Period for raising sexual harassment grievances extended

Article written by John Farrow and published in the Otago Daily Times on 20 June 2023.

The Employment Relations Authority has exclusive jurisdiction to deal with employees’ personal grievances.

If an employee who has been dismissed wishes to challenge that dismissal, the challenge can only be brought in the Employment Relations Authority as a personal grievance.

An unjustified dismissal is not the only type of personal grievance. Other grievances include disadvantage by the employer’s unjustifiable action; discrimination; sexual harassment; racial harassment; duress in relation to membership or non-membership of a Union; and adverse conduct for a prohibited health and safety reason.

A personal grievance must be raised within 90 days, beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee.

This time period can be extended with the employer’s consent, however that is seldom ever given. One of the objectives of the Employment Relations Act is to ensure personal grievances are dealt with expeditiously. For that reason, there is a time limit on raising personal grievances. There is limited ability to apply to raise a grievance outside of the 90-day time period.

This can only occur in exceptional circumstances, including where an employee has been so affected or traumatised by the issue that they have been unable to properly consider raising the grievance within the specified time period.

The 90-day limitation is so important that it must be expressly referred to in all employment agreements. Failure to do so amounts to an exceptional circumstance, allowing the grievance to be brought outside the time period. As from 13 June 2023, employees raising a grievance for sexual harassment now have 12 months to do so, as opposed to 90 days.

“Sexual harassment” is defined in the Employment Relations Act and includes direct or indirect requests for sexual activity containing implied or overt promises of preferential treatment or threats of detrimental treatment in employment.

Advice of the new extended time period must be included in employment agreements for new employees after June 13, 2023.

It is not entirely clear how existing employees are to be notified of the new time period since there is no requirement to include that information in existing employment agreements.

The legislative change has been a long time coming. Ministry of Business, Innovation and Employment published an issues paper in 2020 seeking feedback and submissions on New Zealand’s current systems for dealing with bullying and harassment. The paper found only 14 cases in the Employment Relations Authority between 2015 and 2019 dealing with sexual harassment and none in the Employment Court.

That was noted as odd, since other information indicated that sexual harassment was occurring at a much higher frequency. For example, the Colmar Brunton survey into the legal industry commissioned by the Law Society in 2018 found that 31% of women and 5% of men had responded that they had been sexually harassed at some time in their working life.

Submitters were clear that the 90-day time limit for raising a personal grievance for bullying was inappropriate. The main reasons for this were:

• the cumulative nature of bullying/harassment which may take time for the victim to identify;
• the traumatic nature of bullying/harassment (particularly sexual harassment) may result in victims being unable to come forward within a short amount of time.

A number of factors seem to have contributed to the decision to extend the time period for raising the grievance to 12 months. These included:

• cultural norms of shame and fear that can hold victims back;
• power imbalance;
• embarrassment;
• minor matters may build over time;
• upset and trauma preventing people from reporting;
• fear of retaliation;
• victim blaming;
• to allow time for people to come to terms with what had happened and obtain necessary support to come forward.

The opposing arguments included that the extended time period did not allow timely action and that the ability to investigate was hindered as more time passed.

The Employment Relations Act contains some specific provisions where sexual harassment is alleged. In addressing a personal grievance involving allegations of sexual harassment, no account may be taken of any evidence of the complainant’s sexual experience or reputation.

If an employee has been sexually harassed by a person other than the employer, the employee may make a complaint to their employer. This then requires the employer to inquire into the facts.

If the employer is satisfied that the behaviour took place, it must take whatever steps are practicable to prevent any repetition of that behaviour. These types of complaints traditionally involve sexual harassment by clients, customers or third-party contractors.

If the employer fails to take whatever steps are practicable, the employee is deemed to have a personal grievance for having been sexually harassed as if the behaviour were that of the employer.

Sexual harassment should not be tolerated in any way, whether in the workplace or not. There is also an argument that there should be no time-limit on raising matters of harassment with your employer. However, that has to be balanced with the need to resolve grievances in a fair and timely manner. The more historic the allegation, the more difficult it may be for an employer to investigate and to address. The intention of Parliament is that 12 months will strike that balance. Let’s hope that is the case.

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Link to ODT article here.