The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill has now been passed and is becoming law on 13 June 2023.
This means that the timeframe for raising a personal grievance is now 12 months, instead of 90 days, if the personal grievance is in respect of the employee being sexually harassed in their employment. Regarding personal grievances for any other reasons, the timeframe for raising it remains 90 days.
The 12-month period commences when the sexual harassment occurs or when it comes to the employee’s attention, whichever is the later.
Of note, the new 12-month timeframe for raising personal grievances in respect of sexual harassment will not apply retrospectively, i.e., in respect of events that occurred before the commencement date.
What should you do next?
In the first instance, you should amend your employment agreement templates in respect of the description of available services for the resolution of employment relationship problems to reflect the new law. This will ensure that your employment agreements for new employees will comply with section 65(2) of the Employment Relations Act 2000, which is a legal requirement. All new employment agreements entered into after the 13th of June 2023 must reflect the new law. Failing to do so will result in you being liable for a financial penalty and also in no timeframe being applicable at all and the Employment Relations Authority being able to allow ‘late’ grievances, i.e., those raised after 12 months.
If you already use the CinchHR software system, your agreements and corresponding policies will automatically be updated, and we will get in touch with you regarding the update.
If you do not use the CinchHR software system, we recommend that you use this opportunity to not only update your employment agreements in this respect, but also to generally review your employment agreements and your workplace policies to ensure currency. Contact us on support@cinchhr.co.nz or 0800 246 241 if you need assistance with the updating of your employment agreements in light of the above changes, or if you want to have a conversation about your employment agreements and workplace policies in general.
What About Existing Employment Agreements?
In respect of already existing employment agreements, you are not required to amend those to include the new time period in order to comply with section 65(2) of the Employment Relations Act 2000 and avoid liability for penalties under the Act.
We nevertheless recommend that you inform your employees in writing about the new timeframe and how this affects them.
We have drafted a template letter for this which we will be free for CinchHR portal users and Cinch HR members, and available at a small fee of $25.00 plus GST for everyone else. To request a template letter, email support@cinchhr.co.nz
Anything Else?
This is also a suitable occasion to remind ourselves how sexual harassment may occur in the workplace and to refamiliarise yourself with your obligations as an employer in relation to sexual harassment in the workplace.
Sexual harassment can occur in very subtle and indirect ways and over a period of time. It also often occurs in relationships where there is an imbalance of power and corresponding reluctance to come forward. Considering the impact sexual harassment can have on an employee, the extension of this timeframe has therefore been widely received as appropriate, and we agree with this change. As an employer you need to have your eyes and ears wide open to recognise the occurrence of sexual harassment (or any other of harassment for that matter), so that you can take swift and decisive steps to stop it.
Sexual harassment in the context of an employee’s employment is defined in the Employment Relations Act 2000 and it broadly captures an employer (or a representative of that employer) directly or indirectly making a request of the employee for sexual intercourse, sexual contact, or some other form of sexual activity that contains a promise of preferential treatment in that employee’s employment, or a threat of detrimental treatment in that employee’s employment, or a threat about the present or future employment status of that employee. Such promise or threat can be implied or overt. Further, sexual harassment can occur through the use of language, visual material, or physical behaviour of a sexual nature that directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
The conduct amounting to sexual harassment may come from the employer or a representative employer, or it may come from a co-worker, or even a customer or client. Your staff need to know that they can report concerns of sexual harassment to you, or a nominated person within your business.
Apart from your overarching responsibility to ensure that the workplace is safe, it is also important to understand that if you receive a sexual harassment complaint from an employee in respect of alleged conduct by a co-worker, client or customer, you must instantly make adequate inquiries into such complaint and take practicable steps to prevent the repetition of such behaviour. If you do not do this, then the alleged sexual harassment will be deemed to have occurred, and accordingly, a personal grievance will deemed be substantiated.
If you need a more detailed refresher on your obligations and the generic principles that apply when being confronted with a sexual harassment complaint by an employee, or if you have any other questions, our HR Specialists and Specialist Employment Lawyers can help you with this.
Likewise, contact us if you want to hear about our CinchHR software, our consultancy services, or our ‘members-only’ legal services.
We look forward to hearing from you!