Nathann Larkin v Oaky Creek Coal Pty Ltd

[2016] FWC 387

[2016] FWC 387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Nathann Larkin
v
Oaky Creek Coal Pty Ltd; Stacey Coburn; Duncan Campbell; Mark Lydon
(AB2015/284)

COMMISSIONER SIMPSON BRISBANE, 8 MARCH 2016

Application for an FWC order to stop bullying - non-attendance - application dismissed.

[1] On 21 June 2015, Nathann Larkin (the Applicant) made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009. (the Act)

[2] On 14 September 2015 the matter was listed for Conference before Commissioner Simpson.

[3] The Applicant did not attend the conference on 14 September 2015 and could not be contacted by telephone. My associate attempted to contact the Applicant several times, but was unable to leave a voice message for the Applicant. On the same day my Associate emailed the Applicant to seek an explanation for his failure to attend the teleconference.

[4] On 23 September 2015 the Applicant contacted my associate and indicated he had failed to appear for the 14 September conference because of two issues. Firstly he explained he had been attending to a family matter at the time of the conference, and secondly that his children had accidentally dropped his mobile phone and smashed the screen leaving him without a phone.

[5] The matter was subsequently relisted for conference on 16 October 2015. The Applicant did not respond to several emails regarding the matter prior to this conference. The Applicant did not attend the conference and could not be contacted by telephone.

[6] The Applicant has not subsequently responded to any correspondence from the Commission from 16 October 2015 to 25 February 2016 or to any telephone messages left from my Associate.

[7] The Employer’s representative advised that Mr Larkin’s employment was automatically terminated on 30 January 2016 upon completion of his training contract.

[8] The Applicant is no longer an employee and as such there cannot be a risk of the Applicant being bullied at work by the individuals identified in his application because he is no longer at work. In light of the above facts, the Commission has no power to make an order to stop bullying.

[9] The Commission is satisfied that it is appropriate in all the circumstances to dismiss the application. The Commission exercises its discretion under s.587 of the Act to dismiss the Applicant’s application for want of jurisdiction

[10] The application is dismissed under s.587(1)(c) of the Act.

COMMISSIONER

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