Employees who wish to raise a personal grievance generally have to do so within a period of 90 days under the Employment Relations Act 2000 (“ERA”). However, under a Bill that is currently before Parliament, the time limit for raising a personal grievance in respect of sexual harassment would be extended from 90 days to 12 months.
The Bill has already been considered by the Select Committee, and it has passed the first and second reading in Parliament. The Bill is currently awaiting the final reading, and it is likely to be enacted this year.
Raising a personal grievance
Under the ERA, a ‘personal grievance’ is a form of legal action by an employee against their employer. Currently, an employee who wishes to raise any personal grievance against their employer generally has to do so within a period of 90 days. If an employee fails to raise a grievance on time, they may only raise a late personal grievance claim if they persuade the Employment Relations Authority that the delay was due to ‘exceptional circumstances’ and it would be just to grant leave for the employee to raise the personal grievance.
The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill (“Bill”) seeks to provide more time for an employee to process any sexual harassment behaviour they may have experienced, and more time to raise their personal grievance so that they may take legal action against their employer.
What is sexual harassment under the ERA?
The term ‘sexual harassment’ is generally used to describe various behaviours of a sexual nature in the workplace. However, under the ERA, ‘sexual harassment’ specifically refers to two different types of behaviours.
The first involves a request for sexual intercourse, sexual contact or other forms of sexual activity that contains:
- a promise of preferential treatment in the employee’s employment;
- a threat of detrimental treatment in the employee’s employment; or
- a threat about the employee’s present or future employment status.
The second involves the employee being subjected to behaviour that is unwelcome or offensive to that employee, and that has a detrimental effect on the employee’s employment, job performance or job satisfaction. The employee may have been subjected to such behaviour by:
- the use of language (whether written or spoken) of a sexual nature;
- the use of visual material of a sexual nature; or
- physical behaviour of a sexual nature.
Employers’ liability for sexual harassment
The ERA provides that employers are liable for any sexual harassment by the employer or by a representative of the employer. In addition, employers can also be liable for the sexual harassment experienced by an employee in their employment, even if a client, customer or another employee had perpetrated the behaviour.
Under the ERA, an employee may make a complaint about the behaviour to their employer, and the employer will be responsible for inquiring into the facts. If the employer is satisfied that the behaviour took place, the employer must take all practicable steps to prevent repetition of such behaviour. If the employer failed to do so, the employer would become directly liable for further sexual harassment, even if the behaviour was perpetrated by a customer or another employee.
Updating employment agreements
Under the current ERA, employers are required to include in their employment agreements a plain language explanation of the services that are available to resolve employment problems, including an express reference to the 90-day period within which personal grievances must be raised.
The Bill, when it is enacted, will require employment agreements and collective agreements to include an express reference to the 12-month period for raising personal grievances in respect of sexual harassment, and to the 90-day period for raising other personal grievances.
After the Bill was considered by the Select Committee, a Supplementary Order Paper (SOP 331) was introduced to add a provision to the Bill, which makes it clear that employers will not be legally required to amend existing employment agreements and collective agreements to expressly include a reference to the extended 12-month time limit. That said, it would be beneficial for employers to update existing employment agreements when there is an opportunity to do so.
No retrospective effect
Under the Bill, the amendments would come into force on the day after it receives Royal assent (i.e. signed by the Governor General). The Bill is not intended to impose retrospective effect. That means the Bill, when it is enacted, will not extend the time for raising personal grievances in respect of sexual harassment behaviour that has occurred or came to the employee’s notice prior to the Bill coming into force.
That said, we consider that there is some ambiguity at the margins, and sound legal advice would be helpful particularly in situations where:
- an employee has experienced sexual harassment behaviour for some time before the Bill came into force, and this has continued after the Bill commenced (i.e. a continuing pattern of behaviour or a series of connected events); or
- some of the sexual harassment behaviours had occurred before the Bill commenced, but this has come to the employee’s notice after the Bill commenced.
If you need any advice or assistance, we encourage you to contact us.