PSGB# P-2024-01943

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Barnes

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Andrew Tremayne Vice Chair

FOR THE COMPLAINANT

Patrick Barnes

FOR THE EMPLOYER

Christopher New Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

September 12, 2025 submission completed

Decision

1This decision deals with a preliminary objection by the Employer concerning the complaint of Patrick Barnes. Mr. Barnes is a Staff Sergeant at the Ottawa Carleton Detention Centre (“OCDC). His complaint is that he was skipped for an overtime opportunity (a T530 shift) on September 6, 2024. The remedy he seeks is to be paid at time and a half for the shift and to be otherwise made whole. He also seeks compensation for pain and suffering and for working in a poisonous work environment.

2Mr. Barnes says that according to the Employer’s overtime protocol, he should have been offered the overtime shift. He alleges that the Employer has failed to follow its own overtime protocol (the Provincial Overtime Protocol) as well as a breach of the Respectful Workplace Policy, the Ontario Correctional Services Code of Conduct and Professionalism (COCAP), and other legislation.

3The Employer raises a preliminary objection, asking that the complaint be dismissed. The Employer argues that Mr. Barnes has failed to advance a prima facie case that the Employer has breached a working condition or term of his employment. The Board, therefore, lacks the jurisdiction to award a remedy, submits the Employer. Mr. Barnes resists the Employer’s objection and asks that the matter proceed to a hearing on its merits. The parties agreed that the Board would rule on the Employer's objection based on written submissions exchanged in accordance with an agreed schedule.

4Put succinctly, the Employer argues that the Provincial Overtime Protocol does not apply to Mr. Barnes. It does not form part of his working conditions nor is it a term of his employment. The Provincial Overtime Protocol applies to Correctional Officers, who are bargaining-unit employees, not to Staff Sergeants. Mr. Barnes’ working conditions and terms of employment are set out in the Management Compensation Directive.

5As a Staff Sergeant, Mr. Barnes is a Schedule 5 employee. Under the Directive, a Schedule 5 employee has no entitlement to overtime, but if he works extra hours, he is paid at an overtime rate. The Directive is otherwise silent about overtime for Schedule 5 employees. There is no prescribed process for its distribution or assignment among Staff Sergeants.

6For the purpose of this decision, the Board assumes that the facts as set out in the complaint are true or could be proven to be true.

7The Board only has the powers granted by the Public Service of Ontario Act and the regulations made under that legislation, notably Regulation 378/07, which states as follows:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

8Mr. Barnes does not dispute that the Management Compensation Directive covers him. The Directive is nearly 100 pages long, including its appendices. The relevant section on overtime is about five pages long. It is attached to this decision as Schedule “A”. There is no mention of the Provincial Overtime Protocol, nor is that Protocol or any other incorporated by reference. There is also no mention of eRoster, the system the Employer uses to administer overtime, or any other system used to distribute and schedule overtime.

9The Board has said it does not have jurisdiction to award remedies such as those sought by Mr. Barnes unless a contractual term already requires him to be entitled to them. In other words, if he had identified a working condition or term of employment that applies to his classification, the Board could enforce it. The Board does not have the power to create new ways to compensate Schedule 5 employees, nor does it have the power to compel the Employer to enforce a working condition or term of employment that isn’t there. See, for example, MacDonald et al. v. Ontario (Community Safety and Correctional Services), 2014 CanLII 76836 (ON PSGB); Ilika v. Ontario (Community Safety and Correctional Services), 2014 CanLII 76834 (ON PSGB), Hasted/Berezowsky v. Ontario (Community Safety and Correctional Services), 2015 CanLII 7473 (ON PSGB) and Boucher v. Ontario (Community Safety and Correctional Services), 2018 CanLII 119631 (ON PSGB).

10The Board has also held that, in the absence of a working condition or term of employment that the Board can enforce, it does not have jurisdiction to order a remedy based solely on the belief that something is unfair. See, for example, MacDonald et al. v. Ontario (Community Safety and Correctional Services), 2014 CanLII 76836 (ON PSGB) and Laird et al v. Ontario (Community Safety and Correctional Services), 2009 CanLII 43638 (ON PSGB).

11More recently, the Board ruled on a very similar claim for an overtime shift that was not offered and to which the complainant argued he was entitled. In White v. Ontario (Ministry of the Solicitor General), 2024 CanLII 6699 (On PSGB), the very same issue arose: a Staff Sergeant told the Employer he was available for overtime. On the shift in question, he was the next available Staff Sergeant but was not offered the overtime shift. The Board concluded that the complainant either needed to show that the Protocol applied to him or that the Directive required the Employer to offer overtime in a particular way. The Board said the following:

[13] The Protocol governs the assignment of overtime for employees in a bargaining unit. The Employer uses the e-Roster to assign overtime work in compliance with the Protocol. It has recourse to the Protocol for both operational managers and bargaining unit employees. However, the Protocol only applies to bargaining unit employees and does not apply to Schedule 5 employees. Therefore, the Complainant cannot ground his claim for a right to overtime on the basis of the Protocol as it is not a term and condition of the employment of Schedule 5 employees. His claim must be grounded on the Directive.

[14] The Directive sets out the working terms and conditions of employment for Schedule five employees. Section 10(9) provides a definition of overtime and section 10(3) provides for the payment of overtime for Schedule 5 employees. I have not been pointed to any provision which imports the Protocol or the e-Roster into the Directive. Consequently, I conclude that the Employer is not contractually or legally bound to distribute overtime following a prescribed set of rules and that it did not breach a term or condition of employment when it did not offer the shift in question to the Complainant.

[15] The paragraphs of section 10(9) of the Directive define the circumstances under which a Schedule 5 employee is eligible for overtime. All the paragraphs address situations when overtime work was performed (paragraphs 1-3) or an employee was called to perform overtime work (paragraph 4). No paragraph provides for compensation when overtime work was not performed.

[16] The Complainant cannot bring himself within the Protocol as it only applies to members of a bargaining unit and he is not a member of a bargaining unit. He is claiming that he should have been assigned overtime work. However, he cannot bring his claim within the terms of the Directive governing Schedule 5 employees, as it does not provide a scheme for the for assignment of overtime work. Moreover, the Directive does not make reference to the e-Roster for assigning overtime work. While the Employer utilizes the e-Roster for Schedule 5 employees, it is not obligated to follow it.

12I agree with and adopt the Board’s analysis and conclusion in White v. Ontario (Ministry of the Solicitor General) and find that they apply to Mr. Barnes’ complaint. For reasons set out above, the Employer's preliminary objections to the Board's jurisdiction to hear and determine this complaint are upheld. The complaint is dismissed and will not proceed to be heard on the merits.

Dated at Toronto, Ontario this 12th day of November 2025.

Schedule “A”

STANDARD OVERTIME

(1) The Schedule 3, 4 and 5 employees described in subsection (3) are entitled to compensation when they work overtime,

(a) as described in subsection (4) for full-time employees; and

(b) as described in subsection (5) for part-time employees.

(2) The amount and form of compensation are determined under this section.

(3) Employees are entitled to compensation under this section if they are employed in a class of position set out in Schedule 3, 4 or 5 and the class falls within the Management Compensation Plan.

(4) For the purposes of this section, a full-time employee is considered to be working overtime in either of the following circumstances:

1. When the employee, with the authorization of his or her supervisor, works more than his or her regular working period on a day that is a regularly scheduled work day for the employee.

2. When the employee, with the authorization of his or her supervisor, works on a day that is not a regularly scheduled work day for the employee.

(5) For the purposes of this section, a part-time employee is considered to be working overtime in either of the following circumstances:

1. When, on a regularly scheduled work day for the employee, he or she works more than the following, with the authorization of his or her supervisor:

i. Seven and one-quarter hours, in the case of a Schedule 3 employee whose regularly scheduled work day is 7% hours long or less.

ii. Eight hours, in the case of a Schedule 4 or 5 employee whose regularly scheduled work day is eight hours long or less.

iii. More than the length of his or her regularly scheduled work day, in the case of an employee whose regularly scheduled work day is longer than 7% or 8 hours, whichever applies.

2. When the employee, with the authorization of his or her supervisor, works at least one-half hour on a day that is not a regularly scheduled work day for the employee.

(6) Work on a holiday listed in subsection 32 (1) is not considered to be overtime work for the purposes of this section.

(7) An employee is not considered to be working overtime when the employee is on call, on stand-by or travelling.

(8) A Schedule 3 employee described in subsection (3) receives overtime credit calculated at time-and-a-half for the following work:

1. If the employee is a full-time employee who works overtime on a regularly scheduled work day and if the employee’s total hours for the week in which he or she works overtime exceed 36% hours, the employee is entitled to overtime credit for the time that he or she works in excess of 36% hours during that week.

2. If the employee is a part-time employee who works overtime on a regularly scheduled work day, the employee is entitled to overtime credit for the overtime work on that day.

3. If the employee works overtime on a day that is not a regularly scheduled work day, the employee is entitled to overtime credit for the time that he or she works on that day.

4. If the employee is called into work before the start of his or her next regularly scheduled work period, the employee is entitled to overtime credit for the time that he or she works before that regularly scheduled work period. If the employee works fewer than four hours, he or she shall be deemed to have worked four hours for the purposes of calculating his or her overtime credit.

5. Despite paragraphs 1 to 4, the employee is not entitled to overtime credit for hours worked without the authorization of his or her supervisor.

(9) A Schedule 4 or 5 employee described in subsection (3) receives overtime credit calculated at time-and-a-half for the following work:

1. If the employee is a full-time employee who works overtime on a regularly scheduled work day and if the employee’s total hours for the week in which he or she works overtime exceed 40 hours, the employee is entitled to overtime credit for the time that he or she works in excess of 40 hours during that week.

2. If the employee is a part-time employee who works overtime on a regularly scheduled work day, the employee is entitled to overtime credit for the overtime work on that day.

3 If the employee works overtime on a day that is not a regularly scheduled work day, the employee is entitled to overtime credit for the time that he or she works on that day.

4. If the employee is called into work before the start of his or her next regularly scheduled work period, the employee is entitled to overtime credit for the time that he or she works before that regularly scheduled work period. If the employee works fewer than four hours, he or she shall be deemed to have worked four hours for the purposes of calculating his or her overtime credit.

5. Despite paragraphs 1 to 4, the employee is not entitled to overtime credit for hours worked without the authorization of his or her supervisor.

(10) A Schedule 3 or 4 employee (other than an employee described in subsection (11) and a Schedule 5 employee shall be compensated as follows for the overtime credit he or she receives under this section:

1. The employee is entitled to take compensating leave equal to the amount of his or her overtime credit.

2. However, if the employee and his or her supervisor agree, the employee shall instead be paid a lump sum for all or part of his or her overtime credit.

3. Compensating leave must be taken before the end of the fiscal year after the fiscal year in which the employee earns the overtime credit.

4. If the employee does not take all of the compensating leave within that period, the employee shall be paid a lump sum for the remaining overtime credit.

5. Compensating leave may be taken at any time within that period that the employee and his or her supervisor agree upon.

6. If the employee and the supervisor do not agree upon the time when the compensating leave is to be taken, the deputy minister may decide when, within that period, the employee may take the leave.

(11) A Schedule 3 or 4 employee who is employed in a class of position that is also included in Schedule 7 shall be compensated as follows for the overtime credit he or she receives under this section:

1. The employee is entitled to be paid for his or her overtime credit.

2. However, if the employee and his or her supervisor agree, the employee shall instead be entitled to take compensating leave for all or part of his or her overtime credit.

3. Payment is to be made within two months after the pay period in which the employee works the overtime.

(1) The Schedule 6 employees described in subsection (3) are entitled to compensation when they work overtime as described in subsection (4).

(2) The amount and form of compensation are determined under this section.

(3) Employees are entitled to compensation under this section if they are employed in a class of position set out in Schedule 6 and if the title of the class indicates that the position is “excluded”. However, employees in the Crown Counsel 1, 2, 3 or 4 (Excluded) classes are not entitled to compensation.

(4) For the purposes of this section, an employee is considered to be working overtime when the employee, with the authorization of his or her supervisor,

(a) works on a day that is not a regularly scheduled work day for the employee; or

(b) works more than 36% hours in a week.

(5) Work on a holiday listed in subsection 32 (1) is not considered to be overtime work for the purposes of this section.

(6) An employee is not considered to be working overtime when the employee is on call, on stand-by or travelling.

(7) An employee described in subsection (3) receives overtime credit calculated at the following rate for his or her overtime work:

1. If the employee works overtime on a day that is not his or her regularly scheduled work day, overtime credit is calculated at one and one-half time for each hour of overtime that he or she works on that day.

2. If, during a week, the employee works more than 36% hours but less than 44 hours on his or her regularly scheduled work days, overtime credit is calculated at straight time for each hour of overtime work performed on a regularly scheduled work day during that week.

3. If, during a week, the employee works 44 hours or more on his or her regularly scheduled work days, overtime credit is calculated at,

(i) straight time for each hour of overtime work performed on a regularly scheduled work day during that week, for the hours of work between 36% hours and 44 hours on regularly scheduled work days, and

(ii) one and one-half time for each hour in excess of 44 hours worked on regularly scheduled work days during that week.

(8) Subsection (7) applies with respect to overtime worked on and after August 15, 2005.

(9) An employee shall be compensated as follows for the overtime credit he or she receives under this section:

1. The employee is entitled to take compensating leave equal to the amount of his or her overtime credit.

2. Compensating leave must be taken before the end of the fiscal year after the fiscal year in which the employee earns the overtime credit.

3. If the employee does not take all of the compensating leave within that period, the employee shall be paid a lump sum for the remining overtime credit.