Ivelin Iliev v Castlemaine Circus Inc

[2021] FWC 1065

[2021] FWC 1065

FAIR WORK COMMISSION

DECISION

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

Ivelin Iliev
v
Castlemaine Circus Inc
(U2021/343)

COMMISSIONER MCKINNON MELBOURNE, 26 FEBRUARY 2021

Application for an unfair dismissal remedy – extension of time allowed.

[1] Ivelin Iliev is a highly regarded circus trainer. He worked as a coach for Castlemaine Circus Inc. from its inception in 2014 until the relationship ended abruptly on 21 December 2020.

[2] On 13 January 2020, Mr Iliev applied for an unfair dismissal remedy. Applications of this type must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows. 1

[3] It is agreed that Mr Iliev’s application is two days late. The question is whether an extension of time should be granted. I have decided to grant an extension of time to Mr Iliev to file his application and these are my reasons.

Extension of time

[4] Section 394(3) of the Fair Work Act 2009 (Cth) (Act) sets out the factors to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

•  the reason for the delay;

•  whether the person first became aware of the dismissal after it had taken effect;

•  any action taken by the person to dispute the dismissal;

•  prejudice to the employer (including prejudice caused by the delay);

•  the merits of the application; and

•  fairness as between the person and other persons in a similar position.

[5] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon”. The circumstances “need not be unique, or unprecedented, or very rare”.  2

Consideration

[6] Reasons for delay: Mr Iliev submits that he was dealing with the shock of having been dismissed. He was not aware that he was able to make an unfair dismissal claim because he was engaged as a contractor by the Circus (although there is a dispute about whether he was actually an employee). It is well accepted that neither the shock and distress of dismissal or one’s ignorance of the law or statutory timeframes would generally be exceptional circumstances. That is the case here. No additional time to make the application is warranted on this basis.

[7] If Mr Iliev was an employee rather than a contractor, the possibility that misrepresentations were made in this regard may give rise to an exceptional circumstance contributing to the delay. As that matter remains to be determined, however, I treat it here as a neutral consideration in fairness to the Circus.

[8] Separately, and on and from late November 2020, Mr Iliev was dealing with a significant life event, the details of which are before the Commission and are confidential. The nature of the event is likely to have contributed to the delay because it was, and remains, a matter that Mr Iliev is coming to terms with. I find that it is an exceptional circumstance. It weighs in favour of a grant of additional time.

[9] Whether the person first became aware of the dismissal after it had taken effect: Mr Iliev became aware that his relationship with the Circus had come to an end at the time the decision took effect. This matter is a neutral consideration.

[10] Any action taken by the person to dispute the dismissal: Mr Iliev wrote to the Circus on 21 December 2020 after receiving advice that his services were no longer required, expressing his deep disappointment and shock about decision. He then did not take action until prompted to seek advice from the Fair Work Ombudsman about whether he could make an unfair dismissal claim on the evening of 12 January 2021. Mr Iliev sought advice from the Ombudsman on 13 January 2021. He lodged his application the same day.

[11] On balance, there was a failure to take reasonable steps to protect his position after 21 December 2020 until the time for applying had passed. This weighs against the grant of additional time, although mitigating in Mr Iliev’s favour is what happened in late November 2020, which in part explains his inaction after that time.

[12] Prejudice to the employer (including prejudice caused by the delay): The Circus submits that it will be prejudiced if the claim proceeds because it is a not-for-profit organisation and other coaches have been appointed to take on the work that would otherwise have been given to Mr Iliev. The submissions do not establish relevant prejudice beyond what any employer would face in responding to an unfair dismissal claim, and there is a factual dispute about whether at least one of the coaches is newly appointed or not. The absence of relevant prejudice means that this is a neutral consideration.

[13] Merits of the application: The issuesin this case are whether there was an employment relationship between the parties (and so whether Mr Iliev can be said to have been ‘dismissed’) as well as whether Mr Iliev engaged in certain conduct justifying his immediate dismissal. I am not in a position to make findings about the merits of the case at this early stage in the proceedings. On its face, the record suggests that a misunderstanding between the parties may have led the Circus to act quickly to sever what was otherwise a longstanding relationship of value. The misunderstanding occurred in the context of the change in Mr Iliev’s personal circumstances, uncertainty about the legal status of the relationship and an ongoing discussion about the Circus’s superannuation obligations. Other relevant factors include Mr Iliev’s age, length of service and prospects for re-employment. On balance, the merits weigh in favour of an extension of time.

[14] Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant consideration in this case.

Conclusion

[15] For the reasons above, I find that there are exceptional circumstances such that on balance, a grant of additional time should be allowed to Mr Iliev to make his application.

[16] The time for making Mr Iliev’s application is extended to 13 January 2021.

[17] Directions for the further programming of the matter will be issued shortly.

COMMISSIONER

Appearances:

I Iliev on his own behalf.
A Chakrabarty of Bradley Allen Love Lawyers for the Respondent.

Hearing details:

2021.
Melbourne:
February 18.

Printed by authority of the Commonwealth Government Printer

<PR727335>

 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13].