Unfair dismissal risks reminder about apprentices and trainees

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Posted October 28, 2024

Under the Fair Work Act 2009 (Cth) (FW Act), an employee engaged under a training arrangement such as an apprenticeship or traineeship may be eligible to make an unfair dismissal application depending on how their employment comes to an end.

Unless the employment is limited to a specified period or limited to the duration of the training arrangement, and the employment ends at the end of that period or training arrangement, the apprentice or trainee may be able to access unfair dismissal remedies.

An apprentice or trainee will not be “dismissed” and therefore will not be able to make an unfair dismissal application if their employment ends at the end of the training arrangement. This is because the employer is not terminating the employment, it is ending because the training arrangement has reached the end of its specified period.

Relevant case

Ms Anderson was employed as a manager of a sandwich shop before she was offered a traineeship and entered into a training contract. Shortly after commencing the traineeship, she informed her employer that she did not want to continue the training arrangement, and her employer terminated her employment.

Ms Anderson submitted an unfair dismissal application, and her employer responded that she was not eligible to make such an application as she was employed under a training arrangement for a specific period of time as a trainee.

The decision

In this case, Ms Anderson had been employed on a permanent basis as the manager of the shop prior to commencing her traineeship. This meant that her employment was ongoing despite the termination of her traineeship, and she was able to pursue her unfair dismissal claim.

Lessons for employers

An apprentice or trainee may be able to make an unfair dismissal claim depending on how their employment ends.

To minimise this risk, employers must ensure that the employment and training contracts state that the employment is limited to a specified period of time or only for the period of the training arrangement.

There are situations where an apprentice will remain employed by the employer once they complete their apprenticeship. In such cases, the employee will have access to unfair dismissal if they are dismissed after the apprenticeship ends.  This is because their employment was no longer limited only to the duration of the training arrangement.

Legislation in most states and territories prevents employers from dismissing a trainee or apprentice during the period of the training arrangement, unless prior approval is obtained from the relevant state training authority.

Anderson v TDK Investment P/L ATF Frost Family Trust

Further advice

HABA members can call the HABA Advice Line on 02 9221 9911 for advice on any workplace relations matter.