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Rights of search – Getting it down pat

Rights of search – Getting it down pat

We are increasingly receiving questions from clients about their rights in relation to searching an employee’s personal property (including lockers and personal vehicles). Theft is an example of serious misconduct under the Fair Work Act 2009 (the Act) and an unfortunate reality for many businesses. Whether theft from the employer justifies dismissal of an employee may vary depending on the circumstances. It’s prudent for employers to exercise caution and protect the business by having rights of search reinforced in employment handbooks or contracts.

Generally speaking, within the Act there are no specific provisions which set out the rights of search by the employer; however businesses can ask for these to be included in their policies and procedures. The right policies and procedures will give business owners the broadest range of contractual discretion that affects decisions made in the company’s best interests. Similar to other contractual provisions designed to protect a business, a best practice approach would be making the rights of search a condition of the employee’s employment upon commencement with the business or at a time where employment documentation is being updated to keep in line with legislative changes and best practice. By having this request outlined in your employment documentation, it is important to note that this reserves the right for the employer to request to search employee personal property only.

Along with implementing right of search, processes need to be put in place when theft occurs in the workplace. Although businesses operate differently from one another, you should consider incorporating interviews with employees during the investigation as well as looking into what internal controls are available to minimise theft. Examples of internal controls include how an employee can enter or exit the place of work, installing monitoring systems and CCTV surveillance or ways to minimise the amount of cash handling required on a day to day basis.

You should be aware that an employee may refuse your request to search their personal belongings which could mean the employer will be at risk of future claims if the employee’s refusal is not acknowledged. To remedy this, you may wish to specify in your policy that by refusing the employer the right to search employees property it will leave grounds for disciplinary proceedings based on the employee refusing to comply with a reasonable management instruction or direction including failing to comply with their obligations under the applicable policy or procedure.

In order to reduce your risk for any potential claims for unfair dismissal, it is recommended that you should always report cases of theft to the police and consult with our Advice Team, who will be able to walk you through the appropriate way to manage this risk in your business.

If you have any queries relating to rights of search or would like assistance putting in place appropriate practices and documentation, please contact Employsure on 1300 651 415.

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