Bill proposes extended time to raise personal grievance for sexual harassment

In May, the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill passed its first reading in Parliament. The public has an opportunity to make submissions on the Bill, which will be heard and considered by the Education and Workforce Select Committee. The Bill proposes to extend the statutory timeframe available for an employee to raise a personal grievance that involves allegations of sexual harassment from 90 days to 12 months.

Details of the Bill

The purpose of the Bill [1] is to improve the personal grievance process for victims of workplace sexual harassment by allowing them sufficient time to consider what has occurred, before deciding whether to raise concerns with their employer. 

The Explanatory note of the Bill highlights that the Bill is intended to respond to issues including:

• The difficulties of reporting sexual harassment given the nature of the issue;
• It is common for victims of sexual harassment to wait a long time to raise the matter with others;
• 90 days may not be enough time for a person subject to sexual harassment to raise a grievance, as it can take some time to consider what has occurred and to feel safe to raise the matter; and
• The 90-day deadline imposes an arbitrary deadline on victims of workplace sexual harassment and makes it less likely that they formally raise concerns about the behaviour of colleagues.

Does the Bill go far enough – should it address workplace bullying?

Prior to its reading, the Bill had widespread support, and reflects an increased understanding of challenges that arise when raising complex and sensitive workplace matters, such as sexual harassment allegations. Some have asserted that the Bill does not go far enough in its protections and should include workplace bullying. That issue may feature in submissions on the Bill to the Select Committee, for example, that the Bill should be extended in scope to include unjustified actions causing disadvantage (given there is no current explicit ground of grievance for ‘bullying’) or set out a statutory definition of bullying for inclusion.

In attempting to address the present challenges associated with raising a workplace sexual harassment claim, the Bill sits alongside the new Protected Disclosures (Protection of Whistleblowers) Act [2] which comes into effect in July 2022. That Act facilitates the disclosure and investigation of serious wrongdoing in the workplace and introduces improved protection to employees who make disclosures. The Act now explicitly recognises bullying and harassment as examples of serious wrongdoing.

Is a 12 month limitation period for raising a claim new?

A 12-month limitation period within which to raise an issue is not novel in employment law. For example, where a statutory breach is pursued (accompanied by an action to recover a penalty), this action must be commenced within 12 months. There is no limitation under the Human Rights Act for taking a complaint to the Human Rights Commission, although the Commission may decline to take action or further action if the complaint relates to a matter alleged more than 12 months before the complaint is received by the Human Rights Commission.

What employees and employers need to know about the Bill

Having had its first reading, the Bill has progressed to the Select Committee. Submissions on the Bill can be made until 15 July. There is no timeframe by which the Bill may be reported back to the House, nor when it could become law. 

If you have questions about the Bill, or are interested in making a submission, don’t hesitate to contact our specialist employment law team on 07 282 0174, or by email.