Raising a Personal Grievance for Sexual Harassment: The 90-Day Extension
In New Zealand employment law, employees generally have a limited time to raise a personal grievance. However, specific provisions exist for personal grievances involving sexual harassment, allowing for an extension to this standard timeframe.
What is a Personal Grievance?
A personal grievance is a claim an employee can make against their employer for certain types of harm related to their employment. These can include claims of unjustifiable dismissal, unjustifiable disadvantage, discrimination, or sexual harassment [Source: Employment Relations Act 2000, s 103(1)(c)].
Ordinarily, an employee must raise a personal grievance within 90 days after the date on which the action alleged to amount to a personal grievance occurred, or the date on which the action came to the notice of the employee, whichever is later [Source: Employment Relations Act 2000, s 103(1)(a)]. Raising a personal grievance typically involves the employee or their representative notifying the employer that they have a personal grievance and stating its nature.
Sexual Harassment as a Personal Grievance
For the purpose of raising a personal grievance, "sexual harassment" is defined in the Employment Relations Act 2000. It includes sexual harassment as defined in section 62 of the Human Rights Act 1993, or sexual harassment by a person who is not the employer, if certain conditions are met [Source: Employment Relations Act 2000, s 103A, s 103B, s 103C].
Section 62 of the Human Rights Act 1993 defines sexual harassment as an unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature that is persistent or serious and causes humiliation or distress to the person, or creates a hostile environment for that person [Source: Human Rights Act 1993, s 62]. This can also include situations where a person is treated less favourably because they have rejected a sexual advance or request for sexual favours [Source: Human Rights Act 1993, s 62(1)(c)].
The 90-Day Extension for Sexual Harassment Grievances
Recognising the sensitive and often traumatic nature of sexual harassment, the Employment Relations Act 2000 provides a specific mechanism for extending the standard 90-day period for raising such personal grievances [Source: Employment Relations Act 2000, s 103(1A)].
The Employment Relations Authority (ERA), which is a specialist tribunal that deals with employment relationship problems, may grant an extension to the 90-day period if it is satisfied that:
- The delay in raising the personal grievance was caused by the sexual harassment [Source: Employment Relations Act 2000, s 103(1B)(a)].
- There was a reasonable cause for the delay [Source: Employment Relations Act 2000, s 103(1B)(b)].
- It would not be unfair to the employer to allow the personal grievance to be raised [Source: Employment Relations Act 2000, s 103(1B)(c)].
The maximum extension that the ERA can grant under these specific provisions is 9 months [Source: Employment Relations Act 2000, s 103(1C)]. This means that, with an extension, a personal grievance for sexual harassment could potentially be raised up to 12 months after the incident occurred or came to the employee's notice (the initial 90 days plus the 9-month extension).
General Discretion for Extensions
Separate from the specific sexual harassment provision, the ERA also has a general discretion to allow any personal grievance (not just those for sexual harassment) to be raised out of time [Source: Employment Relations Act 2000, s 103(2)]. This can occur if the ERA is satisfied that there was an undue impediment to the grievance being raised in time, or there was a reasonable cause for the delay, and it would not be unjust to the employer to allow the grievance to be raised [Source: Employment Relations Act 2000, s 103(2)].
Implications for Employers
Employers have obligations under the Employment Relations Act 2000 and the Human Rights Act 1993 to provide a safe workplace free from sexual harassment. The extended time limit for raising sexual harassment grievances means that employers must be aware that such claims can be brought significantly later than other types of personal grievances. This highlights the importance of having robust policies and procedures in place for addressing and preventing sexual harassment, and for maintaining thorough records.
When to Seek Independent Legal Advice
Navigating employment law issues, particularly those involving sexual harassment and personal grievances, can be complex. Employees or employers encountering such situations may benefit from seeking independent legal advice to understand their specific rights, obligations, and the available processes. Assistance can be obtained from organisations like Community Law Centres throughout New Zealand, which offer free legal help, or from private legal practitioners.