This is a very tricky subject. All persons have a constitutional right to privacy, dignity and security of person. These rights must be weighed against an employer’s right to protect its property.

Our courts have held that a refusal by an employee to submit to a search in the absence of an acceptable explanation may give rise a reasonable suspicion that an employee is stealing.[i]

For this reason, the sample contract of employment included together with this manual makes is clear that the employee is under a contractual obligation to submit to searches and the failure to do so will constitute a breach of the contract of employment which may result in dismissal.

Consequently, subject to proper contractual provisions being in place, you may request your domestic worker to subject himself/herself to a search. You may not however forcefully conduct a search where a domestic worker refuses!

Where a domestic worker refuses to undergo a search, you should advise him/her of the contractual undertaking and admonish him/her that refusing to subject to a search may result in disciplinary action including dismissal.

If your domestic worker persists with the refusal to be searched, the disciplinary process set out in Chapter 8 above should be followed. This will include putting the allegation to the domestic worker that the refusal to be searched constitutes a breach of the employment contract and has resulted in a reasonable suspicion that he/she is committing theft. The domestic worker must also be afforded the opportunity to explain why he/she is refusing to be searched.

After considering the explanation and the other factors listed in Chapter 8 (length of service, previous disciplinary record, etc…), a determination can made whether to dismiss the domestic worker.

The following constitute useful guidelines when conducting a search of your domestic worker

• a domestic worker must always be requested to subject himself/herself to a search;

• under no circumstances should forced searches be conducted on domestic workers. If necessary the police / a security company can be called in order to prevent possible theft when the employer suspects that the domestic worker is attempting to remove property unlawfully;

• both the request for the search and the search itself should take place in the presence of a witness (to the extent possible);

• the search of a domestic worker, where consent is granted, should be conducted by someone who is the same sex as the domestic worker;

• a search of property should take place with a sufficient degree of care in order to ensure that the domestic worker’s property is not damaged;

• the domestic worker should not be requested to remove any clothing that would leave him/her exposed or otherwise result in inappropriate physical contact.

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[i] See SA Commercial Catering & Allied Workers Union & others v King William’s Town Fast Food CC t/a Chicken Licken (1996) 17 ILJ 401 (IC)