As we approach the holidays, you might be lucky enough to receive a gift, whether that be from your employer, clients or fellow colleagues. However, should you accept it or politely decline? Receiving gifts at work may land you in trouble so how should you respond? Here are some tips to assist.
Step #1 – Consider if it is actually ‘a gift’ versus ‘a perk/benefit’
In a recent employment matter, Snedden Hall & Gallop successfully argued that a ticket for a local Canberra rugby game, as accepted by an employee, was not considered ‘a gift’ but ‘a perk/ benefit’ of their position. This meant that the allegation of employee misconduct could not be substantiated.
So, what’s the difference between ‘a gift’ and ‘a perk/benefit’?
Generally speaking, gifts refer to physical items with a monetary value including: cash, goods, services or vouchers for goods and services. While a perk or benefit could be: a prize, special offer or customer-specific discounts on goods, services or other assets.
In the case of the sporting ticket, the employee was invited by a fellow business to attend their VIP box outside of business hours. Arguably, the invitation to network at the event was an exclusive offer and they were expected to mingle with fellow professionals because of the employee’s position. Thus, viewing the game and receiving the physical ticket was contended to be a subsidiary “perk” and not a “gift”.
In the alternative, the provision of the ticket constituted a form of “hospitality”, that is, an invitation to a work-related sporting or cultural event where the costs were met wholly or substantially by the host.
Step #2 – Locate your work policies/ guidelines
In the private sector, an employee’s reporting obligations of gifts and perks will differ. The best place to start when attempting to confirm your rights is by checking any contractual agreement, work policies or guidelines on the subject.
Often an employer will require you to either disclose the gift or reject it, noting that through your acceptance, this may result in a perceived or actual conflict of interest. The intention behind the gift may also be deemed as a form of bribery or compel an obligation to reciprocate.
In the Australian Public Service, there are strict guidelines on when gifts are needing to be reported as accepting them may jeopardise public confidence in the person or service more broadly. Different Departments have separate or specific reporting requirements (e.g. timing on reporting, disclosure requirements, etc.). However, if a gift is valued in excess of $100AUD, then usually this is required to be reported. Even where you may elect to decline a gift, this may still need to be disclosed.
Step #3 – Contemplate any public perception/ external authorities
One of the most recent examples of employees accepting work gifts were the four senior employees of Australia Post, including former Chief Executive Officer, Christine Holgate. The gifts in question were Cartier watches in recognition of their work. Yet, the details behind the approval of the decision were not clear, such that Ms Holgate was brought before Senate Estimates and a report was commissioned thereafter.
Noting that Australia Post is wholly owned by the Australian Government, there was a high degree of public scrutiny behind the gifts, as would be the case with public servants largely. Consequently, there is a necessity for gifts to be thoroughly considered before accepting, if at all.
Other external authorities may also regulate your acceptance of gifts. In the legal industry, solicitors may be able to accept gifts, but the following factors should be considered: the gift’s modesty, source, nature, size and proportionality to the services provided. One should consider the gift’s ability to coerce, influence and/or conflict in the person and decline where it has the potential to do so.
Step #4 – Seek legal advice
Usually the benefactor – your employer, client or colleague – will provide a gift as a token of their appreciation. Yet, even if this is the case, you still may be alleged to have engaged in misconduct. This could lead to a sanction including but not limited to, termination of employment.
Accordingly, it is best to consider steps #1-#3 before accepting any gift. And, if in doubt about your obligations, it is recommended that you check. Please contact the Snedden Hall & Gallop employment team so that we may provide custom legal advice relevant to your circumstances – whether you are the employee or employer.