Area of Law: Employment Law
Answer # 1682
Body search of an employee suspected of theftRegion: Ontario Answer # 1682
The Canadian Charter of Rights and Freedoms protects everyone from unreasonable or unauthorized search and seizure by government authorities, such as the police. In the workplace, however, the Charter does not often apply to the private employer-employee relationship.
Other laws, such as the Canada Labour Code, Canadian Human Rights Code, provincial human rights codes and collective agreements between labour and management may each affect the issue of whether employee searches are reasonable or whether evidence they uncover can be used against the employee.
Generally, employers have no greater right than other citizens to search someone’s personal belongings or body without justification or permission. An attempt to search someone’s body without a reasonable excuse could be considered an assault under the law. A search of a worker’s car or gym bag without permission could be considered trespassing. An employee, however, cannot prevent a search of any property that belongs to the employer, such as a work desk, computer or locker.
While an employer usually cannot search a person’s body, it may be quite reasonable for a manager who suspects theft, substance abuse or some other misdeed on the job to ask the employee for his or her co-operation in emptying pockets, purses or knapsacks. The employee does not have to comply, but the employer would be free to draw conclusions based on the refusal. Even with permission, a search of an employee’s clothed body should always be done by someone of the same sex to avoid later allegations of improper touching. Also, any search of a person or property by an employer should be done with one or more witnesses on hand. Where criminal behaviour is suspected, an employer would be wise to contact the police and delay any searches until the proper authorities are on site.
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