Apprentice Termination and Supervision
A recent case involving the Training Skills and Development Act 2008 dealt with a dispute under a training contract.
An apprentice alleged he was not trained in new tasks and this caused arguments with the employer. The Apprentice Termination alleged the employer yelled at him for not working fast enough and for producing what he considered were poor-quality products; he unfairly changed his mind about him going on annual leave; and his shift was changed to commence at 2 am but as soon as he arrived, the employer would go to sleep in the office, leaving him to run the shift unsupervised.
On the morning the apprentice was to return to work from annual leave, the employer texted the apprentice and asked him to attend a meeting with himself at 11am that day. At the meeting, the employer indicated the arrangement was not working out and it would be in everyone’s best interest if he signed a Training Contract Termination form. The apprentice alleges he was intimidated into signing the form.
The Act provides:
“53—offence to exert undue influence etc in relation to training contracts
(2) A person must not exert undue influence or pressure on, or use unfair tactics against, a party to a training contract in relation to—
(d) the termination or suspension, or purported termination or suspension, of the contract.”
The evidence of the employer was that the apprentice was underperforming and constantly deceiving him. He said the apprentice was unwilling to listen and follow directions. He said at no time during the termination meeting was the Apprentice Termination intimidated, threatened or put under duress to sign the termination of his contract.
The employer did not agree that he left an apprentice alone working on the oven, but did accept he may have been in the office doing paperwork on some of the days. He denied ever leaving the store and leaving the apprentice alone on the oven.
The employer did not give the apprentice any written warnings but did give him verbal warnings. After giving the apprentice verbal warnings, his performance improved for a time, so he did not think a written warning was required.
Bullying and Harassment
The Commissioner could not find the apprentice had been bullied due to the lack of corroborating evidence.
Supervision of the apprentice was governed by the current Guidelines for Persons Who Supervise Apprentices or Trainees.
The guidelines state that first- and second-year apprentices must be under direct supervision with a supervision ratio of one supervisor to one apprentice. The Commissioner said where the apprentice is performing basic duties for three-hour periods at a time regularly, it would be highly unlikely the employer would be able to fulfil their agreed Training Contract Obligations in relation to providing the Apprentice Termination appropriate training.
All parties, when agreeing to enter into a Contract of Training, agree to abide by the written training contract obligations. Part of the obligations agreed to by the employer is to:
(a) Employ and train the apprentice/trainee as agreed in our Training Plan and ensure the apprentice/Trainee understands the choices he/she has regarding the training
I. Make sure the apprentice/trainee receives on-the-job training and assessment in accordance with our Training Plan…”
The Commissioner could not find the supervision was inadequate, but directed the employer to discuss the matter with the regulator.
Was the Termination Mutually Agreed?
When the employer contacted the apprentice to attend the meeting at 11am that day, he had an obligation to advise the apprentice the serious nature of the meeting. He only had to advise him that termination was a possibility or to tell him the meeting was serious and to consider bringing a support person with him. This would have given the apprentice an opportunity to have a support person attend or to get some advice. Without providing the apprentice prior warning of his intention to terminate him, he was denied procedural fairness.
The Commissioner formed the view that the apprentice did not willingly sign the mutual termination form and as a result, the termination of the training contract was unlawful.
The Training Contract obligations state the parties will try to resolve any dispute they have between them and if they cannot, they will contact the state or territory training authorities to request assistance.
By not attempting to resolve the issues between them or to bring the State Training Authority in to resolve this matter, the employer erred by meeting with the applicant in an attempt to get him to agree to terminate the training contact when he had already determined to terminate the apprentice. By doing this, the employer breached the training contract obligations.
The employer was ordered to pay to the apprentice the sum of $9,776, being 16 weeks’ wages.