Last month, WorkSafe commenced prosecution against Bunbury Regional Prison over psychological injury to a former employee. It is the first time WorkSafe has taken prosecution action over psychosocial issues under the current legislation. Maximum penalty is $3.5 million. We detail this case below with a key insight to consider.
Facts of the case
In March 2023, WorkSafe WA issued an improvement notice requiring the implementation of procedures to manage psychological safety. The DOJ, according to WorkSafe, did not comply with this improvement notice. The DOJ now faces charges under sections 19 ("Primary duty of care") and 31 ("Failure to comply with health and safety duty – Category 1") of the Work Health and Safety Act 2020 (WA).
WorkSafe alleges the DOJ did not have proper procedures in place at the prison to deal with inappropriate behaviours like bullying, harassment, sexual harassment and victimisation.
The question is, what are proper procedures? Before looking at that, there is a key insight in this case to consider.
Key insight from a landmark case
Martyn Campbell detailed 'How WHS Regulators decide charges'. With complaints being received daily, Martyn shared why one of these complaints might end up in court:
"There are 20 elements to consider before laying a charge, arguably one of the most important is to determine whether a prosecution is in the public interest."
Public interest could be an important one in this case and for psychosocial safety in years to come. Mental health claims are rising, society is prioritising this and condemning toxic workplace cultures. Regulators might align their actions with this (SafeWork NSW already highlighted this in their strategic plan). Landmark cases like this can demonstrate to workers their psychological wellbeing is protected by law. They could also demonstrate to leaders that:
- Inaction can be as culpable as unsafe actions.
- Culture is no longer a "soft problem" - it's potentially a legal and safety failure.
- Organisations can't claim ignorance or rely on reactive measures.
Proper procedures to deal with inappropriate behaviours
Returning back to the question of what "proper procedures" look like. Two important questions to consider based on the legislation are:
- Is there a safe and confidential space that workers are aware of to report behaviours?
- Is there a process in place to provide a timely and fair response?
If workers answer yes to both of these then it can do the following:
- Encourage internal resolution rather than external resolution.
- Discourage poor behaviour as workers fear it will be reported and dealt with.
One action to take
Send a quick and confidential check to all workers focused on psychosocial safety. This sends a clear message to all that the organisation is actively monitoring for inappropriate behaviours. It would also be harder for someone to argue that your organisation isn't addressing psychosocial safety.
This can seem intimidating but it can be simple and powerful. We have a survey template you could use, just click here to register interest in this.
Thank you for reading. We hope you found this insightful and as always.
NOTE: As with all these cases, we are not making comment on if workplaces are doing a good or bad job. We are just highlighting cases in the news and facts from these cases.
