Extended Time for Personal Grievance Claims | Window for Sexual Harassment Claims Expanded

28 July, 2023 | Rachael Chandra

The Employment Relations Act 2000 (“the Act”) gives employees the right to raise a personal grievance with their employer if they believe they have a personal grievance.[1]

A personal grievance under the Act includes (amongst other things) a claim that the employee has been sexually harassed in the employee’s employment.  Until 13 June 2023, the timeframe within which an employee had to raise a personal grievance with an employer, including for sexual harassment, was 90 days.

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 (the Act), which came into force on 13 June 2023 changes the timeframe for raising a personal grievance for sexual harassment from 90 days to 12 months.

Under the Act sexual harassment can arise in situations where the employee has been sexually harassed by an employer or representative of the employer, or by a person who is a fellow employee, client or customer of the employer.

The 12 month timeframe within which a personal grievance must be raised starts on the date the sexual harassment event or incident occurred, or when the employee became aware of it, whichever is the later.

The change in the timeframe has significant implications for employers and employees.

For employees it means they have more time to raise a personal grievance claim related to sexual harassment.  Sexual harassment can be a very difficult experience for employees to talk about and address.  The Act recognises this hence allowing employees more time to raise a personal grievance with their employer.  It is no doubt a positive change for employees, although one that may have practical challenges, such the ability to fully and fairly investigate allegations, gather all relevant evidence and assess those.  With the passage of time, employees may forget certain information, leave employment and be difficult to track down for the purposes of an investigation.

For employers, the change means a number of things, including:

1. a timely reminder that employers have very strict duties under the Act in relation to sexual harassment and providing a safe work environment; and
2. a positive duty to include the new 12 month timeframe for raising a personal grievance for sexual harassment in all employment agreements entered into with employees from 13 June 2023 onwards.

Other steps employers can and should take as best practice measures include, reviewing and updating workplace policies, procedures and codes of conduct to ensure they clearly and adequately address the employer’s commitment to providing a safe and healthy work environment for employees, in which conduct constituting sexual harassment is prohibited.  Also, the assistance and support available to employees who consider they are or have been sexually harassed, and the new timeframe for raising a personal grievance.
Updated policies, procedures and codes of conduct should be communicated to employees as soon as possible.  These are our recommendations.  They are not mandatory obligations.
The Act does not require employers to vary employment agreements to reflect the change in the time limit for employees employed prior to 13 June 2023.  However, in the event there is an opportunity to vary terms of employment for employees employed pre 13 June 2023, the change should be included in the varied terms of employment.

Other Things to Note

The Act does not apply retrospectively.  This means that if an employee was sexually harassed and aware of this prior to 13 June 2023, the employee will have 90 days to raise the personal grievance.  The new timeframe for raising a personal grievance for sexual harassment will not apply in these circumstances.  The Employment Relations Authority and the Employment Court however have jurisdiction to extend the timeframe for raising a personal grievance if an employee wanting to raise a personal grievance outside the 90 day timeframe makes an application for the same.  Applications of this nature are assessed on a case by case basis.

The 90 day timeframe for raising a personal grievance for other claims has not changed.  This means that employees still only have 90 days to raise a personal grievance for other types of claims.

Dealing with Sexual Harassment in the Workplace

Employers have a duty under the Act to investigate allegations of sexual harassment.

Employers should treat allegations of sexual harassment seriously and act promptly once it is brought to their attention.  Addressing sexual harassment allegations is not easy and the obligations on employers are very onerous.  One of the elements that make navigating this process complex, and challenging, is balancing the rights of the employee making the allegations against the rights of the employee in respect of whom allegations have been made.  There are many other factors that make the process complex.

We strongly recommend that employers seek legal advice as soon as an allegation of sexual harassment is received so that they can be guided through the process.

An employer’s failure to take action, or the appropriate action, once a sexual harassment claim has been received can lead to a personal grievance claim being raised against the employer.  This can be very costly for the employer.

Employees affected by sexual harassment in the workplace should seek legal advice if they are uncertain about their rights and or the process involved in exercising the same.

The Author, Rachael Chandra, is an experienced employment law specialist, having assisted numerous employers and employees with employment related problems, including sexual harassment claims.  If you require any assistance in relation to any of the above matters, such as updating employment agreements and other related documents, or dealing with other employment related matters, please contact Litigation Assistant, Mikayla Sagar on 09 837 6890 or email mikayla.sagar@smithpartners.co.nz.