The window for personal grievance claims has widened – if the claim regards sexual harassment at work

In 2021, a former MediaWorks employee told a New Zealand newspaper that she had been sexually assaulted while working for her employer years earlier, and said she found it devastating that when she made a late personal grievance claim around the matter, MediaWorks declined to hear it – despite the company recently commissioning a review which found there had indeed been repeated inappropriate behaviour for years at the broadcaster.

The former employee, a woman who called herself Sandra while telling her story to the NZ Herald, had applied to MediaWorks for late consideration of her personal grievance claim years after she resigned, following alleged offences against her. Her grievance came after speaking to QC Maria Dew as part of Dew’s independent review of the workplace culture at MediaWorks. The problem was that until mid-2023, under New Zealand employment law, there was a 90-day time limit for an employee to raise a personal grievance unless a company chooses to allow a claim after that deadline.

This loophole significantly changed on 12 June, when the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act received Royal Assent. This now makes it possible for those with a personal grievance around sexual harassment in the workplace to lodge their claim within 12 months – a far more considerate time period compared to the former three-month window, and one that aligns with time frames of the Human Rights Act 1993.

The essential information, in a nutshell  

• The new 12-month window for staff to file a personal grievance applies if the grievance concerns a claim of sexual harassment in the workplace. All other personal grievances are still limited to the 90-day window.
• Claims can only cover from 13 June 2023 onwards. This means the new window for claims is not retrospective and applies to sexual harassment events that happened or came to the notice of the employee, on or after 13 June 2023.
• The new time applies even if the employee leaves the employment during the 12-month period.

This means that for those who are in a position like Sandra, if they attempt to file a personal grievance outside a 12-month window, will still only have the option of again requesting that a late grievance be accepted; complaining to the police; or doing nothing.

All employment agreements, going forward, need to include the change

By law, all employment agreements must include a plain explanation stating how to get help to resolve employment relationship problems and this must specify the new time to raise a personal grievance.

Now, from 13 June 2023:

• Employers must include the modified time in new employment agreements.
• Employers don’t need to update existing employment agreements.
• Employees and employers are covered by the modified time in the Act, regardless of the time noted in any employment agreement.
• Good faith obligations mean employers should discuss updating the agreements the next time they review them with their employees. Any changes must be agreed by both parties and should be recorded in writing. Learn about employment contracts and good faith in NZ workplaces by reading this related article.

What the change means for you when running a Kiwi business

The new law is quite a significant change from the status quo, with the timeframe to raise a personal grievance previously being limited to 90 days, irrespective of the basis for the personal grievance.

The rationale is to allow victims of sexual harassment in the workplace more time to consider whether they want to bring a personal grievance, thereby improving the process for victims.

I’m an employer. What do I need to know and what actions should I take? 

• New employment agreements will need to specifically reference the 12 months within which an employee can raise a personal grievance for sexual harassment.  This is in addition to the requirement to specify 90 days for other types of personal grievances.
• It is important to note that this requirement will apply irrespective of when bargaining or negotiations in respect of an employment agreement started, even where talks began before the commencement date.
• Employers could face a monetary penalty for failure to include reference to the 12-month period and the 90-day period in new employment agreements.
• A failure to update employment agreements entered into after 13 June 2023 means employees are provided with a defence if they fail to raise a personal grievance for sexual harassment within the Extended Timeframe.
• Click through to read this article if you’re aware workplace disputes may be coming, if there is a threat of a personal grievance or if you want tips on how to resolve a workplace dispute.

Do I need to update every single employment agreement in my company?

Employers do not need to update current employment agreements.  However, employers might want to review their relevant workplace policies, to ensure that those policies are up to date.

If you have any questions about the new 12-month timeframe to raise a personal grievance for sexual harassment or have any questions about reviewing workplace policies, please get in touch.

For specific guidance on how to address sexual harassment in the workplace, click through to read Citation HR’s article.

Exactly how do I ensure new employment agreements have the correct information?

If you’re a client of Citation HR, we are in the process of updating employment agreement templates for you, which will change the 90-day personal grievance window to 12 months.

If this article has raised any questions or concerns or you’d like to learn more about how we can help your business, please reach out to our workplace relations experts via our 24/7 HR Advice Line.