An important change to the Employment Relations Act 2000 came into force on 13 June 2023 when the Employment Relations (Extended time for Personal Grievance for Sexual Harassment) Amendment Act 2023 received Royal Assent.
The new legislation amends the Employment Relations Act 2000 (the Act) by changing the notification periods within which an employee may raise a personal grievance where the employee has been subjected to sexual harassment in the workplace.
Reporting of sexual harassment can be challenging for a victim and often they will wait a long time before coming forward. The purpose of this change to the Act is to allow victims of sexual harassment time to consider what has happened and time to decide whether they wish to safely pursue a personal grievance.
The Act now provides victims of sexual harassment up to 12-months within which to raise a personal grievance for sexual harassment. The 12-month period relates to the date the sexual harassment occurred or when it came to the employee's notice, whichever is later.
All other grievances remain subject to the 90-day period for raising the grievance.
What does this mean for employers?
Employers will need to update their employment agreements for all new employees offered employment on and from 13 June 2023 to update the time periods that apply for raising a personal grievance for sexual harassment.
There is no requirement to amend the employment agreements for existing employees.
Employers need to be aware that if they fail to update their employment agreements for new employees from 13 June 2023 this could expose them to a potential penalty of up to $20,000; and this failure also provides employees with a defence if they fail to raise a personal grievance (PG) for sexual harassment within the 12-month period.
Employers should also review and update their employment policies that relate to the resolution of employment relationship problems and harassment/bullying. This is particularly important if those policies currently refer to the 90-day timeframe for raising a personal grievance.
While employers are not required to notify employees of this change in the notification period for raising a personal grievance for sexual harassment, best practice and good faith would suggest that it makes sense to notify all current employees of the change. This can be done in a letter or via email or as a communication about any necessary changes to company policies.
We also recommend that if you enter into a variation of an employee's employment agreement, for whatever reason, that at that same time you also include a variation to update any clause referring to the 90-day period for raising a personal grievance.
Is this amendment retrospective?
The new time frame for raising a personal grievance on the grounds of sexual harassment does not apply retrospectively. This means someone who was sexually harassed or became aware that they were sexually harassed before 13 June 2023 still only has 90 days within which to raise their grievance. They cannot rely on the new 12-month period. However, if the sexual harassment occurred before 13 June 2023 and the employee only became aware of that harassment after 13 June 2023, in this situation the 12-month period will apply.
MBIE has guidance on the steps employers and employees can take to address sexual harassment.
If you need assistance in updating your employment agreements or company policies to comply with this Amendment to the Act, contact McKone Consultancy today.