Applying the principle of proportionality in employment and labour law contexts.

• Author: Alon-Shenker, Pnina
• Position: Canada

The principle of proportionality, which is designed to limit abuse of power and infringement of human rights by governments and legislatures, has become a fundamental and binding legal principle in the jurisprudence of many countries. Ever since the seminal R. v. Oakes decision, when the Supreme Court of Canada interpreted section 1 of the Canadian Charter of Rights and Freedoms as entailing a three-step proportionality test, proportionality has become an important pillar of Canadian law. This article argues that the principle of proportionality actually extends, and should extend, to the private sphere--imposing limitations on employers and trade unions when using their powers. It first argues, at a descriptive level, that proportionality already plays a significant role (although often not explicitly) in various Canadian labour and employment law contexts, a role not sufficiently acknowledged thus far. It then turns to the normative level and explores the justifications for extending the application of proportionality to the private sphere and more specifically to the employment relationship. The article advocates a more explicit use and a structured application of the three-stage proportionality test in various employment and labour law contexts.

Le principe de proportionnalite, concu pour limiter les abus de pouvoir et les violations des droits de l'homme par les gouvernements et les legislatures, est devenu un principe juridique fondamental et contraignant adopte par la jurisprudence de plusieurs pays. Depuis l'arret de principe R. v. Oakes, au sein duquel la Cour supreme du Canada a estime que l'article 1 de la Charte canadienne des droits et libertes entrainait un test de la proportionnalite en trois etapes, la proportionnalite est devenue un pilier important du droit canadien. Cet article soutient que le principe de proportionnalite s'etend, et devrait s'etendre, a la sphere privee--imposant certaines limitations aux employeurs et aux syndicats lorsqu'ils font l'usage de leurs pouvoirs. Adoptant dans un premier temps un point de vue descriptif, il avance que la proportionnalite joue deja un role significatif (bien que pas toujours explicite) dans divers contextes relies au droit du travail et de l'emploi au Canada, un role pas suffisamment reconnu jusqu'a present. Il se place ensuite sur un plan normatif et explore les raisons justifiant d'etendre l'application de la proportionnalite a la sphere privee, et plus specifiquement aux relations d'emploi. L'article preconise un usage plus explicite et une application plus structuree du test de proportionnalite en trois etapes dans divers contextes relies aux droits du travail et de l'emploi.

Introduction I. Proportionality in Canadian Employment and Labour Contexts A. Introduction B. Explicit Use 1. Disciplinary Procedure and Just Cause 2. Privacy in the Workplace C. Implicit Use 1. Introduction 2. Restrictive Covenants 3. Discrimination 4. Picketing 5. Unfair Labour Practice II. Justifications for Applying Proportionality in Labour and Employment Law A. Introduction B. A Higher Standard of Bella dour is Nonnatively Justified C. Proportionality is an Appropriate Choice of a Higher Standard of Behaviour D. Applying die Proportionality Test is Doctrinally Possible and Will Improve Coherence III. Additional Applications Conclusion Introduction

The principle of proportionality is designed to limit abuse of power and infringement of human rights and freedoms by governments and other public officials to the minimum necessary in the circumstances. As a philosophical notion, proportionality may be traced back to the ancient Golden Rule of "that which is hateful to you, do not do to your fellow." (1) As a legal principle, it originated in the nineteenth century in Prussian administrative law, in which it imposed constraints on police powers that infringed an individual's liberty or property. (2) Throughout the years, the principle of proportionality expanded and migrated to other European countries, (3) where it is now a central and binding public law principle, (4) and to other jurisdictions, including Canada, New Zealand, Australia, South Africa, Hong Kong, India, and countries in South America. (5) Furthermore, it has become part of many constitutional and international documents. (6) It is also relevant in other contexts, such as international law (e.g., the doctrine of just war, the laws of self-defence, and international human rights law) (7) and criminal law (e.g., punishment should be proportional to the offence). (8)

The principle of proportionality was first recognized in Canadian constitutional law in R. v. Oakes, (9) in which the Supreme Court of Canada interpreted section 1 of the Canadian Charter of Rights and Freedoms, (10) which allows the government to limit constitutional rights and freedoms to a reasonable extent, (11) as entailing a proportionality test. Similar to other jurisdictions, (12) the Court established a three-stage proportionality test that examines the relationship between the measure adopted by the government to achieve a legitimate objective and the legitimate objective itself. First, the measure adopted by the government must be rationally connected to the justifiable objective it aims to achieve. Second, the government must select the measure that is the least harmful to, or minimally impairing of, the right or freedom in question, but similarly achieves the objective. Third, there must be proportionality stricto senso between the harms caused by the measure and the benefits of achieving the important objective--"[t]he more severe the deleterious effects of a measure, the more important the objective must be." (13)

In a neo-liberal capitalist era, employers often exert as much control over an individual's life as governments do. Should the application of the principle of proportionality extend to the private sphere and impose limitations on employers' actions? The question is not about constitutional cases; the constitutional analysis undoubtedly involves a proportionality analysis in labour and employment contexts, as in any other context. The question here is rather about non-constitutional cases, involving private sector employers: Can (and should) we demand that such employers conform to the requirements of proportionality when making decisions affecting employees? Can (and should) we place similar constraints on labour unions making decisions that affect employers and the public at large? A number of scholars have recently explored this possibility in other jurisdictions and advocated the use of proportionality in some labour and employment contexts. (14) The three-stage test appears to offer a useful structure for discretionary decision making, ensuring that decisions are both rational and considerate, and preventing abuse of power by both employers and unions. (15)

Geoffrey England has examined the impact of the Charter on employment contract law, including the application of proportionality in "just cause" cases. (16) But a complete account of the role that proportionality plays or should play in Canadian employment and labour law has not yet been offered. In this article, we wish to advance two main arguments: First, a survey of employment and labour decisions by courts and other adjudicators in Canada reveals that the principle of proportionality is already being used in certain contexts. Sometimes the application is explicit, even if incomplete (i.e., does not closely follow all three stages of the Oakes proportionality test). But more often, the application is implicit. That is, courts and other adjudicators analyze different situations using tests akin to the Oakes proportionality test without an explicit reference to proportionality. Second, we argue that this trend is normatively justified and that a more explicit and structured use of the proportionality test should be advanced in various employment and labour spheres.

The article proceeds as follows: Part I exposes the contexts in which proportionality is currently used in Canadian employment and labour law decisions. We argue at a descriptive level that proportionality already plays a major role--although often not explicitly--in Canadian labour and employment law. Part II turns to the normative level and explores the justifications for extending the application of proportionality to the private sphere, and more specifically to the employment relationship. First, we explain why a higher standard of behaviour is required in employment relationships as opposed to other contracts. Second, we defend the use of proportionality in these contexts, stressing its legal and analytical merits. Third, we demonstrate that the application of proportionality fits within contemporary legal doctrine and advances legal coherence. We therefore advocate a more explicit use and structured application of the three-stage proportionality test in the contexts mentioned above. Part III proposes additional applications of proportionality in the labour context, showing how this principle may provide a more balanced approach to the resolution of contemporary labour relations conflicts in Canada, limiting the use of excessive power by both employers and trade unions.

1. Proportionality in Canadian Employment and Labour Contexts

   1. Introduction

      The principle of proportionality is used both explicitly and implicitly in various employment and labour law decisions. In some cases, the Charter, including section 1 and the principle of proportionality, is directly relevant in an employment setting. At times, a governmental action or piece of legislation infringes the rights and freedoms of employees, trade unions, or employers guaranteed under the Charter. (17) Setting aside these constitutional cases, there are also scenarios in which a private dispute arising between an employer and an employee, or an employer and a trade union, is analyzed within a proportionality framework...