Are delays in the hearing of sexual harassment cases affecting access to justice?
If a person has been sexually harassed during their employment, they can elect to raise a personal grievance under the Employment Relations Act 2000 (ER Act) or complain to the Human Rights Commission (HRC) under the Human Rights Act 1993 (HR Act), before having their complaint heard by the Human Rights Review Tribunal (Tribunal). However, an individual cannot jurisdiction shop. There are no exchanges or refunds, and one size does not fit all. So how does an individual decide which forum is best suited to resolve their complaint?
Unfortunately, there is very little case law in either jurisdiction to assist individuals with this choice (most sexual harassment claims are resolved on a confidential basis between the parties prior to judicial intervention). It is not entirely clear what evidence is required to prove the harassment and remedies have traditionally been very low (particularly in the Employment Relations Authority (Authority)). This means that a decision is usually made by an individual based on the time taken to have their complaint heard and resolved. Surely, for such serious matters this should not be the primary concern.
An individual has 12 months from the date of the alleged sexual harassment to raise a complaint of sexual harassment in the HRC. Contrastingly, a person has 90 days to raise a personal grievance (PG) against their employer for failing to address their complaint of sexual harassment (in this jurisdiction, the complaint is not made against the alleged sexual harasser). In the employment jurisdiction, an employer has a duty of good faith (and from a health and safety perspective) to take affirmative action to address the complaint of sexual harassment, which may include undertaking an investigation or arranging a voluntary mediation between the parties through the Ministry of Business, Innovation and Employment. Section 112 of the ER Act states that where circumstances give rise to a PG which could also be brought as a complaint under the HR Act, the employee must take one, but not both, of the following steps if the grievance has not been resolved between the parties (including during a voluntary mediation which has not ben directed by the Authority):
- Apply to the Authority for the resolution of the grievance; or
- Make a complaint to the HRC under the HR Act for resolution of the matter by the Tribunal.
There are similarities between the Tribunal process and the process in the Authority. Given the similarities in process, individuals were historically more inclined to pursue their claim in the Authority given the lengthy delays in the Tribunal. However, resourcing issues and Covid-19 has introduced similar delays in having matters heard by the Authority. Currently, there is at least a 6-13 month wait for an Investigation Meeting to take place, whereas there is an approximate 8-18 month wait (from the date of filing) for the Tribunal to hear a claim.
Irrespective of the parties’ views on the merits of any alleged sexual harassment claim, it is in everyone’s best interests for such serious matters (which are more likely to render a relationship irrevocably damaged) to be heard more readily. Significant delays in the resolution of a wide variety of employment issues is calling into question the ability of people to access justice.