“That apprentice cannot take me to the CCMA” are words that we hear so often from employers, however, are these employers factually correct?


Piet Du Plessis was appointed in terms of an apprenticeship programme at X Trucking and received a formal letter of appointment for 1 April 2020. The appointment letter further stated that Piet would be paid R5000.00 per month as a salary. However, due to the country going into a national lockdown on 26 March 2020, Piet received a letter stating that the appointment was put on hold due to Covid-19 on 24 March 2020.


On 15 June 2020 after numerous enquiries, Piet was advised that his appointment was cancelled due to budget constraints. Piet subsequently referred an unfair dismissal dispute to the CCMA. X Trucking  argued that Piet was not an employee but was merely appointed in terms of an apprenticeship programme and that there was no dismissal.


Firstly, it is clear that there was an appointment of some sort at least, as Piet received a formal appointment letter from X Trucking which stated that his service would commence on 1 April 2020.


In terms of section 213 of the LRA, an employee is any person, other than an independent contractor, who works for another person or who assists in conducting the business of an employer. Section 200A of the LRA further states that a person is presumed to be an employee if any of the following circumstances exist:

  1. The manner in which the person works or his hours of service are subject to the direction or control of another person;
  2. The person forms part of the organisation;
  3. The person has worked for the other person for an average of at least 40 hours per month for the last 3 months;
  4. The person is economically dependant on the other person;
  5. The person is provided with tools of the trade by the other person;
  6. The person only provides service to one person.


The above law applies to all workplaces with the exclusion of the Secret Service, National Intelligence Agency and the Defence Force.


In light of the above, it is clear that Piet met the requirements to be deemed an employee of X Trucking and as such the only question left was whether Piet was dismissed by X Trucking or not.


Section 186(1) of the LRA defines a dismissal as:

  1. An employer terminated a contract of employment with or without notice;
  2. An employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms, or did not renew it;
  3. An employer refused an employee to resume work after she took maternity leave;
  4. An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another;
  5. An employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee;
  6. An employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided for by the old employer.


In light of the above, it is thus clear that X Trucking had terminated Piet’s employment as Piet was informed per correspondence on 15 June 2020 that the apprenticeship programme, including his appointment, was cancelled due to budget constraints.


In the current situation, we must be guided by the case of Adreanis vs the Department of Health (2006, 5 BALR 461). In this matter, Ms. Adreanis was appointed as an intern at a state hospital. Four years later, she was told to vacate her post as her internship period had come to an end. She claimed unfair dismissal as she believed that she was an employee and that the end of her internship was irrelevant to her employment status.


The employer argued that she was a trainee and not an employee, that the CCMA had no jurisdiction to hear the matter as it was brought by a non-employee and lastly that Ms. Adreanis was not dismissed as her appointment had expired automatically when her internship period expired.


The arbitrator, however, found that:

  1. Adreanis was an employee in terms of the definition in section 213 of the LRA;
  2. Adreanis qualified as an employee in terms of all but one of the seven criteria contained in section 200A of the LRA;
  3. The Department of Health attempted to hide behind Ms. Adreanis’s internship;
  4. The dismissal was unfair;
  5. The employer had to re-instate the employee with full back pay.


When applying the above principal’s mutatis mutandis to Piet’s dispute, it is thus clear that Piet would be deemed to be an employee, that X Trucking attempted to hide behind the apprenticeship programme and that Piet was unfairly dismissed.


Employers are thus advised to apply the relevant labour law to employees employed in terms of apprenticeship programs in order to avoid adverse rulings at the CCMA. Employers are further encouraged to contact the Consolidated Employers Organisation to obtain expert legal advice in the labour field.


Article by: Gerhard Strydom

Dispute Resolution Official – Kimberley