'Quite often, employers don’t understand it’s a two-phase process,' says lawyer of workplace investigations
Employers take note: Employees now have 12 months to raise a personal grievance related to sexual harassment.
The new timeframe follows the implementation of The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act.
Previously, employees had 90 days from the date of the alleged incident to lodge the claim.
The amendment acknowledges that reporting sexual harassment can be difficult, says Rachael Chandra, senior associate at Smith and Partners Lawyers.
“The change in law brings to the employer’s attention, in a strong way, the importance of having good workplace practices, policies and procedures in place and making sure that on a regular basis they're promoting a culture that ensures sexual harassment is not part of that culture.”
Education around sexual harassment
This should cover education around what constitutes sexual harassment, actions to be taken if allegations are made, and reference to the new law change, she says. Encouraging a culture of inclusivity and respect is one way of helping prevent sexual harassment in the workplace, as well as creating a safe and supportive environment that builds respectful relationships.
“The change makes perfect sense because if someone is subjected to that type of conduct, it’s not an easy thing to talk about, especially if they're in a situation with an imbalance of power, where perhaps it’s someone who's in a position above them — a supervisor or manager,” says Chandra.
The change in law applies to sexual harassment events that occurred on or after 13 June 2023, even if the employee leaves the employment during the 12-month period.
Although employment agreements must include reference to the time to raise a personal grievance, according to Employment New Zealand there is no need for employers to update existing contracts, but the modified time must be included in any new employment agreements.
“The advice most lawyers would be giving to their employer clients would be to have some sort of organisation-wide communication out there for employees, that advises them of the law change and if they can, to try and bring employment agreements up to date,” adds Chandra, who’s dealt with a number of sexual harassment cases, representing employers and employees.
Investigate sexual harassment as soon as there is an allegation
“Sexual harassment claims or allegations are very serious and the obligations on the employer stem from the obligations under the Health and Safety at Work Act, The Employment Relations Act, and also the Human Rights Act. The minute you get any type of complaint or an allegation from an employee, the duty is to investigate,” she says.
The type of investigation is contextual, according to Chandra.
“Each will depend on the nature of the allegations, what’s involved, the number of people involved, for instance, and whether the employer decides to have an external investigator appointed — if it's a fairly large company and there's quite a bit involved, that's what a good employer would do.
“The duty on the employers is to carry out a full and fair investigation and to be able to meet that obligation, [and] often it's best to have an outside investigator do that.”
Take allegations seriously and assess thoroughly
Following objective investigations, an assessment needs to be made as to whether there has been an act that comprises sexual harassment or is in the nature of sexual harassment; if so, the next phase would be to make the decision to go into a disciplinary process.
“My advice is to take any allegation seriously, deal with it immediately and do a really thorough assessment of how you’re going to investigate – whether you involve an external investigator… and also to call a lawyer because it’s an incredibly complicated area of the law,” says Chandra.
“Quite often, employers don’t understand it’s a two-phase process. Those two phases have different standards that apply in how you assess whether something’s happened or not, in terms of the disciplinary action part of it, how that process is supposed to work. It all entails good faith obligations on the employer, and quite often employers get it wrong.”
For all other personal grievances, the time to notify the employer is unchanged at 90 days.
