To many the workplace Secret Santa or Kris Kringle is intended as good natured fun but sometimes the fun is at the expense of others and things go wrong. When the line between work and play is unclear, situations can become uncomfortable and people's behaviour can be highly inappropriate.
As the gift giving is anonymous, it may be seen by employees as an opportunity to have a joke at a workmate's expense or send a hurtful message to their colleague.
But that joke or hurtful gift could backfire and ultimately humiliate, harass or discriminate against the recipient. This could be the deodorant given to the colleague with an odour problem or the low fat diet cookbook if someone is overweight.
Being associated with the workplace and condoned by employers means that any specific internal codes of conduct or policies relating to appropriate behaviour in the workplace still apply, so make sure you are familiar with these.
Anyone who is upset or offended by a present can address it with the colleague involved first, if that person is identifiable and assuming the recipient feels comfortable. The next step is to make a complaint to management as per workplace policy so it can be investigated and the staff members disciplined, if appropriate.
Staff members should consider seeking independent legal advice if the complaint remains uninvestigated.
If the present is a component of ongoing and repeated unreasonable behaviour, it could be workplace bullying which the Fair Work Act provides an avenue to address and put a stop to the bullying.
Complaints can be made to the Fair Work Commission, with workplace management and safety addressed, rather than providing compensation for victims.
To stop the bullying, the commission can make orders to do things like:
- separate the parties involved;
- direct employees to be moved to another work location;
- order employees to attend training on workplace bullying and behaviour;
- order employers to implement better workplace policies.
Some presents may have a discriminatory nature - based on things like race, age, sex, marital status, sexual orientation or religion. For example, the walking stick given to the eldest person in the office.
Workers who think they've been discriminated against need to prove two things:
- that they've been disadvantaged or harmed by the way in which they have been treated, and
- that they've been treated differently than others for a discriminatory reason.
A one-off incident like an offensive gift may also be unlawful, whether on grounds of race or its sexual nature (the BBQ apron with male anatomy on it).
Complaints about discrimination and harassment can be made to the state-based anti-discrimination commissions or the Australian Human Rights Commission.
Everyone has the right to feel safe and respected in the workplace, even when receiving a Secret Santa gift.
So before you wrap that nasty Kris Kringle spare a thought for your colleague and remember the true Christmas spirit of kindness and generosity.
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Alison and Jillian Barrett are both principals at Maurice Blackburn Lawyers. The Queensland sisters are experienced lawyers and passionate social justice campaigners. Alison juggles motherhood, as well as heading up a major legal practice area. Younger sister Jillian also leads a team of lawyers and sports a double degree in Law and Journalism.
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