On 13 June 2023, the timeframe for employees to raise a personal grievance for sexual harassment during employment was increased from 90 days to 12 months. The timeframe to raise a grievance for anything other than sexual harassment remains at 90 days.
The new timeframe applies even if the employee leaves employment during the 12-month period. What this means is that an employer could be faced with a sexual harassment allegation sometime after it has actually occurred and the employee (or accused) may no longer work there. Also witnesses (other employees) might have left the workplace and unless there is a clause in an employment agreement, they cannot be forced to participate in any investigation. You will still need to carry out a proper investigation, even if this is the case. How this change will play out is yet to be determined and it may be some months, if not years before we get any determinations.
In the meantime from 13 June 2023:
- For existing employees – they are still covered by their existing employment agreements (which should be in writing and signed), but the change will still apply. However, you should update any policies or procedures that refer to the timeframe and as best practice you should bring the change to your employees attention either by a group email, or a staff meeting – make a note of who was present and date and time of the meeting.
- If you are reviewing, renewing, or varying an existing employees agreement, then you must update the clause to reflect the change.
- For any new employment agreements (or existing templates) they must be updated to reflect the change.
If new employment agreements are not updated after 13 June 2023 this could give rise to a penalty of up to $20,000 and give an employee a defence if they fail to raise a sexual harassment grievance within 12 months.
If you are an employer, we are able to provide you with suggested wording to update any of your employment agreements.
If you have any questions, or would like any help updating your agreements, or drafting a sexual harassment policy, please have a chat with our Employment Law specialist, Kelly Hymers.
This is not a substitute for professional legal advice and should not be relied upon as a source of or alternative to professional legal advice.