Can you search employee bags/lockers?

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Can you search employee bags/lockers?

Can you implement a policy that enables management to randomly search employees' bags and lockers?

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Can we implement a policy that enables us to randomly search employees' bags and lockers?

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Q Our company recently suffered a spate of thefts of company-owned property and articles from employee lockers. Having conducted our own internal investigation, and also that of a private investigator, it seems the thefts are being perpetrated by company staff. In response, the company wants to introduce a policy that gives management the right to randomly search bags and lockers.

Some senior managers doubt the legality of employee searches and have suggested 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 an employee’s bags and locker?

A Employers should be aware there is no general right of search for an employer to search bags, parcels and articles of employees at any time, unless otherwise provided by an employee’s contract of employment. Without an employee’s consent, searching an employee could render an employer liable for assault. As far as lockers are concerned, if the 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 simply because 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 by making it a condition of an employee's contract of employment, or as a company policy. If, before commencing employment, it was made clear to an employee, preferably in writing, that one of the conditions of employment was the employer's permission, at any time, to search an employee's belongings or their locker, and if the employee consented to such conditions, then such action may be appropriate.

The process


Industrial tribunals have generally approved of guidelines to deal with the difficulty that arises where 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, to obtain information. As soon as an employer has reasonable grounds for suspicion that an employee has committed an offence, it can 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, an employee's attention should be drawn to his/her 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 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 point 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.

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

The bottom line: While it is reasonable for an employer to takes measures to protect company property, an employer does 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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