Daniel McManus v Catholic Schools Broken Bay - [2024] FWC 3132

[2024] FWC 3132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel McManus
v

Catholic Schools Broken Bay

(U2024/7743)

COMMISSIONER CRAWFORD

SYDNEY, 13 NOVEMBER 2024

Unfair dismissal application – jurisdictional objection alleging minimum employment period not completed –– whether casual service was regular and systematic – minimum employment period completed – jurisdictional objection dismissed.

BACKGROUND

Catholic Schools Broken Bay (CSBB) is a network of 45 schools across the Central Coast, Sydney’s Northern Beaches, and Sydney’s North Shore. Daniel McManus has worked as a teacher for CSBB on a casual and part-time basis for several years at various schools. On 30 January 2024 Mr McManus commenced a period of temporary part-time employment with CSBB working at St Patrick’s Catholic Primary School, East Gosford. Mr McManus was contracted to continue working on a part-time basis until 30 January 2025. After working as a part-time employee for around four-and-a-half months Mr McManus was dismissed by CSBB on 14 June 2024 for alleged serious misconduct. At the time of Mr McManus’ dismissal CSBB employed approximately 2500 staff. The minimum employment period that Mr McManus was required to serve to be eligible to make an unfair dismissal application was six months.[1] Mr McManus therefore needs to rely on parts of his earlier casual employment to meet the six-month minimum employment period. This decision concerns whether Mr McManus had completed the minimum employment period when he was dismissed on 14 June 2024.

I issued directions for the filing of material regarding CSBB’s jurisdictional objection and listed that issue for determinative conference/hearing via Teams on 16 October 2024. I granted permission for both parties to be represented on the basis I was satisfied that would enable the matter to be dealt with more efficiently. Mr McManus was represented by Warwick Ryan from Hicksons Lawyers. CSBB was represented by Danny Klepac from Augmena. The parties agreed with my view that it was appropriate to conduct a hearing in relation to the jurisdictional objection.

I raised an issue during the hearing regarding whether any previous periods of casual employment back to 2016 should be considered in determining whether Mr McManus completed the minimum employment period, or whether the assessment is confined to the six months immediately prior to the dismissal. The parties provided further written submissions on this issue after the hearing. Mr McManus also filed additional evidence in the form of a statement of service dated 8 July 2024. CSBB opposed the admission of this further evidence on the basis that Mr McManus’ evidence was concluded during the hearing, and I had only provided the parties with an opportunity to file further submissions on the discrete legal point. I accept that submission. I will not take the statement of service in consideration for the purposes of this decision. The statement of service is relevant evidence that should have been filed by the parties ahead of the hearing in accordance with my directions.

MATERIAL FILED

CSBB

CSBB relied on a witness statement from Scott Cooper (Senior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 3132
Decision Date: 13 NOVEMBER 2024

CaseChat Overview and Summary

Daniel McManus filed an unfair dismissal application against Catholic Schools Broken Bay (CSBB), a network of schools across the Central Coast, Sydney’s Northern Beaches, and Sydney’s North Shore. Mr McManus, who has worked as a teacher for CSBB on a casual and part-time basis, was dismissed on 14 June 2024 for alleged serious misconduct. The minimum employment period required for Mr McManus to make an unfair dismissal application is six months. He needs to rely on parts of his earlier casual employment to meet this six-month minimum employment period. The jurisdictional objection raised by CSBB was that Mr McManus had not completed the minimum employment period. The Commission needed to determine if Mr McManus had completed the minimum employment period when he was dismissed on 14 June 2024.

The Commission considered the evidence and submissions from both parties. It was established that Mr McManus was continually employed by CSBB from when his casual engagements recommenced in 2016 until his dismissal on 14 June 2024. The Commission found that Mr McManus had a reasonable expectation of continuing employment on a regular and systematic basis during certain periods of his casual employment. Specifically, the evidence showed that during August, September, October, November, and December 2023, CSBB regularly offered suitable work to Mr McManus at times when the relevant schools knew that he was available, and work was offered and accepted sufficiently often that it could not be regarded as occasional or irregular. Mr McManus worked around 73% of the days that CSBB’s schools were open during these months. Consequently, the Commission concluded that Mr McManus had completed the minimum employment period of six months at the time of his dismissal. The Commission dismissed CSBB’s jurisdictional objection and found that Mr McManus’ unfair dismissal application would proceed.

This decision highlights the importance of the regularity and systematic nature of casual employment in determining an employee’s continuous service and eligibility for unfair dismissal protection. The Commission's ruling underscores that the assessment of continuous service should consider the totality of an employee's engagements with an employer, not just the periods immediately preceding the dismissal.

Orders