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Section 103(1)(d): Personal Grievance for Sexual Harassment

Updated: Feb 21

Section 103(1)(e) of the Employment Relations Act 2000 provides that an employee will have a personal grievance where the employee has sexually harassed in their employment.

Section 108 limits this personal grievance to situations where the employee has been sexually harassed by either the directors personally, or by a representative of their employer. A representative of the employer is typically seen to be a manager, or someone else who holds a position of authority (team leader, supervisor, CEO, etc).

However, there are situations where an employee may be found to have a personal grievance for sexual harassment when the harassment has come from an employee who is not a representative of the employer.

Section 117 states that an employee may make a complaint about another employee's behaviour, if that behaviour is of the nature contained within section 108(1)(a) or (b): that is, whether the employee used language of a sexual nature, used visual material of a sexual nature, or displayed a physical behaviour of a sexual nature.

Section 117 continues that where an employer receives such a complaint, they must enquire into the facts. With respect to that investigation, section 116 states that: "Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant's sexual experience or reputation."

There is an expectation that the employer will make a finding as to whether, or not, sexual harassment occurred. This obligation is implied in section 117(4), where upon concluding that sexual harassment did occur, the employer must "take whatever steps are practicable to prevent any repetition of such a request or of such behaviour."

I wish to highlight here that this obligation to prevent repetition is broad. It is broader than simply disciplining the accused. I believe it involves taking "whatever steps are practicable" to prevent any repetition of the behaviour ... from anyone in the workplace.

If the employer fails to do this, then by virtue of section 118, the employee is deemed to have a personal grievance in accordance with section 103(1)(d); irrespective of the fact that the employee was not sexually harassed by their employer or a representative of their employer.

They are found to have a personal grievance for sexual harassment.

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