Extended Time for Personal Grievance for Sexual Harassment
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Raising a personal grievance related to sexual harassment
From 13 June 2023, employees will have 12 months to raise a personal grievance related to sexual harassment.
The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amended Act allows employees more time to raise a personal grievance for sexual harassment, with the period increasing from 90 days to 12 months. For all other personal grievances, the time to notify the employer remains unchanged at 90 days.
This extended period for raising a personal grievance applies only to sexual harassment events that happened, or came to the notice of the employee, on or after 13 June 2023. If an event happened before 13 June 2023, the former 90-day rule applies.
Impact on employment agreements and organisational policies
All employment agreements must include a plain explanation stating how to get help to resolve employment relationship problems, and this includes the time to raise a personal grievance. Things an employment agreement must contain.
From 13 June 2023:
- Employers must include the modified time in new employment agreements.
- Employers don’t need to update existing employment agreements immediately. Employees and employers are covered by the modified time in the Act regardless as the legislation supersedes any employment agreements that specify anything less than the minimum standards.
- Under good faith obligations, employers should write to advise the employees of the change and discuss updating the terms of their agreements the next time they review them.
Employers should also review any relevant organisational policies to make sure the modified time is reflected in them. It’s also a great opportunity while communicating changes to provide a refresher for people leaders and employees on the process to raise complaints, and of the support avaliable.
HR’s role in supporting their people throughout the process
Sexual harassment at work is unacceptable and considered a workplace risk. Disclosure and reporting can be extremely difficult, and HR professionals must ensure they have appropriate tools, training and processes to support clear, fair management of issues, and make sure it is safe for all parties involved.
Throughout the investigation and resolution process, HR professionals should approach all matters with empathy, acting promptly, maintaining neutrality, and ensuring effective communication while upholding strict privacy standards. It is essential for HR professionals to go beyond a mere checkbox exercise and consider the human aspect of the issue by demonstrating empathy and providing support to all parties involved.
Workplace harm, including harassment and bullying, occurs on a continuum, and understanding the different stages of escalation can help HR professionals shape workplace culture to ensure there are mitigation and prevention measures across the board. Changing policies and processes are essential, but education and training play an equally important part in cementing culture change.
Check out The Basics – HR Guide to Bullying & Harassment, Employment NZ's, and Worksafe’s set of resources and guidance for reporting and managing claims of sexual harassment in the workplace, and to make sure your and your organisation’s tool kit is up to date.
There are a wide range of support services available for people who have experienced harm, and it's useful to ensure a list of these is provided clearly for all employees. If you or someone you know needs support, you can reach out to one of the organisations below, or click here to Find Support.
A refresher on Personal Grievances
A personal grievance is a legal complaint that an employee may bring against a current or former employer in some situations, such as employees being:
- unjustifiably dismissed,
- unjustifiably ‘disadvantaged’ in their employment,
- discriminated against on one of the prohibited grounds,
- sexually or racially harassed, or
- subjected to duress due to membership or non-membership of a union or an employees’ organisation.
There are various ways in which an employee can raise a personal grievance.
- Raise a personal grievance with your employer directly. Communicate in writing to the employer to tell them about personal grievance and request a meeting to resolve the issue.
- Request mediation for personal grievance through an external party I.e. the free Employment Mediation Services provided by MBIE. Through this service, an employee can apply directly for mediation without talking to their employer first, if you are uncomfortable doing so due to the type of behaviour or the person you’re complaining about.
- Make a personal grievance claim with the Employment Relations Authority (ERA). The ERA’s process is more formal than mediation but less formal than the Employment Court. Follow the steps on the ERA website.
Time limit for raising a personal grievance
The time limits for raising a personal grievance are 12 months (from 13 June 2023) for sexual harassment claims and 90 days for other claims, when the personal grievance arose or came to the employee’s attention, whichever is the later.
An employee may raise a personal grievance after the notice period if the employer agrees. An employee can ask the ERA if they can raise a personal grievance if they can prove the delay was due to exceptional circumstances.
Second package of Fair Pay Agreements Regulations
The second set of regulations, relating to the Fair Pay Agreement (FPA) process, was published on 11 May 2023 and came into effect on 8 June 2023.
The second set of regulations is comprised of:
- Fair Pay Agreements Amendment Regulations 2023
- Employment Relations Authority (Fair Pay Agreements) Amendment Regulations 2023
- Employment Court (Fair Pay Agreements) Amendment Regulations 2023
The FPA Amendment Regulations 2023 sets out how some of the core mandatory terms must be specified in a finalised FPA. For details on how the agreement must specify the mandatory content as it applies to each class of employees, please click here.
There are additional terms that are not included in these regulations which are still mandatory. However, these terms can be specified in any form agreed by the bargaining sides, providing it complies with the requirements in the Act.
The Employment Relations Authority and Employment Court Amendment Regulations establish, or amend, the necessary forms that parties must use to bring an FPA related matter to the Employment Relations Authority and the Employment Court.
It is important for HR professionals to be proactive in learning the Fair Pay Agreement system as well as the implications for employers and employees. HR as the bridge between employers and employees, must ensure active communication and good faith principles during the process. For a refresher on Fair Pay Agreements, visit The Basics – HR Guides to Fair Pay Agreements 2022 [Members-only].
Up to 4 July 2023, there have been 2 applications being assessed, 4 approved to initiate bargaining, 1 in bargaining and 3 withdrawn. For an update on FPA’s application progress, visit MBIE’s FPA Dashboard.