Applying the Principle of Proportionality in Employment and Labour Law Contexts

49 Pages Posted: 21 Jul 2013 Last revised: 15 Apr 2015

See all articles by Pnina Alon-Shenker

Pnina Alon-Shenker

Ryerson University - Ted Rogers School of Management

Guy Davidov

Hebrew University of Jerusalem - Faculty of Law

Date Written: July 19, 2013

Abstract

The principle of proportionality, which is designed to limit abuse of power and infringement of human rights by governments, 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 s. 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 examines whether the principle of proportionality extends or should extend to the private sphere and impose some limitations on employers and trade unions when they exert as much control over an individual’s life as governments. 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. First, it explains why a higher standard of behaviour is required in employment relationships as opposed to other contracts. Second, it defends the use of proportionality stressing its legal and analytical merits. Lastly, it demonstrates that the application of proportionality fits within contemporary legal doctrines and advances legal coherence. The article therefore advocates a more explicit use and structured application of the three-stage proportionality test in various employment and labour law contexts.

The findings of this article could thus contribute to the development of labour and employment law; they are also highly relevant to the more general discussion about the applicability of the principle of proportionality outside the boundaries of public law.

This is an unedited version of the manuscript, not to be cited without permission.

Note: This is an unedited version of the manuscript, not to be cited without permission.

Keywords: labour law, employment law, proportionality

Suggested Citation

Alon-Shenker, Pnina and Davidov, Guy, Applying the Principle of Proportionality in Employment and Labour Law Contexts (July 19, 2013). 59:2 (2013) McGill Law Journal 375. Available at SSRN: https://ssrn.com/abstract=2295950

Pnina Alon-Shenker (Contact Author)

Ryerson University - Ted Rogers School of Management ( email )

350 Victoria Street
Toronto, Ontario M5B 2K3
Canada

Guy Davidov

Hebrew University of Jerusalem - Faculty of Law ( email )

Mt. Scopus
Jerusalem, 91905
Israel

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