September 2023

Personal Grievance and Sexual Harassment

A large light has been shining directly onto sexual harassment in the workplace. The light is exposing the disconcerting reality that sexual harassment exists but often goes unreported. The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 (the Act) extends the time for personal grievance claims to be raised which involve allegations of sexual harassment from 90 days to 12 months (Extended Time).

The 90-day period will remain in force for all other personal grievances. The 12-month period will be enforceable only for claims of sexual harassment.

Employment agreements

The Act came into force in New Zealand on 13 June 2023. Employment agreements entered from 13 June 2023 onwards need to provide for the Extended Time. Should this not occur employers may face a penalty of up to $20,000 while employees will have a defence should they fail to raise a personal grievance for sexual harassment within the Extended Time.

The Act does not apply retrospectively, meaning that there is no requirement for employers to update employment agreements in place prior to 13 June 2023 to reflect the change. However, due to the complexities that can arise with sexual harassment coupled with the recent development of the law and the unknown territory that flows from this, it may be in employers’ best interests to update all employment agreements in place and workplace policies to reflect the change.

Sexual harassment prior to the Act

The Extended Time will only apply to;

1. employees who have experienced sexual harassment after the Act came into force; or
2. employees who experienced sexual harassment prior to the Act’s commencement but who became aware of it after the Act’s commencement.

The Act provides those employees with more time to process the events, seek help, and in some cases find alternative employment. Employees are given the power to better position themselves in making an informed decision in considering what has happened to them before deciding whether to raise a personal grievance.

Employers may see the changes as detrimental due to their liability extending from 90 days to 12 months. The investigative process may become difficult in terms of obtaining evidence which could be exacerbated if employees leave. By updating workplace policies and all employment agreements as previously touched on, provision could be made around requiring employee cooperation in matters even after their employment has come to an end. The overall hope is that the impacts of the Act will be positive.