Creating a safe and respectful workplace environment is crucial for the success and well-being of both employees and businesses. Unfortunately, issues may arise in the workplace that threaten a safe working environment. Sexual harassment is one of these issues. Sexual harassment is defined as any unwelcome or offensive behaviour of a sexual nature that is detrimental to the recipient’s employment, work performance, or work environment. It can include verbal, non-verbal, or physical conduct that is intimidating, hostile, or demeaning.
Sexual harassment poses significant challenges to affected individuals and the organizations they work for. Personal grievance sexual harassment claims have legal implications that business owners must understand to ensure compliance, protect their employees, and safeguard their reputation. Recently, legislative changes have occurred which all business owners must be aware of.
The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 achieved Royal Assent on June 12 2023. This means that from 13 June 2023, all New Zealand employees will have 12 months to raise a personal grievance related to sexual harassment. For all other personal grievances, the time to notify the employer is unchanged and remains at 90 days. The new notification period is only able to be used in instances of sexual harassment and is not retrospective so only applies to events that happened, or came to the notice of the employee, on or after 13 June 2023.
The change aims to improve the personal grievance process for victims of sexual harassment that has occurred in their employment. As sexual harassment is a difficult issue to address or report, the Amendment Act gives victims more time to consider what has happened before deciding to come forward. The new time applies even if the employee leaves the employment during the 12 month period.
So, what does this change mean for business owners?
By law, all employment agreements must include a plain explanation stating how to get help to resolve employment relationship problems. This must include the time to raise a personal grievance. From 13 June 2023, Employers must include the modified time in new employment agreements. However, employees and employers are covered by the modified time in the Amendment Act, regardless of the time expressed in employment agreements.
Under their good faith obligations, employers should discuss updating the agreements the next time they review them with their employees. Any changes must be agreed by both parties and should be recorded in writing.
As a business owner in New Zealand, it is your legal responsibility to ensure a safe work environment free from sexual harassment. Failing to address and prevent sexual harassment may lead to personal grievance claims against your business, or/and, breaches in Health and Safety legislation that can result in penalties. To mitigate risk and promote a culture of respect and inclusion, it is essential to:
- Update Individual Employment Agreements: Ensure employee rights such as the notification period for raising a sexual harassment claim are correctly expressed in your Individual Employment Agreements.
- Implement Clear Policies: Develop comprehensive sexual harassment policies that clearly define what constitutes sexual harassment, emphasize zero-tolerance, and provide guidance on complaint procedures. These policies should be communicated to all employees, and regular training sessions should be conducted to promote awareness and understanding.
- Create Reporting Mechanisms: Establish confidential and accessible channels for employees to report instances of sexual harassment. Encourage open communication and assure employees that their concerns will be taken seriously and handled impartially.
- Conduct Thorough Investigations: Upon receiving a complaint, promptly and impartially investigate the allegations. Engage an independent investigator if necessary, and ensure the process is fair, respectful, and documented. Take appropriate disciplinary action against the perpetrator if the allegations are substantiated.
- Support Affected Individuals: Offer support to the complainant, including access to counselling services such as EAP, if required. Ensure their confidentiality is respected and protect them from any form of retaliation.
Personal grievance sexual harassment claims pose serious legal and reputational risks for businesses as well as serious risk of further harm to employees if not managed well. When faced with a personal grievance sexual harassment claim, it is essential to respond promptly, sensitively, and with utmost professionalism.
- Take any complaint seriously, maintain confidentiality, and ensure the complainant feels safe and supported. Inform them of the next steps and any support mechanisms available.
- Launch a thorough and impartial investigation. Interview all relevant parties, collect evidence and document the process meticulously. Consider engaging an external investigator if necessary to maintain impartiality.
- Based on the findings of the investigation, make an informed decision regarding the outcome of the claim. If sexual harassment is substantiated, take appropriate disciplinary action against the perpetrator, which may include warnings, suspension, termination, or legal action.
- Maintain accurate records of all conversations, investigation steps, and outcomes. This documentation is crucial for legal compliance and may serve as evidence if required.
It is imperative to create a workplace culture that values respect and inclusivity. By implementing clear policies, fostering open communication, conducting thorough investigations, and supporting affected individuals, you can reduce the likelihood of such claims and mitigate their impact if they arise.
Remember, preventing sexual harassment is not only a legal obligation but also an ethical imperative that contributes to a safer, healthier and more productive work environment for all.
Business 360 can assist with Employment Agreements and Sexual Harassment Policies for your business. For more information call us on 0800 449 289 or email info@business360.co.nz. If you prefer a confidential discussion with one of our directors, click or scan below to book a time to discuss your needs.
