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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with an application brought by Nathann Larkin against Oaky Creek Coal Pty Ltd for an order to cease bullying. The dispute arose from allegations of workplace bullying at the respondent's mine site, where the applicant claimed to have been subjected to repeated and severe bullying by a colleague, resulting in significant psychological harm. The applicant sought an order under the Fair Work Act to compel the respondent to take steps to stop the bullying, including requiring the colleague to attend a mediation session.

The primary legal issue before the court was whether the applicant had established that the respondent had failed to take reasonable steps to stop the bullying, as required under section 347 of the Fair Work Act. The court had to determine if the evidence presented by the applicant was sufficient to conclude that the respondent had not made reasonable efforts to address the bullying, particularly in light of the respondent's assertion that they had taken various steps to manage the situation. Another critical point was the significance of the colleague's non-attendance at the mediation session and whether this impacted the respondent's efforts to resolve the issue.

The court found that the applicant had not demonstrated that the respondent had failed to take reasonable steps to address the alleged bullying. Despite the applicant's claims, the court considered the respondent's evidence that they had taken actions, such as counselling for the alleged bully and attempts to mediate between the parties. The court was unconvinced that these efforts were inadequate, especially given the non-attendance of the alleged bully at the mediation session, which the court deemed a material factor in the respondent's response to the situation. Consequently, the application was dismissed as the applicant had not met the burden of proving that the respondent had not taken reasonable steps to cease the bullying.

Nathann Larkin v Oaky Creek Coal Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established