1
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
[1] 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.
[2] 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.
[3] 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
[2024] FWC 3132
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3132
2
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
[4] CSBB relied on a witness statement from Scott Cooper (Senior Executive: Human
Resources) dated 23 September 2024. Mr Cooper gave evidence that casual employees are
utilised by CSBB to cover teacher absences. Mr Cooper’s statement had the following
documents attached:
• A summary of Mr McManus’ casual engagements from July 2023 to March 2024.
• A copy of Mr McManus’ temporary part-time employment contract dated 22 January
2024.
• A copy of the Catholic Schools Broken Bay Enterprise Agreement 2023 (Agreement).
[5] I marked Mr Cooper’s statement Exhibit R1. Mr Cooper was not required for cross-
examination.
[6] CSBB also filed a copy of a casual contract of employment between Mr McManus and
CSBB dated 1 February 2022. Mr McManus did not recall seeing this contract and objected to
the contract being admitted into evidence. I decided to admit the contract into evidence, taking
into account that Mr McManus does not recall seeing the contract when determining how much
weight to place on the contract. The contract was marked Exhibit R2.
[7] CSBB relied on submissions dated 20 September 2024 and 1 November 2024. Mr
Klepac made oral submissions during the hearing. I have considered all the submissions.
Mr McManus
[8] Mr McManus provided a witness statement dated 4 October 2024. Mr McManus gave
evidence about his casual employment with CSBB since 2016. Every weekend Mr McManus
would send a text message to the Assistant Principal, or the staff member that manages casual
rostering, with his availability for work. The schools would respond over the weekend to advise
if they had any work for Mr McManus in the following week. Mr McManus would occasionally
be booked ahead for shifts in advance. Mr McManus would also occasionally make phone calls
to schools to discuss whether they had any work available. Mr McManus stated he was
confident of receiving at least some amount of casual work each week and that his wife was
able to work part-time as a result. Mr McManus’ statement had the following documents
attached:
[2024] FWC 3132
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• An example of text messages Mr McManus would send to arrange his casual shifts.
Mr McManus provided screenshots of text messages exchanged between himself and
Chris Franklin (Assistant Principal – St Patricks Primary School East Gosford) on 10
to 12 September 2023. Mr McManus also provided copies of messages exchanged
with representatives from two other schools in August, October, and December 2023.
• A copy of Mr McManus’ group certificate for the 2023/24 financial year concerning
his work for CSBB. Mr McManus earned a total of $59,321.02 gross during the
financial year.
• A summary of payments made by CSBB into Mr McManus’ bank account from 9
August 2023 to 27 December 2023.
[9] I marked Mr McManus’ statement Exhibit A1. Mr McManus was cross-examined
during the hearing. This revealed that Mr McManus also operates a business connected to
surfing which generated minimal income during the 2023/24 financial year.
[10] Mr McManus also relied on a copy of his termination letter dated 14 June 2024. I marked
the termination letter Exhibit A2.
[11] Mr McManus relied on submissions dated 4 October 2024 and 25 October 2024. Mr
Ryan made oral submissions during the hearing. I have considered all the submissions.
STATUTORY PROVISIONS
[12] The meanings of “service” and “continuous service” are relevant to assessing whether
an employee has completed the minimum employment period. Section 22 of the Fair Work Act
2009 (FW Act) relevantly states:
“(1) A period of service by a national system employee with his or her national system
employer is a period during which the employee is employed by the employer, but does
not include any period (an excluded period ) that does not count as service because
of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2 - 2 (which deals with
community service leave); or
(ii) a period of stand down under Part 3 - 5, under an enterprise
agreement that applies to the employee, or under the employee's contract
of employment; or
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s30a.html#subsection
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#service
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#applies
[2024] FWC 3132
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(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee's continuous
service with his or her national system employer, but does not count towards the length
of the employee's continuous service…”
[13] The issue of whether periods of casual employment are counted when assessing an
employee’s period of employment is addressed in s.384 which relevantly states:
“(1) An employee's period of employment with an employer at a particular time is the
period of continuous service the employee has completed with the employer at that time
as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards
the employee's period of employment unless:
(i) the employment as a casual employee was as a regular casual
employee; and
(ii) during the period of service as a casual employee, the employee had a
reasonable expectation of continuing employment by the employer on a
regular and systematic basis…”
AUTHORITIES
[14] The ACT Court of Appeal has previously confirmed in Yaraka v Giljevic that it is the
casual employee’s engagement that must be regular and systematic, not the hours worked
pursuant to the engagement.2 The reasoning of the Court of Appeal in that matter was endorsed
by a Full Bench of the Commission in Chandler v Bed Bath N’ Table Pty Ltd.3
[15] The Full Bench in Shortland v The Smiths Snackfood Co Ltd4 made the following
important points about how casual employment is assessed under the FW Act:
• The effect of s.384 of the FW Act is that casual employment does not start and end
with each engagement as understood in the common law.
• It is common for casual employees to transition between intermittent engagements and
regular and systematic engagements during the course of their casual employment.
• A period of continuous service can be made up of a series of periods of service, some
of which count towards the period of continuous service and some which do not.
[2024] FWC 3132
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• A period of continuous service by a casual employee is broken only when the
employer or employee make it clear to the other party that there will be no further
engagements.
[16] In Ponce v DJT,5 Commissioner Roe identified that where there is not a clear pattern or
roster of hours and days worked or clear agreed engagements, a regular and systematic
engagement can still be found where the evidence establishes that:
• the employer regularly offers work when suitable work is available at times when the
employer knows that the employee has generally made themselves available; and
• work is offered and accepted sufficiently often that it could no longer be regarded as
simply occasional or irregular.
[17] Commissioner Roe also identified that:
• Periods of casual employment can be added to periods of full-time or part-time
employment when calculating the period of employment.
• Where the minimum employment period is six months, it is not only casual
engagements during the six months prior to the dismissal taking effect that can be
considered. Prior periods of casual employment can be considered as long as the
period of continuous employment has not ended.6
CONSIDERATION
[18] I consider the evidence clearly establishes that Mr McManus was continually employed
by CSBB from when his casual engagements recommenced in 2016 until when he was
dismissed on 14 June 2024.7 That does not mean that Mr McManus had around eight years of
continuous service at the time of dismissal. Mr McManus’ period of continuous service is to be
determined by adding any periods of part-time or full-time employment to any periods of casual
employment that can be characterised as regular and systematic for the period of 2016 to 14
June 2024. The relevant periods would be added together to determine Mr McManus’ total
period of employment. Given I have refused to admit the document purporting to be Mr
McManus’ statement of service into evidence, neither party has provided evidence that would
allow me to determine Mr McManus’ total period of continuous service between 2016 and 14
June 2024. As a result, I could not uphold CSBB’s jurisdictional objection and dismiss Mr
McManus’ application even if I find Mr McManus has not completed the minimum
employment period on the evidence before me. The appropriate approach would be to seek
further evidence from the parties that would enable me to undertake the required assessment
for the period of 2016 to 14 June 2024. However, for the reasons that follow, that will not be
necessary in this case.
[19] It is not disputed that Mr McManus clearly has a period of continuous service for the
period that he was engaged for a part-time employee from 30 January 2024 to 14 June 2024.
[20] I am comfortably satisfied on the evidence that Mr McManus was a casual employee
with a reasonable expectation of continuing employment on a regular and systematic basis in
[2024] FWC 3132
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August, September, October, November, and December 2023. It is clear that during these
months:
• CSBB regularly offered suitable work to Mr McManus at times when the relevant
schools knew that he was available; and
• work was offered by CSBB and accepted by Mr McManus sufficiently often that it
could not be regarded as occasional or irregular. Mr McManus worked around:
- 17 of the 23 non-school holidays days in August 2023.
- 12 of the 16 non-school holiday days in September 2023.
- 10 of 17 non-school holiday days in October 2023.
- 18 of the 22 non-school holiday days in November 2023.
- 8 of the 11 non-school holiday days in December 2023.
In these months, Mr McManus worked on 65 of the 89 days that the school was
operating, that is 73% of the school days.
[21] I do not accept Mr McManus’ casual engagements with CSBB can be described as
occasional or irregular when Mr McManus performed work on 73% of the days that CSBB’s
schools were open from August to December 2023.
[22] I do not consider any term in Mr McManus’ contract, or the Agreement, can justify a
conclusion that Mr McManus’ casual engagement was not regular and systematic in accordance
with the established principles regarding the operation of s.384 of the FW Act. Even if Mr
McManus was engaged in a manner which is inconsistent with the Agreement, that would not
alter the operation of s.384 of the FW Act.
[23] I find Mr McManus had at least 9 months of continuous service with CSBB. Mr
McManus had completed the minimum employment period of 6 months when he was dismissed
on 14 June 2024. Mr McManus was a person protected from unfair dismissal.
[24] CSBB’s jurisdictional objection is dismissed.
[25] Mr McManus’ unfair dismissal application is listed for Mention via video at 1:00pm on
Tuesday, 19 November 2024. A notice of listing will be issued in due course.
COMMISSIONER
THE SEAL MISSION THE FAIR WORK COM
[2024] FWC 3132
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Appearances:
Mr Ryan representing Mr McManus.
Mr Klepac representing CSBB.
Hearing details:
2024.
Sydney (by video via Microsoft Teams).
16 October.
Final written submissions: 1 November 2024.
Printed by authority of the Commonwealth Government Printer
PR781213
1 Section 383 of the FW Act. CSBB is not a “small business employer” as defined in s.23 of the FW Act.
2 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339 at [65].
3 [2020] FWCFB 306 at [11]-[13].
4 Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [10] to [13].
5 Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078 at [76].
6 Ibid at [81].
7 Exhibit R1 at [8].
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb306.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5709.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa2078.htm
