Complainants may now have up to 12 months to report a personal grievance of sexual harassment in the workplace. Photo / 123rf
A new Bill is under debate in Parliament, with an aim to extend the time for victims of sexual harassment to make a complaint from 90 days to 12 months,
Northlanders have reported 38 cases of sexual harassment in the workplace since 2018, according to the Ministry of Business, Innovation and Employment.
The number is likely to be much larger, as complainants currently have 90 days to come forward, and many miss the deadline.
If successful, the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill will pass into law.
Whangārei lawyer David Grindle of WRMK lawyers has worked in employment law for 17 years. He explained that employees are currently “constrained by the implementation” of 90 days.
“The 90-day kicks off from the day of which the objectionable behaviour occurred,” he explained, “that doesn’t give sufficient time (to make a complaint).”
While some are celebrating the change as a milestone for employment relations, Grindle said the issues that come along with an additional nine months of time may be impractical.
“The evidential burden is going to be really difficult for everybody concerned,” he said.
The victim will have to have enough evidence and be “specific” with it, and, “on the other side, the employer needs to have the ability to look at what’s being said, understand it, potentially challenge it, and it’s hard to do,” he said.
What would usually be a two-year process will likely increase to three, as is the nature of legal proceedings.
“I understand the reasons behind the bill,” he said, “and that’s so the time frame for sexual harassment claims are the same as the Human Rights Act, creating some continuity between the laws,” he said
“But I wonder whether it’s going to advance the interests of either party, it’s going to be hard to bring a claim 10 months after the event.”
Grindle said while the process may be made more difficult, “I understand the importance of giving victims the ability to complain.”
As for making the process easier for victims?
“Unfortunately it’s always going to be a difficult process,” he said, “the complainants that do have the fortitude to come forward are going to feel that they’re subject to examination and scrutiny, they feel totally undermined in terms of their personal wellbeing and their employment relationships.”
His advice to those considering coming forward is to “speak to someone”.
“Someone to help them understand their available options,” he said, “you don’t want to harbour a truth like this, you need someone to guide you through.”
For employers, Grindle said the amendment will result in a change to the one-year limitation period, which will result in an immediate change to workplace policies.
“Employers should be looking at that, because there’s an immediate cost,” he said.
The Human Rights Commission (HRC) believes the low rates of reporting sexual harassment in the workplace highlight a need to create an easier process for victims.
Domestically, there have been a total of 1,976 complaints taken up with MBIE since 2018, 146 identified as made by female, 78 as made by a male, and the remaining 1,745 did not say.
It’s believed that, much like with family violence and sexual violence, sexual harassment goes under-reported.
In its submission last year, HRC stated “despite the prevalence of sexual harassment in the New Zealand workplaces, there is low reporting and very few complaints proceed to the Employment Relations Authority
The most common defence against sexual harassment claims is that the employee has not raised the issue with their employers within the statutory 90-days.”
While the move to increase the time frame of complaints is a step forward, some are calling for there to be no time frame at all to make an allegation, including the Human Rights Commission and The Ministry of Business Innovation and Employment
The complexity of making an accusation adds increased stress to those wanting to complain, yet they are often faced with a raft of bureaucracy. While that bureaucracy is unlikely to change with the amendment, it’s thought that the extension in time frame will give victims more time to complain.
It’s also difficult for victims to know whether to complain, given the abuse of power that can come alongside sexual harassment.
According to the Ministry of Business, Innovation and Employment, sexual harassment in the workplace can be defined as so if:
MP Dr Deborah Russell, brought the amendment to Parliament.
Russell said in last year’s committee meeting, the reason for bringing forward the amendment is “because of the nature of sexual harassment”.
“It is the sort of offence that can flaw a person; it can render them unable to act, it can put them in such a position that they really don’t feel capable of facing—in this instance, their employer.
So it can take longer than 90 days to have the capacity to make a complaint of sexual harassment. That is why we have asked for the time to be extended to one year.”
If it’s an emergency and you feel that you or someone else is at risk, call 111
If you’ve ever experienced sexual assault or abuse and need to talk to someone, contact Safe to Talk confidentially, any time 24/7:
• Call 0800 044 334
• Text 4334
• Email support@safetotalk.nz
• For more info or to web chat visit safetotalk.nz
Alternatively, contact your local police station.