Space to say ‘No’- Employees now have 12 months to raise a personal grievance

A personal grievance (PG) is a form of complaint that an employee can bring against their current or former employer.  Section 103 of the Employment Relations Act 2000 (the Act) sets out what constitutes a PG, these include, but are not limited to the employee being:[1]

1. unjustifiably dismissed;
2. unjustifiably disadvantaged in their employment;
3. discriminated against; or
4. sexually harassed.

An employee may have a PG against a current or former employer for one or more of the claims listed in the Act.

Section 114 of the Act states that an employee who intends to raise a PG against must do so within 90 days from when the employee became aware of the grievance, or when the action occurred.[2]

If this 90-day limit is missed an employee must apply to Authority for the matter to be heard out of time. There is no guarantee the out of time matter will be heard, and without the consent of their employer or litigation, the claim may be statute barred.

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill (the Amendment) amends the Act so that sexual harassment PG claims may be raised within 12 months instead of 90 days.  On 7 June 2023 the Amendment passed its third reading and is currently waiting assent to become law.

Between 2018 and 2019, 94% of sexual assaults were not reported to the Police[3]. It is hoped that the Amendment will have a positive impact for survivors of sexual harassment in the workplace by removing tight time barriers required to raise a PG.[4]  Passing the Bill may assist in addressing the low reporting levels of sexual violence.

What you need to know – employers

The Amendment allows for PG’s under section 103(1)(d) of the Act to be raised within 12 months of the act occurring.  Employers are required to inform their employees of this time extension.[5]

Section 65(4) of the Act already requires employers to include a plain language explanation of the services available for the resolutions of employment relationship problems, including reference to the 90 day time limit. This will need to be amended to explain that sexual harassment claims, pursuant to s103(1)(d) of the Act, must be raised within 12 months of the act or knowledge of the act occurring.

Failure to comply with this new requirement could result in an action being initiated by the Labour Inspector, or a concerned employee.

What you need to know – employees

The Amendment will not have retrospective effect. This means it will not apply to sexual harassment that occurred before 14 June 2023

If you have been subject to sexual harassment before 14 June 2023, you will still be required to raise a PG within 90 days of the act occurring.

If you require advice around raising a PG or any other issues in relation to Employment Law, then please contact our specialist in the Employment team, Alexandria Till.

[1] Employment Relations Act 2000, s103.

[2] Above at 1, s114.

[3] Ministry’s New Zealand Crime and Victim Survey 2018-2019.

[4] https://www.justice.govt.nz/about/news-and-media/news/latest-crime-survey-reveals-surprising-high-levels-of-unreported-sexual-violence/#:~:text=The%20survey%20reveals%20that%20almost,Zealand%20in%20the%20past%20year.

[5] Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.