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