Q. Our company has 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 would appear the thefts are being perpetrated by company staff. In response, the company wants to introduce random bag checks and body searches. The company wants to introduce a company policy that gives management the right to search bags and lockers. Some senior managers doubt the legality of employee searches suggesting 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 the employee’s contract of employment. In the absence of the employee’s consent, searching an employee could render the employer liable for assault. As far as lockers are concerned, if the locker is granted for the employee’s use, to the exclusion of all other persons, the employer has no unqualified right to open the locker.

Courts and tribunals have generally determined that while it is reasonable for the 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 the employer wants to exercise a right to carry out any search, the best method of doing this is by making this a condition of the employee's contract of employment, or as a company policy. If, before commencing employment, it was made quite 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.