Extended from 90 days to 12 months
The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act came into force on 13 June 2023. It has extended the timeframe in which a personal grievance (PG) can be raised when sexual harassment has occurred at work.
The timeframe now allows a PG to be raised within 12 months of the harassment occurring or coming to an employee’s attention, rather than the former period of 90 days. The purpose of this amendment is to allow sexual harassment victims more time to come to terms with what has happened before deciding whether or not to raise a PG.
Employment law fundamentals
Employment law in New Zealand is underpinned by the Employment Relations Act 2000; it promotes productive employment relationships and encourages employers and employees to act in good faith in all aspects of the employment environment. This is achieved by specific processes to help parties resolve employment disputes in a quick and flexible way, such as allowing an employee to raise a PG. A PG is a complaint that allows an employer and employee to address, amongst other things, a sexual harassment claim.
What is a personal grievance?
You may raise a PG against your current or former employer if you believe you have been treated unfairly or unreasonably. This includes situations where you think you have been:
- Unjustifiably dismissed
- Unjustifiably disadvantaged
- Discriminated against in your employment
- Sexually harassed in your employment
- Treated adversely in your employment on the grounds of family violence, or
- Racially harassed.
When deciding if an act or dismissal was justified, your employer, the mediator or the Employment Relations Authority must consider what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
You can choose to raise a PG with your employer directly or via the Employment Relations Authority. To raise a PG, you have 90 days, or 12 months for instances of sexual harassment, from the date the action or dismissal occurred or from when you became aware of it. You can, however, raise a PG after the 90-day period has expired in other circumstances if your employer agrees.
Defining sexual harassment
Sexual harassment is unwelcome or offensive sexual behaviour that is either repeated or serious enough to have a harmful effect. It can be direct or indirect. Sexual harassment does not have to be physical; it can also be through written, verbal or visual materials/actions. You may only raise a PG for sexual harassment if it has occurred during the term of your employment. Sexual harassment is defined in sections 108 and 117 of the Employment Relations Act 2000.
Know your rights
It is important for both employees and employers to know their rights and obligations surrounding personal grievances. Employers should ensure their employment agreements are updated to reflect the above amendments.
DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022. Editor: Adrienne Olsen. E-mail: [email protected]. Ph: 029 286 3650
A cost-effective alternative to court
After separating, you could find yourself at loggerheads with your former partner or spouse on exactly how all property should be divided between you. Negotiations may be bouncing between your lawyers, with no common ground achieved. Without agreement, you could file court proceedings but learn costs would increase dramatically. As well, it could be years before a judge can give a decision on how your property will be divided.
Mediation, on the other hand, could be arranged within weeks. It offers a practical alternative to reach a conclusion on how property should be divided between you and your former partner.
The seven year itch
The Clean Slate Act or clean slate scheme, more formally and correctly known as the Criminal Records (Clean Slate) Act 2004, became law almost 15 years ago. The rationale behind the legislation was to enable people who had certain convictions to put their past behind them without the stigma of a permanent conviction. Having a criminal record can have far-reaching consequences for employment, immigration, voluntary work and various other matters.
What the legislation means
The Clean Slate Act limits the effect of convictions if certain criteria are satisfied. If it has been seven years since you were convicted, you will be considered to have no criminal record and can state this to anyone who asks.
An employment minefield
In the lead-up to the 2017 election, broadcaster Mark Richardson caused an uproar when he asked the then Leader of the Opposition, Jacinda Ardern, if she had plans to have children. The commonly-held view was that this question was outrageous. While a broadcaster has the liberty to ask a range of questions, an employer or potential employer cannot ask this.
Job interviews can be a challenge for both employers and applicants. There are varying opinions on the best way to interview applicants and which questions will help you ascertain if someone is the right fit for your workplace.
At last year’s Melbourne Cup, a young Kiwi woman had her photograph circulated around the globe after a journalist photographed her antics at the races. As the woman was in a public place with no expectation of privacy no criminal offence was committed, nor was there any civil wrong. This would also be the case in New Zealand. The situation raises some interesting questions about how private is private when taking photographs in a public place?
What are the rules?
It’s generally lawful to take and/or publish photos or film people in public places such as a beach, shopping mall, park or other public place without their consent. There is no expectation of privacy in these places.
From 1 April 2011 a number of significant changes to employment law will come into effect.
The most important change (and the one that seems to be receiving little media attention) is the change to the ‘test of justification’ in respect of personal grievances. Presently, when an employee complains of being unjustifiably dismissed the Courts look at what the employer should have done in all the circumstances. The test is to be relaxed to become what could a reasonable employer have done. Provided the employer’s actions fall within the range of a what a reasonable employer could have done then no personal grievance can be upheld.
Other changes include the extension of the 90 day grievance free probationary period to all employers and the ability for employees to ask that their fourth week of annual leave is cashed up.
To understand how these changes affect you please feel free to contact Chris on 07 872 0877 or 021 2421601.
Read the press release from the Minister of Labour below…