EMPLOYMENT LAW UPDATE – NEW BILL & WHAT IT MEANS FOR YOU

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill is earmarked for a ‘Third Reading’ any week now. Bills that reach the Third Reading stage very rarely fail to become fully-fledged laws, especially Bills that have received unanimous support across the political aisle.

So, what does this Bill do, and what does it mean for you?

The purpose of this bill is to extend the time available to raise a “Personal Grievance” that involves allegations of sexual harassment from 90 days to 12 months.

A “Personal Grievance” is a complaint that an employee can bring against their current or former employer. Briefly, a Personal Grievance can be brought by an employee if they have been:

• unjustifiably dismissed,
• unjustifiably ‘disadvantaged’ in their employment,
• discriminated against on one of the prohibited grounds,
• sexually or racially harassed,
• bullied, or
• subjected to duress due to membership or non-membership of a union or an employee’s organisation.

Under the Employment Relations Act 2000, an employee has 90 days from the occurrence of the grievance to raise a complaint with their employer. The Employer should then try and resolve the complaint. Currently, there are limited exceptions to bring a Personal Grievance claim after 90 days have elapsed.

If the employer and employee are unable to resolve the complaint, then the employee may request mediation, go to the Employment Relations Authority, or file proceedings in the Employment Court.

Why are they changing the law?

The rationale behind extending the time to raise a Personal Grievance for sexual harassment is that sexual harassment, by its nature, is a complex and difficult issue to talk about. These matters can be treated as taboo, especially in a work environment. It can take some time for the person affected to comprehend what has happened to them and to decide on a course of action.

It is a relatively simple Bill; it does what it says on the Title.

When will it come into effect?

The Bill – originally introduced as a Members Bill by Dr. Deborah Russell and pulled from the trusty biscuit tin of democracy – is likely to be set down for its Third Reading the next ‘Members Day’ in Parliament. A ‘Members Day’ is a dedicated day for legislation that has not been proposed by a Minister of the Government. It will likely be read in May 2023.

Given its bi-partisan support, and the fact it passed through Select Committee without substantial changes, we can be pretty certain that the third reading will be a formality. A Bill that passes third reading is sent to the Governor General’s desk for the ‘Royal Assent’. This occurs within seven days.

The Bill will come into effect the day after it receives the Royal Assent.

Therefore, it is not certain on what date this change will become law, but – barring another natural disaster of some kind (touch wood) – my money would be on it being on the books as an official law by the general election in October 2023.

Is this change Retrospective?

One issue that was raised at Select Committee was whether the Bill would apply to behaviour that occurred before it came into law. The original wording stated that, when the bill is enacted, “any outstanding personal grievance proceedings before the Employment Relations Authority or the court must be determined or completed under the law as it stood when the proceedings were brought.”

This is a little unclear. The intent seems to be that the Bill would not apply retroactively – i.e., an employee could still bring a personal grievance claim after the bill has become law for behaviour that occurred up to 90 days previously, but not for any behaviour that occurred before that (unless there were extraordinary circumstances).

The recommendation from the Select Committee was to make this clause more specific – that the extended time to raise a personal grievance for sexual harassment only applies “if the action alleged to amount to the personal grievance occurred or came to the notice of the employee on or after” this bill’s commencement date.

This has now been clarified and the law will not be retrospective.

What does this mean for you?

Employers: 

Now is a good time to have a thorough review of your internal behavioural and disciplinary policies and structures. As an employer, you can be responsible for your employee’s behaviour, and even some clients.

You also need to ensure that your Employment Agreements are updated to include reference to the new 12-month time period (you are required to highlight the timeframe for a personal grievance claim in plain language in your employment agreements under the existing law). You will not need to amend your Employee’s current employment agreements, but it is a requirement for all individual and collective agreements entered on or after the date that the Bill comes into law.

You need to be confident that your Employees are empowered to address behaviour and issues before they reach the threshold of a personal grievance claim.

Sexual harassment is a scourge in our employment landscape, but it is, unfortunately, common. Don’t turn a blind eye. Make sure you have the right structures in place to address any risks before they become issues. Here at Wakefields Lawyers, we can work with you to assess your business’ structure and work out the best way to protect you and your employees.

Employees:

It is important to know your rights in the workplace. This bill is a welcome acknowledgment of a thorny problem too many employees face. Sometimes 90 days is just not enough time to come to terms with something that has happened.

There are options for you, and, if you have been affected by sexual harassment, or think that you may have been, you now have more time to explore those options and come to terms with what has happened. We have included some free resources and links below.

The employment team at Wakefields Lawyers has a wealth of experience with personal grievance matters and is ready to assist you.

The Take-Away

This is a relatively short bill that constitutes a minor amendment to a small part of the Employment law framework. It is not a huge Government policy that you will see full-page newspaper advertisements or big debates about. You will be forgiven if you didn’t even realise this was on the table.

Law is created and changed on an almost daily basis. Parliament passes regulatory and minor amendment bills like these across all areas of law all the time. The Courts hand down judgments that shift the application of these laws every week.

That’s where we come in. Our team of dedicated lawyers has an ear to the ground, so we never miss an update to the law – no matter how small. We keep up to date with Parliament and the Courts so you can focus on what you do best – whether it’s running a business or being a fantastic employee. If you’re in need of further clarification surrounding this bill, contact the team at Wakefields Lawyers today on (04) 970 3600 or email info@wakefieldslaw.com.

Need Help with Sexual Harm?

Contact the National Sexual Harm Helpline ‘Safe to Talk’:

• Freephone 0800 044 334
• Text 4334
• Email support@safetotalk.nz
• Live webchat at safetotalk.nz

They can help you over the phone or the Internet or connect you with a sexual violence support agency in your own area. Their confidential support is available for free, 24 hours a day, seven days a week. They can provide links to exceptional support for Māori, Pasifika, migrants and refugees, LGBTQI+, and male survivors. They offer helpful resources and information about sexual harm. They also provide a Language Line if you prefer to talk in your own language, offering translation services available in over 40 different languages.

There are also some other nationwide support services offering support specifically for the rainbow community.

• OUTLineNZ: 0800 688 5463 (9 am – 9 pm weekdays, 6 pm – 9 pm weekends)
• RainbowYOUTH: (09) 376 4155 (11 am – 5 pm weekdays)

Need to Talk?

• Free call or text 1737 any time for support from a trained counselor.
• The Depression Helpline – 0800 111 757 or free text 4202 (to talk to a trained counselor about how you are feeling or to ask any questions).
• Youthline – 0800 376 633, free text 234 or email talk@youthline.co.nz or online chat.
• The Lowdown Text – 5626 for support to help young people recognise and understand depression or anxiety.

– Sam Wood (Solicitor)