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Unfair dismissal — completion of apprenticeship

18 September 2009

Source:  Paul Munro, IR Consultant
WorkplaceInfo

Apprentices fall into a special category of employee and it is sometimes unclear as to the application of general employment law provisions, such as unfair dismissal.

This question was raised in an inquiry to WorkplaceInfo.

Q  We have an apprentice who will finally complete his apprenticeship in one month.

The apprentice’s period of employment has been adjusted a number of times since his commencement, mainly due to long-term absences from work. The four-year apprenticeship has taken approximately three months longer to complete than originally planned. Because of other issues such as poor performance and chronic absenteeism, we do not wish to take on the employee past the final date of his apprenticeship.

Because the reason for not continuing the employee’s employment is based on his performance during the period of the apprenticeship, will the employee be able to claim unfair dismissal?

A  There a number of categories of employees who are excluded from unfair dismissal laws under the Fair Work Act 2009.

Under s386 of the Fair Work Act, it states that a person who was employed under a contract of employment for a specified period of time, and the employment was terminated at the end of the period, is not deemed to have been dismissed and, therefore, cannot claim unfair dismissal.

Although the period of an apprenticeship may be shortened or lengthened, depending on the circumstances of each apprentice, the end of the ‘specified period’ of the apprenticeship is the completion date determined by the relevant apprenticeship authority.

In this case, if the employee is terminated on the day the apprenticeship is completed, the employee cannot claim unfair dismissal, regardless of the reasons for not employing the apprentice as a tradesperson. However, the situation may be different if the apprentice’s contract of employment guaranteed employment as a tradesperson.

Specified period of time

The Full Bench of the Australian Industrial Relations Commission (AIRC) consideredthis situation in a matter involving apprentices employed by Qantas Airways Ltd who were not taken on as tradespersons upon completing their apprenticeships.

The AIRC considered the apprenticeships to be that of a contract of employment for a ‘specified period of time’, but were not considered as a contract of employment for a ‘specified task’.

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