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Can an apprentice make an unfair dismissal claim?

If you terminate an apprenticeship, what rights does the apprentice have? This article looks at unfair dismissal rules and how they apply to apprentices.

Sometimes an employer may terminate a worker’s apprenticeship due to unsatisfactory performance. Can the apprentice claim unfair dismissal in the Fair Work Commission?

Apprentices and unfair dismissal

Apprentices have the jurisdiction to have their unfair dismissal application dealt with by the Fair Work Commission.The Fair Work Act (386(2)(b)) states that a person has not been dismissed if the person was an employee:

(i) to whom a training arrangement applied, and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement, and

(iii) the employment has terminated at the end of the training arrangement.

If an apprenticeship ends, say, after two years, it did so because the employer dismissed the apprentice, not because the term of the apprenticeship had ended. The apprenticeship was terminated at the initiative of the employer. The apprentice can therefore seek a remedy for unfair dismissal before the Fair Work Commission.

This scenario was envisaged in the Explanatory Memorandum to the Fair Work Bill 2008 (Paragraph #1538] which states that the relevant section of the Fair Work Act “does not prevent trainees and apprentices from seeking a remedy if they are dismissed during the life of the traineeship or apprenticeship”.

The Fair Work Act is intended to cover competency-based training arrangements that have a nominal end date, which can be altered in line with an employee’s competency, but that still limits the person’s employment to the duration of the training arrangement.

See S v JS Plumbing Pty Ltd T/A Salmon Plumbing [2011] FWA 7076 (21 October 2011)

State/territory training laws

State or territory ‘training arrangement’ laws are exempt under the Fair Work Act (s27). These are laws which relate to the registration and administration of training contracts, such as apprenticeships and traineeships, in the relevant jurisdiction.

Generally, a training contract can only be terminated through the relevant state or territory training service. A ‘training arrangement’ applies to both an apprenticeship and a traineeship.

Notice requirements

Subject to any ancillary notice requirements under the terms of an applicable modern award or enterprise agreement, the National Employment Standards (s117) require an employer to give an apprentice notice of termination or payment in lieu of notice. The minimum notice of termination requirements under the NES do not apply where an apprentice is terminated at the completion of their apprenticeship.

The bottom line: Unfair dismissal law applies to an apprentice terminated during the life of the apprenticeship, but not if the apprentice is dismissed at the completion of the period of the apprenticeship. 

Apprenticeship Support Australia

The Apprenticeship Support Australia team offer free over the phone advice and online tools to help you find, register, onboard and manage an apprentice or trainee in your business.

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