The blind side
Protecting vulnerable apprentice employees doesn’t have to be a guessing game.
Apprentices are some of the most vulnerable employees in the workforce. Not only are they dependent on their employer to provide them with the necessary training to complete their apprenticeship, but they are entirely new to the workforce and often don’t understand their rights as employees.
For these reasons, apprentices are often mistreated and sometimes unfairly dismissed. Sadly, many apprentices are unaware that they are protected by the unfair dismissal laws outlined in the Fair Work Act 2009, and they are eligible to make an unfair dismissal claim with the Fair Work Commission.
Protection from unfair dismissal
Section 382 of the Fair Work Act 2009 states that a person is protected from unfair dismissal if the person is an employee who has completed the minimum employment period i.e. 12 months for a small business or six months for any other business), and either earns less than the high income threshold ($133,000 from July 2014) or is covered by a modern award or enterprise agreement.
Section 385 of the Fair Work Act 2009 provides that a person has been unfairly dismissed if:
- The dismissal was hard, unjust or unreasonable;
- The dismissal was not consistent with the Small Business Fair Dismissal Code; and
- The dismissal was not a case of genuine redundancy.
Employers of apprentices sometimes operate under the misapprehension that the cancellation of an apprentice’s training contract does not constitute a ‘dismissal’ under the Act. However, this isn’t true, and assuming otherwise has legal ramifications for the business.
An apprentice whose engagement ends at the initiative of the employer during the life of the training contract is considered as dismissed by the employer. Therefore, the apprentice is eligible to make an application for an unfair dismissal remedy in the same circumstances as any other employee. However, an employer is under no obligation to continue to employ the apprentice at the expiry of the apprenticeship
Dismissing an apprentice
The protection offered to apprentices under the Fair Work Act 2009 does not mean that every dismissal of an apprentice will be rendered unfair. If an employer has genuine concerns with the performance or conduct of an apprentice, warns the apprentice about this unsatisfactory performance or conduct and provides the apprentice with a genuine opportunity to improve, the employer will be entitled to terminate the apprentice’s employment during the life of the training contract – if performance or conduct does not improve.
It is important for employers to understand, however, that by engaging an apprentice they are agreeing to provide that person with the necessary training and support to ensure they can be a productive member for the trade or profession in which they operate. Employers should therefore ensure that they provide the apprentice with every opportunity to successfully complete their apprenticeship and improve in any areas of perceived deficiency.
Ref: HRMonthly September 2015