A recent decision of the Federal Court has affirmed the importance of a Federal government employee’s right to procedural fairness.

The dispute centred around whether an employee, in appealing his annual performance review, was entitled to see documents explaining his appraisal. The employer, a federal agenct, utilized what is often referred to as a “pay-at-risk” performance rating system. Under this system, an employee’s performance rating is used to determine the amount of their annual bonus, or “performance award”.

Upon receiving a negative performance rating, the employee appealed to his direct supervisor and then to the Assistant Deputy Minister. Both appeals were dismissed. It was only after filing a request for disclosure of documents pursuant to the Access to Information Act that the employee discovered that he had not been given access to a critical document. The document, which the Assistant Deputy Minister had relied upon in making her decision, outlined the employer’s reasons for granting the negative rating.

The issue before the Federal Court was whether the employee had been given sufficient procedural fairness during his appeal. The factors for determining the level of procedural fairness required (outlined by the Supreme Court in Baker), include the importance of the decision to the individual. On this matter, the Federal Court held that:

“…[the] performance rating carried significant financial implications for the Applicant and cannot be casually dismissed as a mere “administrative decision”, as suggested by the Respondent.” (at para 35)

Ultimately, the Federal Court found the employee’s right to procedural fairness had been breached and ordered the matter to be re-determined.

This article was written with the assistance of Erika Anschuetz , summer student.

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