Ljubuncic v Elastomers Australia Pty Ltd — Benchmark — WA Industrial Relations Case Database

Ratio

An applicant for unfair dismissal relief must satisfy the minimum employment period requirement (6 months, or 1 year for small businesses) to be protected. Where the applicant was engaged through an agency until 6 July 2014 and only directly employed from 27 July 2014, termination on 27 November 2014 fell short of the minimum 6-month period and thus the application must be dismissed as lacking jurisdictional standing.

Outcome

Against applicant dismissed_jurisdiction

Authority signal

Cited 1× Signal-weighted score: 0.0

Derived from how later decisions have treated this case. Dark green = leading authority, green = positively treated, grey = neutral or sparse data, amber = caution, red = treated negatively.

Key facts · 5

Applicant commenced working at Elastomers as a temporarily assigned person through an agency in April 2014
Applicant was employed by PeopleCo (labour hire agency) from 16 March 2014 to 6 July 2014
Applicant was hired directly by Elastomers on a full-time basis on 27 July 2014
Applicant's employment with Elastomers ceased on 27 November 2014
Period of direct employment with Elastomers was approximately 4 months

Factors

For

Applicant had completed his probationary period by the date of dismissal

Against

Applicant had not served the statutory minimum employment period of 6 months at the time of dismissal
Applicant was not directly employed by Elastomers until 27 July 2014, and was dismissed on 27 November 2014 (approximately 4 months of direct employment)

Legislation referenced

Fair Work Act 2009 (Cth) s.382
Fair Work Act 2009 (Cth) s.383
Fair Work Act 2009 (Cth) s.394

Concept tags · 5

[P]Unfair dismissal (federal) [P]Time limits for filing [S]Dismissal during minimum employment period [S]Employee v independent contractor [S]Joint employer / multi-entity employment

Principles · 1

articulates para 8

A minimum period of employment is a separate and distinct requirement from a probationary period; completion of probation does not satisfy the statutory minimum employment period for unfair dismissal protection.

Related cases · 10

Decisions sharing two or more primary concepts with this case.

Citation	Court	Date	Outcome	Shared	Cited
[2016] FWCFB 5500 Mohammed Ayub v NSW Trains	FWC — Full Bench	2016-09-30	For applicant	2	67
[2014] FWCFB 1070 Mr Peter Mihajlovic v Lifeline Macarthur	FWC — Full Bench	2014-03-05	Resolved	2	27
[2011] FWAFB 466 Patrick Morgan McConnell v A & PM Fornataro T/A Tony's Plumbing Service	FWAFB	2011-01-31	Against applicant	2	13
[2013] FWCFB 2530 Chandra Gupta Narayan v MW Engineers Pty Ltd	FWC — Full Bench	2013-04-29	Against applicant	2	13
[2011] FWAFB 5225 Dr Bing Du v University of Ballarat	FWAFB	2011-08-09	Against applicant	2	10
[2012] FWAFB 5933 Donna Muir McMeeken v Action Industrial Catering Pty Ltd	FWAFB	2012-09-12	Against applicant	2	3
[2015] FWCFB 1257 Mrs Renee Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland...	FWC — Full Bench	2015-03-24	For applicant	2	3
[2011] FWAFB 1515 Rajeev Prasad v Alcatel-Lucent Australia Ltd	FWAFB	2011-03-14	Against applicant	2	2
[2025] FedCFamC2G 403 Timming v Royal Melbourne Institute of Technology	FedCFamC2G	2025-01-01	Resolved	2	0
[2026] FWCFB 9 Gulden Bereket v Brighte Capital Pty Ltd	FWC — Full Bench	2026-01-01	Against applicant	2	0

Archived text (430 words)

Ljubuncic v Elastomers Australia Pty Ltd [2015] FWC 819 (5 February 2015) [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 . Printed by authority of the Commonwealth Government Printer <Price code A, PR560682>