NEW LAW PASSED WILL AFFECT ALL NEW EMPLOYMENT AGREEMENTS
A new law extending the timeframe for raising a personal grievance for sexual harassment to 12 months came into effect this week. The new law applies to all existing employees, and also affects all new employment agreements made from Monday 12 June 2023 onwards.
Coming forward to report sexual harassment can be a difficult experience, and victims often wait a long time to do so, if they do so at all. The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 (the Act) gives victims of sexual harassment more time to decide whether they wish and feel safe to raise a personal grievance.
The timeframe to raise a grievance for sexual harassment begins from the date the harassment occurred, or came to the employee’s notice, whichever is later. The sexual harassment needs to have occurred in the course of the victim’s employment.
The deadline to raise a personal grievance for all other personal grievances remains at 90 days (beginning from the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is later).
Frequently asked questions
A number of clients have asked how this change will impact their business in practice.
Do we need to update our employment agreements?
For current employees, no. For any employment agreements entered into after 12 June 2023, yes. New employment agreements need to set out the 12-month timeframe. This makes now a good time to review your employment agreement templates generally, and check everything else is also up to date and suited to the current needs of your business.
Failing to update your new employment agreements (post-12 June) could give rise to a penalty of up to $20,000, as well as provide employees with a defence if they fail to raise a personal grievance for sexual harassment within the 12 month time frame.
Do we need to notify our employees of the change?
There is no positive obligation for employers to notify current employees about this change in law. However, as a matter of best practice, we recommend letting your current employees know about the change. In the event that current employees enter into new or varied employment agreements in the future, that would also be an opportunity to update any clause which refers to the 90-day period for raising a personal grievance.
Do we need to consider updating any other employment documentation?
As well as updating your employment agreement templates for any new hires, employers should also review their company policies (specifically those relating to resolving employment relationship problems and/or harassment and bullying). If these policies refer to the time periods or process for raising a personal grievance, they should be updated to reflect the 12-month timeframe.
It’s also worth noting that under the longer timeframe, it may be more difficult to investigate these types of allegations and take appropriate action, as there is greater risk that relevant staff (witnesses or those involved in the alleged behaviour) may have left the organisation or have faded recollections of events. These issues will need to be carefully and sensitively navigated on a case-by-case basis, and we recommend you seek advice if you find yourself in this situation.
Does an employee still have 12 months to raise a personal grievance for sexual harassment, if the harassment occurred before the Act comes into force?
The Act does not apply retrospectively. This means that if an employee experienced sexual harassment (and this had come to the employee’s attention) prior to the Act coming into force, the employee will only have 90 days to raise a personal grievance and cannot rely on the 12-month timeframe in relation to that alleged incident. However, if the alleged sexual harassment occurred before the Act comes into force but the employee only becomes aware of it after the commencement of the Act, the 12-month timeframe applies.
There are also still a few grey areas, such as how the 12-month timeframe will work with other related personal grievance claims that must be raised within 90 days, for example, a personal grievance for unjustified dismissal, where sexual harassment may have been a factor. The Employment Relations Authority and Employment Court will likely provide guidance on these areas in time.
How can we help?
If you have questions about the new law, or would like assistance updating your employment agreements, our experienced team of employment lawyers is available to help.
WRMK Lawyers has Northland’s largest team of employment law specialists. We help our clients with all their employment processes. If you need help or guidance, please give one of us a call or contact your usual WRMK lawyer for advice.
WRMK Lawyers takes all reasonable care to make sure that the information in this article is up-to-date and accurate at today’s date. It is necessarily general information and not intended as legal advice to be relied upon.
Every effort has been made to ensure accuracy in this article. However, the items are necessarily generalised and readers are urged to seek specific advice on particular matters and not rely solely on this text.
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