On 1 November 2022 the Education and Workforce Committee (Select Committee) unanimously recommended that the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill (Bill) be passed.

This Bill proposes to extend the time available to an employee to raise a personal grievance for sexual harassment from 90 days to 12 months.

What you need to know

• Assuming the Bill is passed, employees will have 12 months to raise a personal grievance for sexual harassment.
• The Bill would only extend the 90 day time period for raising a personal grievance for sexual harassment.
• The time period for raising any other type of personal grievance remains 90 days.

The Bill

Currently, an employee who wishes to raise a personal grievance (for any type of grievance) must do so in a period of 90 days, unless either the employer consents to the grievance being raised out of time or the Employment Relations Authority (Authority) considers there are exceptional circumstances that warrant a late grievance.

The Bill intends to improve the personal grievance process for employees who claim to have experienced workplace sexual harassment by allowing them sufficient time to consider what has happened to them before deciding to raise a grievance.

The key policy reasons underpinning the Bill are:

• Reporting sexual harassment can be difficult and it is common for victims of sexual harassment to wait a long time before coming forward, if at all;
• The current 90 day period may not be enough time to raise a grievance for victims of sexual harassment, as it can take people some time to consider what has occurred and feel safe to raise it with others; and
• The 90 day deadline imposes an arbitrary deadline on victims of workplace sexual harassment and makes it less likely they can formally raise concerns about the behaviour of colleagues.

The general support for the Bill indicates a continued intention by several parties, including Parliament, to empower people who experience instances of sexual harassment in the workplace to speak up.

Clarification of scope

The Select Committee’s report clarified the intended scope of the Bill. The Bill is now explicit that it will only extend the 90 day time period for raising a personal grievance for sexual harassment, and not for any other type of personal grievance.

This clarification is welcomed and will provide certainty for employers and employees alike as, initially, the Bill was drafted in ambiguous terms and as applying to any personal grievance that “involves” any aspect of a sexual harassment claim.

Commentary

Ideally, concerns of sexual harassment in the workplace will be raised as early as possible so that they can be investigated and addressed at the earliest opportunity to minimise any further harm to the parties involved. To facilitate this it will be important for employers to:

• have clear policies on sexual harassment;
• regularly reinforce those policies by educating staff about them and the associated processes for raising a complaint; and
• promote a speak up culture – not only from those who are subject to sexual harassment but also those who witness sexual harassment in the workplace.

What’s next?

The Bill passed through its second reading on 9 November 2022 and it is currently at the Committee of the whole House stage. While there is no indication of when the Bill may be passed, given the Select Committee report was initially expected to be released on 18 November 2022, the Bill may be passed sooner rather than later.

Assuming the Bill is passed, the extended time available to an employee to raise a personal grievance will commence on the day after Royal Assent is received (although the Bill will not be retrospective and the extended time will only apply to any grievance that occurred or came to the notice of the employee after the Bill’s commencement date).

Thanks to Phillip Leaupepe-Nickel for his assistance in preparing this article.