. 1 District. Davies said that it would have caused internal difficulties if Michael Riemer had stayed in No. 4 District and another officer had been sent to the courts. Michael Riemer therefore remained on the transfer list.

Kirk testified that upon learning that Michael Riemer had already had a tour of duty in the courts, he contacted Davies and asked that the transfer be rescinded. After his conversation with Davies, Kirk testified that he expected that another order would come out rescinding the court bureau transfer and leaving Michael Riemer in No. 4 District. Instead Michael Riemer was transferred to No. 1 District. Kirk indicated that he made efforts to notify Michael Riemer of the transfer. He was unsuccessful. He then asked Sergeant Thorpe to continue to try and reach him, and he too was unsuccessful. In all, eight calls were made.

I find that it is not credible that Kirk would first have recommended that Michael Riemer be transferred to the courts in a reprisal action, and later take steps to have the transfer revoked. Further, if Kirk had originally recommended the transfer, but had later become involved in revoking it, I would have expected Davies to have recalled that. I therefore find that the transfer of Michael Riemer to the Court Bureau was not an act of reprisal against Riemer.

In the result I have concluded that neither the transfer of Riemer, nor that of Michael Riemer, constitute acts of reprisal pursuant to the Code.

ORDER

The complaints are dismissed.

Dated at Toronto this 6th day of October, 1998:

Heather MacNaughton Adjudicator, Board of Inquiry