Can you search employees' bags and lockers?

Can you search employees
By Paul Munro on 30 August 2016 Are employers entitled to search employees' bags and lockers?

This question was recently sent to our Ask an Expert service.
Q Our company has suffered a spate of thefts of company-owned property and articles from employee lockers. After an internal investigation – and also one by a private investigator  – it appears the thefts are being perpetrated by company staff. 

In response, we want to introduce a policy that gives management the right to search bags and lockers. Some senior managers doubt the legality of employee searches and suggest it may be an invasion of privacy or a breach of civil rights.

Can we legally impose a policy which gives the company the right to search employees’ bags and lockers?
A There is no general right for an employer to search bags, parcels, and articles of employees at any time, unless otherwise provided by an employee’s contract of employment. In the absence of the employee’s consent, searching an employee could render the employer liable for assault. If a locker is granted for an employee’s use, to the exclusion of all other persons, an employer has no unqualified right to open the locker.
Courts and tribunals have generally determined that while it is reasonable for an employer to take steps to prevent theft in the workplace, it is not open to management to implement a bag search policy without consultation or on such terms as management alone deems appropriate. See Construction, Forestry, Mining and Energy Union, Tasmanian Branch and Incat Tasmania Pty Ltd [2002] TIC T10377 .

If an employer wants to exercise a right to carry out any search, the best method of doing this is to make it a condition of an employee's contract of employment, or as a company policy. If an employee consents to such a condition of employment, then such action may be appropriate.

The process

Industrial tribunals have generally approved of guidelines to deal with the difficulties that arise when security measures are taken by an employer concerning an employee suspected of dishonest practices.

Generally, such guidelines cover staff interviews, transfer of staff, cash shortages and security checks of bags, parcels and lockers. Although these guidelines were originally drafted specifically for the retail industry, over the years industrial courts and tribunals have usually applied them in matters involving alleged dishonest behaviour by an employee.

Staff interviews

When an employer is trying to discover whether an offence or breach of company security has been committed, the employer is entitled to question any employee, whether suspected or not, from whom it is thought useful information may be obtained. As soon as an employer has reasonable grounds for suspicion that an employee has committed an offence, it will ask the employee whether they agree to be questioned and, if such agreement is reached, will caution the employee before putting any questions, or further questions, relating to that offence.

A caution could be in the following terms: ‘You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given as evidence’. After giving this caution, the employee's attention should be drawn to their right to ask for a witness, of their own choice, during the course of the interview.

Where a security investigation involves an employee remaining at the employer's premises, or elsewhere at the employer's direction, outside of the employee's ordinary working time, the employee should be paid overtime, in accordance with the award or agreement. As a general principle, employees who have been interviewed with regard to a security matter should not be transferred to another work place, have a change of duties or sustain any disciplinary action until the security investigation has been completed, unless there are mitigating circumstances to do so.

Security checks of bags, parcels and/or lockers

Employers are entitled to conduct routine security checks of staff bags and/or parcels at points of exit and entry used by staff. Individual security checks of bags, parcels and/or lockers should not take place unless the employee concerned is present, or alternatively the employee has given permission for such a search to take place in their absence. It would be preferable if the employee is requested to open their bag to search for contents, rather than a member of  security physically searching the bag.

Where a search or check is to take place in an employee's absence, the employee may nominate some other responsible employee to be present during the proposed search or check.

The bottom line: While it is reasonable for employers to takes measures to protect company property, they do not have a unilateral right to search employee property. The right to search employee property should only occur after consultation with employees and implementation of a reasonable policy based on the above guidelines.

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