Searching an Employee

Most employees understand that when they are at work, they are largely subject to the scrutiny of their employers. Workers accept that supervisors will review their work, managers will measure their productivity, and their employer might use technology to monitor their communications. However, it is important for workers to know that under the law, they do have a right to some privacy, even when they are at work. In Australia, employers do not automatically have the right to search an employee, their belongings, work desk or locker. For an employer to have the right to conduct a search, they must involve the police, have a warrant, or otherwise have a contractual right under a written workplace policy. This article looks at an employer’s rights when searching an employee in the workplace.

Theft in the workplace

Employee theft and fraud is a substantial cost and risk for Australian employers. Workplace theft can involve the stealing of cash, misappropriation of electronic funds, workplace equipment or supplies, or the misuse of valuable data or intellectual property. Employee theft is considered serious misconduct under the Fair Work Act 2009 (the Act), which can be sufficient reason to summarily dismiss an employee. However, employers need to establish evidence of the crime through a valid search before using it as grounds for dismissal.

Workplace policies

In most circumstances, employers have the right to search company property, even if the property has been assigned to a worker for their use (such as a laptop or mobile telephone). As a general rule, the employee would not be able to establish a reasonable expectation of privacy in relation to property that is owned by their employer. However, the rights of an employer to access an employee’s personal device without a court order remains largely untested in the courts.

Certainly, there is no provision in the Act that gives employers the right to search an employee or their personal belongings. Of course, employees will often voluntarily agree to submit their person, belongings or devices to a search by their employers, particularly if they have nothing to hide, but these employees would also be within their rights to refuse to submit to such an invasion of their privacy. However, before refusing a search, the employee should ensure that they are familiar with their employer’s workplace policies. The employers may have obtained the right to search personal property brought into the workplace by including this provision in its workplace policies and procedures. For such a policy to be effective, it should:

• make it clear to employees when they are hired that the right to search personal property is a condition of employment or continued employment
• have a legitimate ground to conduct the search, such as looking for stolen company property or checking on a Work Health and Safety concern
• conduct the search in a discrete and reasonable manner designed to protect the employee from embarrassment.

If a worker is aware of this policy and continues the employment in full knowledge of this provision, they have effectively agreed to give the employer the right to conduct a search according to the terms of the policy.

Even when the employer has the right to conduct a search, the employee can still refuse to comply with a search of their personal belongings. But in that case, the employer can follow their own written policy and find this refusal to be grounds for disciplinary proceedings based on refusal to comply with a reasonable management direction.

Case study

The Australian courts have repeatedly accepted an employer’s right to search an employee’s bag or locker in limited circumstances. As the Tasmanian Industrial Commission established in Construction, Forestry, Mining and Energy Union, Tasmanian Branch and Incat Tasmania Pty Ltd[2002], it was reasonable for Incat to create a workplace policy that made it compulsory for employees to submit their bags for inspection as they left work. Under this policy, workers were threatened with instant dismissal if they refuse to submit to the search. Crucially, the Commission found that Incat was not required to have actual evidence of theft, or even a reasonable suspicion against any particular individual, to implement this policy. In addition, the existence of this policy was found to be consistent with the terms of the enterprise agreement which was silent as to the subject of searching employee’s belongings.

Employers can reduce their liability in cases of unfair dismissal by reporting theft by employees to the police and seeking legal advice from Go To Court Lawyers. Our experienced solicitors can advise on reasonable investigative procedures and walk you through the options to manage legal risk in your business. Phone 1300 636 846 for any legal advice.