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Santa: Not a fair and reasonable employer

Updated: Dec 8, 2020



With Christmas day looming, I wanted to spend some time analysing whether Santa's workshop would comply with New Zealand employment laws. Now, I understand that Santa has outsourced his factory to one of the only places which is not largely inhabited: the North Pole. In my view, this is wholly unethical as the North Pole is one of the only places without rigorous employment laws. However, the fact remains that due to the fact that Santa's factory is not operating within New Zealand, he is not subjected to our employment laws.


But ... what if he was?


Are Santa's Elves Employees?


There is no suggestion that Santa's elves receive payment for the work they complete. This means that they may not be considered "employees", in terms of the Employment Relations Act 2000. In a rather analogous situation, WorkSafe has recently declared that it has "no jurisdiction to intervene" at Gloriavale, as the workers are "not employees."


In response Kathryn Dalziel, Employment Lawyer, stated: "[I'm] not entirely convinced they aren't employees because you have got to look at the real nature of the relationship." I agree with Ms Dalziel, and in this situation, the real nature of the relationship between Santa and his Elves appears to be of employee and employer. It would be unfathomable in New Zealand for a factory to claim that all of its workers are volunteers. Santa assigns the work to his Elves, he provides their uniforms, and he supplies the tools and equipment required for them to perform their role.


Are Santa's Elves receiving their Employment Entitlements?


Let's presume that the Elves are employees, they would be entitled to receive at least the minimum wage for every hour they work. They are also entitled to be treated fairly and reasonably, to receive annual leave and sick leave entitlements, and to work in a healthy and safe working environment.


I understand that Santa's elves work all year round to ensure that all the children on this planet have gifts on Christmas morning. While it is not clear, I would imagine that his elves would be required to work through their breaks, over their weekends, and in excessive hours per week to achieve this task. Santa is legally required to keep time and wage records, so this information should be readily accessible, should the Elves wish to bring a claim.


In considering the excessive number of hours the Elves are required to work, I would be concerned that the Elves would be at risk of suffering from burnout, or other stress-related conditions. There certainly could be a claim that Santa was breaching the implied duty to take all reasonable care not to cause the Elves physical or psychological injury, or further injury, by reason of the volume, character, nature of circumstances of the work permitted.


I would additionally be concerned that his Elves are not able to take annual leave. In accordance with the Holidays Act 2003, an employer must allow an employee to take annual holidays within 12 months after the date on which the employee’s entitlement to the holidays arose, and if an employee elects to do so, the employer must allow the employee to take at least 2 weeks of his or her annual holidays entitlement in a continuous period.


It sounds to me like the Elves need to unionise ...


Is Santa adhering to the Health and Safety at Work Act 2015?


I am also concerned that Santa's may not be taking his obligations under the Health and Safety at Work Act 2015 seriously. Santa's elves are required to work in his workshop creating various types of gifts. I ask Santa; where is the requirement for your elves to wear suitable Personal Protection Equipment ("PPE")? This would potentially include a protective helmet, eyewear, protective boots, safety gloves, ear protection, dust mask and a hi-vis vest.


Does Santa's Workshop have a Bullying Culture?


We all know the song:


All of the other reindeer

Used to laugh and call him names

They never let poor Rudolph

Join in any reindeer games


While I appreciate that the other reindeer turned to love him, I am concerned that Santa may be turning a blind eye to the bullying that occurs at his workshop. This is evident by the known song "Rudolf the Red-nosed Reindeer", where the bullying culture is spoken about with jest; as a comical addition to the story.


Personal Liability


Santa seemingly operates as a sole-trader, "Mr Santa Claus". In New Zealand, many employers are limited liability structures, which means that the owner cannot be personally responsible. However, Santa's operating structure would attract significant risk and he would be personally required to pay any remedies awarded to his employees. If Santa could not meet those costs, he may need to consider selling all his assets, and potentially declaring bankruptcy. Mrs Claus wouldn't be happy about that!


Conclusion


If Santa established his business in New Zealand, he would be at serious risk of breaching many of our employment laws. This would result in a significant monetary claim; perhaps one of the largest in New Zealand's history. It would also likely bankrupt Santa, and he would likely be unable to continue to operate as the Santa Claus we all know and love.


But ... That doesn't make it okay.


Santa, your employment practices are unethical.




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