The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 (the Act) became law on 13 June 2023.
The Act now gives staff 12 months (an increase from 90 days) to raise a personal grievance, if it involves allegations of sexual harassment. iCLAW Associate Olivia Day and Lawyer Tyla Robinson recommend that all employers take the proactive step of reviewing their employment agreements and policies now, to make sure the minimum standards as an employer are still being met in light of these changes.
Sexual harassment is a serious and widespread issue in workplaces across New Zealand. Many victims find themselves in a situation where they either do not understand what has happened to them until after the fact, do not feel they are empowered to ask for help, or do not know how to get help. Many employees, irrespective of what industry they work in, are likely to have been in a situation where one employee has a habit of making ‘clever’ jokes, remarks or actions - that actually quite miss the mark. These actions can put the recipient in an unwanted and vulnerable position, which can lead to allegations of sexual harassment.
The Human Rights Act 1993 defines sexual harassment as any unwelcome or offensive sexual behaviour that is repeated or severe enough to harm someone. Sexual harassment has many faces, whether written or spoken, physical contact or visual material. Employers have a duty to ensure that all employees have a safe working environment, meaning Employers must address sexual harassment (and sexual harassment allegations) in the workplace.
A personal grievance (PG) is a complaint that an employee may bring against their employer, if the employer hasn’t met the standard of what a "fair and reasonable" employer would have done.
PG’s usually need to be raised within 90 days. The old legislation allowed this to be extended in "exceptional circumstances" only, but it was often hard to qualify. The Act now gives staff 12 months to raise a PG if it involves allegations of sexual harassment.
Recent investigations by the Auckland District Law Society indicated that 80 per cent of employees don't know what a PG is or how to raise one, resulting in 93 per cent of sexual harassment victims leaving the workplace without raising a PG. This level of poor reporting could partly be related to the old 90 day cutoff, however a significant portion will stem from the cultural norms surrounding workplace harassment. Feelings of shame and embarrassment prevent employees from talking to their colleagues or management about instances of harassment. At the same time, the workplace dynamic often results in invisible barriers making it feel impossible for a victim to reach out for help.
Now is the time for employers to review and update their employment agreements, workplace policies, and procedures in light of the new Act. If you are concerned about the lawfulness of your workplace documents or feel you may have been subject to sexual harassment, don't hesitate to get in touch with one of the iCLAW team.
If you have any questions regarding the Act and how it may impact you as an employer or employee, please do not hesitate to contact Solicitor Tyla Robinson tyla@iclaw.com or Associate Olivia Day olivia@iclaw.com or call us on 07 929 4300 to make an appointment.