Following the report of a discovery of a stash of spiced mini sausages, management at a meat processing plant arranged for a surprise employee search.
The union grieved the search, calling it an abuse of management rights and a violation of the collective agreement.
While reports of past practices indicated that it was not uncommon for workers and managers to snack on meat treats while at work, the employer had begun to crack down on the practice. When the employer reissued plant rules in April 2009, it was made very clear that employees were not to steal from the employer.
In addition, the employer posted a discipline procedure establishing that it was an offence to refuse to comply with a security inspection. It was again emphasized that theft was a discharge offence.
On October 9, 2009 a plant employee was searched and subsequently fired for attempting to steal a package of spiced mini sausages called pepperettes.
Stash of pepperettes
About three weeks later, a worker in the plant’s continuous wiener operation (CWO) reported to her supervisor that she had discovered several packs of pepperettes stashed in a table near her workstation. As there was no obvious operational reason for the pepperettes to be in the CWO, the employee surmised that someone was attempting to steal them.
When pressed by her supervisor, the worker fingered another employee as the most likely suspect. However, in view of the fact that there was a history of acrimony between the worker and the person she indicated as a suspect, the employer planned to execute a “random” search of employees leaving the plant at the end of a particular shift. This approach was adopted both to insulate the accuser as the source of the suspicion and to ensure that the named suspect was not unfairly targeted.
The employer planned other safeguards too. Employees would be asked to submit their bags to security personnel for inspection. Supervisors were also to be present. Employees would be asked to open their bags and permit security to look in. Neither security nor the managers present were to touch the employees or their bags or the contents of their bags though employees might be asked to move articles within their bags. Employees refusing to submit would not be detained but would be identified and dealt with at a later time.
Prior to the search, the employer informed the union of its belief that a theft was about to take place and of its intent to conduct a random search.
The search was conducted; however, no one was found holding the pepperettes.
Search too invasive
Before the Arbitrator, the union took the position that the search was far too invasive based on the information that the employer had. Inquiries could have been made instead of subjecting the entire shift to a bag inspection. The employer had no inherent contractual right to conduct such a search and, to the extent that management rights might contemplate such a search, it was first necessary to strike an appropriate balance between employer and employee interests. That wasn’t done here the union said and the searches, therefore, were unreasonable.
The employer argued that it was within its rights to conduct the search. It had established and communicated clear rules regarding theft and it had credible information suggesting that a theft was imminent. No one was unreasonably targeted and care was taken to ensure that the search was conducted in a manner that was minimally invasive, the employer said.
Implied authority based on past practice
The search was not unreasonable, the Arbitrator said. While noting that numerous arbitral decisions support the view of employee privacy as a right that must be “jealously” guarded, employers have legitimate interests to protect if theft of company property becomes a problem. Searches conducted in such circumstances may be warranted and the authority to conduct them may rely on either express or even implied authority based on past practice.
“[T]he cases referred to me support the proposition that the authority of an employer to conduct searches of employee belongings to protect itself from theft may be implied, if not express, from a management’s rights clause together with an established policy or practice, communicated to employees, reserving the employer’s authority to conduct these searches.”
The employer had an explicit policy prohibiting theft and a policy permitting searches, which it had communicated to employees. “Furthermore, it has established that it has in the past conducted searches of employees where a particular theft has been suspected. The evidence did establish that this was the first time that the employer searched an entire shift. However, it did so because it had probative information that a theft might be committed on the shift in question … In these circumstances I am unable to find that the administration of the searches constituted an unreasonable exercise of the Employer’s authority to conduct reasonable searches to protect itself from theft.”
The grievance was dismissed.
