Western Sydney Local Health District prosecution withdrawn

Following three weeks of hearings and the calling of 20 witnesses, a psychosocial risk prosecution against Western Sydney Local Health District (WSLHD) has been withdrawn by SafeWork NSW — as announced by Ashurst, which defended WSLHD in the proceedings. The withdrawal comes at a time when there has been increased regulatory focus on psychosocial safety, with Ashurst calling this a “landmark psychosocial risk prosecution”.

The prosecution — which is one of the first safety prosecutions considering alleged failures to manage psychosocial risks — commenced in 2022 when SafeWork NSW alleged that WSLHD failed to manage psychosocial risks when responding to and investigating complaints, concerns and grievances made about and by two nurses.

SafeWork NSW’s withdrawal of the prosecution signifies the difficulty with proving breaches of the WHS Act in the context of managing psychosocial risks, Ashurst said in its announcement. The Ashurst team was led by partner Scarlet Reid.

“While it was acknowledged during the proceedings that complaint and grievance handling processes are inherently stressful, the Court noted that the causing of stress through these processes is not a breach of the WHS Act,” the Ashurst announcement read. “Due to the withdrawal of the proceedings by SafeWork, the Court was not required to make any determination about the types of steps that should be taken by an employer to avoid stress becoming a risk of psychological injury.”

Not published at the time of these proceedings, the SafeWork NSW Code of Practice on Managing Psychosocial Hazards at Work includes a section on reasonable management action. In the code it is noted that while managing psychosocial hazards and risks may require decisions that may be perceived as causing stress and therefore a WHS risk, reasonable management action — when carried out lawfully and in a reasonable way — is a legitimate way to manage workplace behaviours.

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