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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CaseChat Overview and Summary

The applicant, Elvir Ljubuncic, sought relief from a dismissal deemed unfair by the Fair Work Commission. Elastomers Australia Pty Ltd, the respondent, had terminated the applicant's employment. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant argued that the dismissal was harsh, unjust, or unreasonable, and sought reinstatement or substantial compensation.

The court had to determine whether the dismissal was justified under the provisions of the Fair Work Act 2009. Specifically, the court examined if the dismissal was for reasons of redundancy, capability, or conduct, and whether the respondent had followed a fair process in reaching the decision. The applicant contended that the dismissal was retaliatory and not based on valid grounds, while the respondent maintained that the termination was warranted due to the applicant's performance issues.

In its reasoning, the court found that the respondent had failed to provide clear evidence that the applicant's dismissal was for valid reasons. The court emphasised the importance of procedural fairness and noted discrepancies in the evidence provided by the respondent. Consequently, the court ruled that the dismissal was unfair and ordered the reinstatement of the applicant to his former position, along with compensation for lost wages and entitlements.

No additional orders were made beyond the reinstatement and compensation. The court's decision underscored the necessity for employers to adhere to fair and transparent processes when dismissing employees, particularly in cases involving significant employment outcomes.

Elvir Ljubuncic v Elastomers Australia 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