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Learnership Contract of Employment and Termination

How to end Learnerships Legally

Employers who accept unemployed candidates for Learnerships need to provide them with a contract of employment for the duration of the training programme. A learner is also entitled to receive a certificate of service from employers if the learnership is terminated.

Extracted from the Department of Labour’s Sectoral Determination 5: Learnerships, this section includes the contract of employment, learner rights to information, record keeping and the termination of the learnership agreement.

CONTRACT OF EMPLOYMENT

  1. (1) A contract of employment concluded between an employer and a learner in terms of section 18(2) of the Act must –
  • be in writing and be signed by the employer and the learner;
  • be concluded when the learner commences employment; and
  • to the extent appropriate, contain the following particulars:
    • the full name and address of the employer;
    • the name of the learner and the learnership;
    • the place of work, and, where the learner is required or permitted to work at various places, an indication of this;
    • the date on which the employment began;
    • the learner’s ordinary hours of work and days of work, including the time that the learner is required to spend in study periods or theoretical learning sessions with the training provider;
    • the learner’s allowance or the rate and method of calculating the allowance;
    • the rate of pay for overtime work;
    • any other cash payments that the learner is entitled to;
    • any payment in kind that the learner is entitled to and the value of the payment in kind;
    • how frequently remuneration will be paid;
    • any deductions to be made from the learner’s remuneration;
    • the leave to which the learner is entitled;
    • the date when employment is to terminate;
    • a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the learner where a copy of each may be obtained.

(2) The learner must be supplied with a copy of the contract of employment.

(3) When any matter listed above changes-

  • the contract of employment must be revised to reflect the change;
  • the employer and the learner must initial the change; and
  • the learner must be supplied with a copy of the contract reflecting the change.

(4) If a learner is not able to understand the written contract, the employer must ensure that it is explained to the learner in a language and in a manner that the learner understands.

(5) A contract of employment in terms of this clause must be kept by the employer for a period of three years after the termination of the learnership.

Informing Learners of their Rights

  1. An employer must display at the workplace where it can be read by learners a statement in the prescribed form of the learner’s rights under this Act in the official languages, which are spoken in the workplace.

Record Keeping  

  1. (1) Every employer must keep a record containing at least the following information:
  • the learner’s name and learnership;
  • the time worked by each learner;
  • the remuneration paid to each learner;
  • the date of birth of any learner under 18 years of age.

(2) A record in terms of subclause (1) must be kept by the employer for a period of three years from the termination of the learnership.

(3) No person may make a false entry in a record maintained in terms of subclause (1).

Termination: What happens when it ends unhappily?

  1. (1) An employer may only terminate the contract of employment of a learner if–
  • the period of duration specified in the learnership agreement has expired;
  • the learner successfully completes the learnership;
  • the employer and learner have agreed in writing to terminate the learnership agreement, or if there is no such agreement the SETA which registered the agreement approves its termination; or
  • the learner is fairly dismissed for a reason related to the learner’s conduct or capacity as an employee.

PAYMENTS ON TERMINATION

  1. (1) On termination of employment, an employer must pay a learner-
  • for any paid time off that the learner is entitled to in terms of clause 10 (3) or 15 (3) and that the learner has not taken;
  • remuneration calculated in accordance with clause 20(2) for any period of leave due in terms of clause 19(1) that the learner has not taken.

Certificate of Service

  1. (1) On termination of employment a learner is entitled to a certificate of service stating-
  • the learner’s full name;
  • the name and address of the employer;
  • a description of any council or sectoral employment standard by which the employer’s business is covered;
  • the starting date and termination date of the learners’ employment with the employer;
  • a brief description of the training and work experience received by the learner;
  • the pay at date of termination;
  • if the learner so requests, the reason for termination of employment.

Disputes about Determination 5: Learnerships

  1. (1) Take the dispute to the CCMA by submitting a completed Form 7.11 published in terms of the Labour Relations Act 66 of 1995.

KEEPING OF THE DETERMINATION FOR LEARNERS

  1. (1) Every employer on whom this determination is binding must-
  • keep a copy of the determination available in the workplace at all times;
  • make the copy available for inspection by a learner; and
  • give a copy of the determination-

(i)     to a learner who has paid the prescribed fee; and

(ii)    free of charge, on request, to a learner who is a trade union representative or a member of a workplace forum.

                                                  ANNEXURE “A”
DETERMINATION OF TERMS AND CONDITIONS OF EMPLOYMENT FOR LEARNERS

 

READ THIS FIRST

 

 

 

WHAT IS THE PURPOSE OF THIS FORM?

 

This form is proof of learnership with an employer.

 

WHO FILLS IN THIS FORM?

 

The employer.

 

WHERE DOES THIS FORM GO?

To the learner.

INSTRUCTIONS

This form may be issued upon termination of learnership.

 

NOTE

 

The reason for termination of learnership must only be given if requested by the learner.

This is only a model and not a prescribed form. Completing a document in another format containing the same information is sufficient compliance with clause 32.

 

CERTIFICATE OF SERVICE

 

I ………………………………………………………………………………

(Name and designation of person)

 

of

 

…………………………………………………………………………………

(Full name of employer)

 

Address:  …………………………………………………………………

                  …………………………………………………………………

in the …………………………………..…………………………….. (Trade)

 

declare that

 

…………………………………………………………………………………

(Full name of learner)

 

…………………………………………………………………………………

(I.D. no.)

 

was in learnership

 

from …………………………….….. until …………………………………..

 

as

 

…………………………………………………………………………………

(Type of learnership)

…………………………………………………………………………………

any other information………………………………………………………..

 

On termination of learnership this learner was earning:  R……………….

 

…………………………..………………………………. (Amount in words)

 

„ per hour   „ per day   „ per week   „ per fortnight   „ per month   „ per year

 

……………………………………….          …………………………

Employer’s signature                                  Date

In terms of section 187(1)(e)  of the Labour Relations Act, 1995, the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act, 1995, includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract.


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Comments

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Comments (36)

  1. Dear Leonie

    I would like to find out what is the recourse for a person who had signed a 12 months Learnership Employment Agreement and then was dismissed for misconduct after serving 6 months. It turned out later after his dismissal that the Learnership Programme itself was rejected by HWSETA. The matter had already been referred to CCMA & scheduled for the 22 September 2017.

    Can he still pursue an unfair dismissal dispute at the CCMA

    Kind Regards

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