Under the Employment Relations Act 2000 (“the Act”), when an employee wishes to raise a personal grievance, the standard time to raise the grievance is 90 days after the employee becomes aware of the reason for which they could raise the grievance.
However, the Act was recently amended to add an exception to the 90-day rule. In the specific case of sexual harassment, an employee now has an extended 12-month period in which to raise a personal grievance under the Act.
The new 12-month period begins on the date the alleged action amounting to grounds for a personal grievance for sexual harassment occurred or came to the notice of the employee, whichever is later. The 90-day period still applies to all other types of personal grievances.
The new extended period applies only to personal grievances for sexual harassment, rather than to instances of personal grievance that might contain elements of sexual harassment in addition to other grievances.
The rule change means that new employment agreements entered into on or after 13 June 2023 must refer to the two distinct time limits in an updated employment relationship problem resolution clause. The new rule does not apply retrospectively. The 90-day period still applies to existing employment contracts if the alleged sexual harassment occurred or came to the notice of the employee before 13 June.
If an employer fails to update their employment agreement template to reflect the new rule, they could face a penalty of up to $20,000. Employees will have a defence should they fail to raise a sexual harassment personal grievance within the allowable 12-month period.
Consistent with the fundamental principle of good faith between the parties to an employment agreement, employers should clearly communicate the changes in writing to all existing employees, clarifying the new rule and its implications. While employers are not legally required to update existing employment agreements, it may be prudent to consider amending all existing employment agreements, templates and applicable policies to reflect the new rule, for the avoidance of doubt.
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