Often objections are made that the first hearing lacked procedural fairness. This is an important issue as a review of the failure to do so is based on the standard of correctness.

Essentially, the court is asked to determine if the adjudicator’s manner of proceeding was fair. ¹

Such an issue arose in the judicial review proceedings in Amer v Shaw of procedural fairness. The employer had argued successfully on first review that it was denied procedural fairness before the adjudicator. An issue had arisen in the hearing as to the core duties assigned to the employee. Also statistical evidence had been used by the employer to demonstrate that the employee had failed to meet her targets.

The first review determined that there had been such a breach of procedural fairness as (1) denying the employer fairness in making its determination of the scope of her job duties and (2) in finding that the employer’s use of statistical evidence of the employee’s shortcomings to be inadequate to show just cause. The first level review had found that there was a lack of a “complete and accurate representation” of the employee’s performance due to this unfairness and also led to the finding of “no culminating incident”, which led to the unfair finding of no just cause:

The parties must have a reasonable opportunity to respond to any new ground on which they have not made representations. In this respect, I agree the parties should have been made aware that the scope of the core duties of the TSR role and the statistical evidentiary basis relied upon by the Applicant to demonstrate the Respondent had consistently failed to meet her targets was in issue. These concerns were not put in issue by the parties, but nevertheless formed the basis upon which the Adjudicator found there was no culminating incident, owing to the lack of a complete and accurate representation of the Respondent’s performance, thereby allowing her to conclude the dismissal of the Respondent was unjust.

This same issue of procedural fairness was raised in Federal Court of Appeal decision in 2021. ² The employer manual required that the teacher be advised of any complaints and be allowed the opportunity to respond. This process was not followed. This conduct was found on first review to be a violation of due process, as was confirmed on appeal. ³

This issue was also considered in a Federal Court of Appeal decision. ⁴ Loomis v Fick FCA] The assertions made by the appellant were as follows:

1. The adjudicator refused to hear all of his evidence at the hearing;
2. A telephone hearing was held to obtain further evidence on some earlier questions which had been raised by the adjudicator. The adjudicator had limited the scope of the call for this purpose. It lasted for five hours.
3. Fick was limited to testimony within the boundaries set for the purposes of the call;

The Federal Court of Appeal noted that the statute allowed the adjudicator to determine the procedure to be followed, provided that the parties were given full opportunity to be heard. Prior to this telephone call, the parties had submitted two rounds of evidence after which the adjudicator allowed further evidence on some issues orally  and with cross-examination. No breach of procedural fairness was found.