Mr John Giuffrida v Avondale College Pty Ltd T/A Avondale College of Higher Education

[2012] FWA 8428

[2012] FWA 8428

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr John Giuffrida
v
Avondale College Pty Ltd T/A Avondale College of Higher Education
(U2011/8522)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 OCTOBER 2012

Termination of Employment

[1] Mr Giuffrida lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 3 June 2011. Mr Giuffrida represented himself. Avondale College Pty Ltd (Avondale) was represented by Mr Tipple, solicitor for Brennan Tipple Partners.

[2] Avondale did not agree to attend conciliation. By letter dated 20 June 2011 Avondale advised that it opposed the application on the basis that the applicant was not an employee, that he did not demonstrate by his application that he had been dismissed and that the application was a claim for payment of entitlements rather than a claim related to an unfair dismissal.

[3] On 23 September 2011 Avondale submitted an objection in the following terms:

‘The Respondent objects to the Application for Unfair Dismissal Remedy and seeks the dismissal of the application on the following grounds:

1. The grounds outlined in the Respondent’s F3 Form, paragraph 4; and that

2. The applicant’s claim is frivolous, vexatious and does not have a reasonable prospect of success;

Particulars of claim

a) The Applicant was not an employee of the respondent and has not provided any evidence to the contrary;

b) The Applicant’s claim is in fact a claim for entitlements, not unfair dismissal.

c) The applicant has not complied with the Notice of Listing Directions dated 29 June 2011 by failing to file and serve any written submissions, witness statements or any other documentary evidence to support his claim;

d) The Applicant has not complied with the Notice of Listing dated 11 August 2011 by attending the Jurisdiction (Not an Employee) Arbitration Conference/Hearing on 20 September 2011;

e) The applicant has not provided any reasonable excuse for his non attendance at the Jurisdiction (Not an Employee) Arbitration Conference/Hearing;

f) The applicant has not shown any interest in the proceedings other than to cause delay and otherwise frustrate the Respondent.’

[4] In September 2011 the application was listed because of Mr Giuffrida’s non-compliance with Directions. Further directions were issued by Senior Deputy President Acton. The application was listed for hearing on 8 November 2011 in Newcastle.

[5] On 7 November 2011 Mr Giuffrida sought an adjournment of the hearing. The basis of his application is set out below:

‘DEAR SIR/MADAM,

I wrote to you by email on the 23^rd September 2011 (copy below) in regards to why I was unable to attend conference hearing on the 22nd September 2011. I note I have had no reply to that email as requested.

I note that a hearing is set for the 8^th November 2011. I have contacted the office of the president of FWA and requested information in regards to adjournment of hearings. I was advised that illness is a reason for which adjournments are granted.

I request an adjournment of the above hearing as I am under medical treatment for a cardiac event suffered in September this year. I underwent cardiac exploratory procedures on Thursday the 3^rd of November at Gosford hospital. I am currently convalescing prior to discussing my results with my heart specialist Dr Nicholas Wilks. I will require an adjournment until I am cleared by my doctor to attend. I have attached relevant documentation.

I apologise for the inconvenience caused and I will advise you when I am well enough to proceed.

On the Centrelink certificate you will note that I am also legally blind which also restricts my movements. I have been referred by my Ophthalmic Surgeon to the Sydney Eye Hospital in regards to a corneal transplant.

Again as in the last communication I respectfully request that you confirm by return email that you have received this correspondence.

Yours faithfully

John Giuffrida’

[6] On 8 November 2011 Avondale attended the arbitration in Newcastle. I accepted the tender of Statutory Declaration's of Mr Tipple 1 and Mr Hattingh2 and adjourned the arbitration part heard.

[7] On 18 November 2011 I forwarded the following email to Mr Giuffrida:

‘This matter was heard on Tuesday, 8 November 2011. The employer provided a Statutory Declaration from Mr Stuart Tipple and a Statutory Declaration from Mr Paul Hattingh.

You asked for an adjournment of this matter which was granted and you were therefore not in attendance.

You should advise as soon as you have seen your heart specialist as to what date would be suitable for the hearing of your response.

You should give serious consideration to the material provided by the respondent and perhaps obtain advice regarding your response to the jurisdictional objection of the respondent

Yours faithfully’

[8] Following that hearing Mr Giuffrida advised that he continued to be unwell. On 5 December 2011 he advised that he had a mental health appointment on 16 December 2011 and a medical appointment on 19 December 2011. He undertook to inform me as to the outcome of these appointments.

[9] Mr Tipple requested up-to-date advice as to the standing of the application on 31 January 2012. I forwarded a letter to Mr Giuffrida on 7 February 2012 advising him that, following the notification of his ill-health, and subject to any objections he might have, I intended to discuss the future listing of the application with Mr Tipple.

[10] On 10 February 2012 I received the following correspondence from Mr Tipple:

‘Thank you for your letter of 7 February 2012.

We have not been provided with any medical evidence from Mr Giuffrida so are uncertain as to what his condition is or when he will be fit to proceed with his application.

However we have now been attempting from the outset to have him justify that he has jurisdiction to even bring this application, and that his application should be dismissed because it is vexatious and does not have reasonable prospects of success.

The applicant was directed to attend a hearing on 20 September 2011 to answer the jurisdictional matters raised and our client was excused from attending.

We request that the applicant again be asked to justify that he does have the jurisdiction in this matter as a threshold determination, to save our client any further time and expense in this application.

We look forward to hearing from you.

Yours faithfully,’

[11] Mr Giuffrida provided the following response:

‘Thankyou for your information.

I m not exactly sure what is being said in the letters however my wishes are as follows:

i consent for Tipple solicitors to know that i am ill and unable at this time to participate in any hearings until cleared by my treating physician, howevr [sic] i do not consent to any details of the illness being discussed with Tipple solicitors.

Thankyou for your kind assistance in this matter

kind regards

john’

[12] On 17 February 2012 Mr Tipple advised that his client was prepared to wait if the applicant was unwell.

[13] By email of 20 February 2012 I advised the applicant that Avondale was prepared to wait for a reasonable time until he was able to conduct his application. I advised that I anticipated listing the application in six weeks.

[14] On 29 June 2012 Mr Tipple requested that he receive an update. He advised that it was his information that the applicant was fit for work.

[15] I listed this application for Mention/Directions by telephone link at 9:30 am on 13 August 2012.

[16] At 8.59am Mr Giuffrida forwarded an e-mail in the following terms:

‘good morning

i believe i have a hearing to attend to today.

i will be unable to attend as yt [sic] 85 year old mother has fallen and broken her hip. she has been discharged last week and has required and will require constant attention in sydney.( see attached)

further i am still on a mental health plan and still awaiting my cornea transplant which which has been postponed until 31 august this year.

i will require and adjournment.

kind regards john’

[17] My associate replied as follows:

‘I have shown your application for an adjournment to Senior Deputy President Drake.

Her decision is that your application will have to proceed. However the Senior Deputy President will hear from Avondale College today and from you on another occasion. That occasion will be in the near future. Although the matter will be part heard today it will not be stood over indefinitely. If you would like to respond to this decision please do so in writing.

Please confirm what work you are currently undertaking.’

[18] At the arbitration I heard from Mr Tipple on behalf of Avondale. He relied on his previous exhibits and submissions and sought the dismissal of Mr Giuffrida's application. Mr Giuffrida was not available by telephone link and did not contribute to the hearing.

[19] Mr Giuffrida corresponded with me at 2:01 pm on the same day. His correspondence is set out below:

‘Thank you for your email.

I will address its contents in due time

Your previous email concluded with a question in regards to work.

I am puzzled in regards to this seemingly random question.

I suspect it is asked as some assistance for the respondent.

I have contacted the presidents office and requested information in regards to conduct.

The information I have received has prompted me to ask you to clarify this question.

What is the reason for the question as I checked my email and there was nothing in it to suggest work of any nature.

Kind regards

John’

[20] I gave consideration to the material provided by Mr Giuffrida regarding his mother's health, which he had provided to support his alleged inability to defend Avondale’s jurisdictional objection. The material was not persuasive. Mr Giuffrida’s mother was certified as at 7 August 2011 as follows:

‘NURSING

Mrs Guffrida is alert and orientated. Independent with all activites of daily living. Mobilsing with use of a four wheel walker for long distances and walking stick for short distances. Nil wounds or dressings.

Nurse: L. Murdocca

PHYSIOTHERAPY

Maria attended daily physio and pool and progressed well. She is currently mobilising independently on a four wheeled walker and can use a walking stick for shorter distances. She can also manage stairs using a rail. She has around 75 degrees of hip flexion and 25 degrees of abduction and has been issued with a home exercise program.

Therapist: Cathy Bourne,PT. Ext : 5235.’

[21] I forwarded a letter to Mr Giuffrida on 13 August 2012 directing him to provide his response by close of business 10 September 2012. I advised him that if he did not do so I would deal with Avondale’s jurisdictional objection without further notice to him. In explanation of my request that he advise whether or not he was working, I forwarded an additional email in the following terms:

‘Despite your suggestion that I have asked you a question to assist the Respondent, whether or not you are working is not a matter that would be of assistance to the Respondent one way or the other.

It might however, affect how and when you might be able to prepare your submissions.

Yours faithfully’

[22] On 12 September 2012 I confirmed with Mr Giuffrida that he had not provided a response as directed. I advised that I intended to rely on the Statutory Declarations of Mr Tipple and Mr Hattingh. Mr Tipple’s Statutory Declaration was in part, a declaration as to the service by employed agents of Avondale's objection to the application, as well as the source of Mr Hattingh’s Statutory Declaration on Mr Giuffrida on 23 September 2011.

[23] I have had no response from Mr Giuffrida to date.

[24] I have considered the evidence before me. I am satisfied that Mr Giuffrida was given ample opportunity to peruse the evidence of Avondale. I am satisfied that Mr Giuffrida has, despite his physical impairments, had an adequate opportunity to defend Avondale's objection.

[25] I have perused the quotations received by Avondale from Mr Giuffrida, the purchase orders issued by Avondale to Mr Giuffrida and the details of payments made by Avondale to Mr Giuffrida. I am satisfied and find that Mr Giuffrida was not an employee of Avondale.

[26] The application of Mr Giuffrida is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Giuffrida the applicant

Mr S. Tipple Solicitor on behalf of the respondent

Hearing Details:

2011

Newcastle

8 November

2012

Sydney (Telephone Hearing)

13 August

 1   Exhibit Avondale College 1

 2   Exhibit Avondale College 2

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