AREEA employee relations consultant Cara Spence reviews a recent Fair Work decision to uphold the dismissal of an apprentice conducting cash jobs, despite being two weeks short of completing his electrical apprenticeship.

ON 4 July 2013, Deputy President Gooley of the Fair Work Commission was set the task of determining whether electrical apprentice Timothy Monteith had been unfairly dismissed by employer Brandon Electrical Pty Ltd (‘the company) in accordance with section 394 of the Fair Work Act 2009.

The Facts

In 2012, the owner of Gleeco Pty Ltd (‘Gleeco’), a customer of Brandon Electrical for approximately nine years, approached the apprentice and offered cash in exchange for a series of three small jobs. The apprentice agreed to the cash jobs, but failed to inform his company about the work.

When the company became aware the apprentice was performing work for Gleeco on a cash-payment basis, a toolbox meeting was held in January 2013 to remind employees they were not permitted to perform electrical work on a private basis. Shortly after, on advice from the National Electrical and Communication Association, company director Mr O’Donoghue met with the apprentice, who acknowledged he had been performing the work for Gleeco, but claimed he had not used the company’s equipment and was unaware he was doing anything wrong. The apprentice was then dismissed with the company citing a loss of trust in the apprentice.

The Decision

During the hearing, the apprentice argued other employees performing cash jobs for Mr Gleeson had not had their employment terminated and that he was not warned his actions would lead to termination. The apprentice also insinuated that his termination was the result of impending increases on pay rates, following the completion of his apprenticeship two weeks following the incident. Finally, he argued that he only performed the cash jobs in an effort to support his partner and their baby.

Deputy President Gooley found no evidence supporting allegations of other employees performing unauthorised work, nor did he accept that the apprentice’s employment had been terminated ahead of a mandatory pay increase, stating that ongoing employment would not have been offered at the end of the apprenticeship if this was the case.

Deputy President Gooley took into account the apprentice’s honesty and his personal circumstances but found that the company was entitled to protect its business by terminating the apprentice’s employment, and that the termination in the circumstances was not harsh, unjust or unreasonable. Accordingly, the application was dismissed.

Implications for Employers

When it comes to terminating the employment of an apprentice, there are additional requirements that must be met when compared with terminating the employment of a “permanent” employee. An apprenticeship typically lasts four years, and in this respect, the engagement is of a fixed-term nature. In addition to an apprentice’s employment relationship being governed by the Fair Work Act 2009 (Cth), state-based legislation may also apply, depending on the location of the apprentice.

Business downturn or apprentice conduct may warrant termination of an employment relationship before the apprenticeship agreement reaches expiration. Often, this results in a former apprentice actioning disappointment in not receiving the skills to gain long-term employment at the end of their apprenticeship, as per expectation. More employers are being faced with unfair dismissal claims in the Fair Work Commission from disgruntled apprentices who seek reinstatement, re-employment or compensation for lost wages (including future wages).

For information about apprenticeships, contact AREEA Training and Development on 1800 591 662 or visit the Australian Apprenticeships website. If you require assistance with an unfair dismissal claim, or a breach of contract claim, contact AREEA on (07) 3210 0313.