Elvir Ljubuncic v Elastomers Australia Pty Ltd

[2015] FWC 819

[2015] FWC 819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elvir Ljubuncic
v
Elastomers Australia Pty Ltd
(U2014/15524)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Elvir Ljubuncic alleged that the termination of his employment by Elastomers Australia Pty Ltd was unfair.

[2] In his application Mr Ljubuncic stated that he commenced working at Elastomers as a temporarily assigned person in April 2014 and was hired on a full time basis on 27 July 2014.

[3] Mr Ljubuncic’s employment ceased on 27 November 2014.

[4] On 5 January2015, I sent an email to the parties asking whether Mr Ljubuncic was employed by Elastomers in April 2014.

[5] I was advised by Mr Ljubuncic on 5 January 2015 that he was not directly employed by Elastomers in April 2014, as he was hired through an agency.

[6] Elastomers provided a copy of Mr Ljubuncic’s letter of offer from Elastomers dated 8 July 2014 which he signed on 11 July 2014 and a letter from PeopleCo which advised that Mr Ljubuncic was employed by them from 16 March 2014 to 6 July 2014.

[7] For an employee to be protected from unfair dismissal an employee must have served a minimum period of employment, namely 6 months or 1 year if employed by a small business. 1

[8] Mr Ljubuncic complains that he was dismissed after his probationary period had ended. However, that is not relevant to the question of whether Mr Ljubuncic was employed for the minimum employment period. The minimum period of employment is separate to a probationary period.

[9] On 20 January 2015 I advised Mr Ljubuncic that, based on the material provided by him and Elastomers, he had not served the minimum employment period. Mr Ljubuncic was asked to provide any other material he may have to support his claim that he had served the minimum employment period. He was advised that otherwise I would decide the matter on the material currently before me. Mr Ljubuncic did not provide any additional material.

[10] As there are no disputed facts it is not necessary to have a hearing/conference.

[11] As Mr Ljubuncic was not employed by Elastomers until July 2014 he had not served the minimum employment period at the date of his dismissal on 27 November 2014, his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

 1   S.382 and s.383.

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