In this series of articles, we have canvassed the concept of limited-duration contracts and the various legalities and nuances. For the purposes of this article, the focus will be on a slightly lesser-known type of limited duration contract, which is regulated in a different way and manner as opposed to the “ordinary” type of limited duration contract. A learnership program is a limited duration contract of employment whereby the learner obtains qualifications through work-based practical experience and learning programs. A learnership contract is governed in terms of Skills Development Act 97 of 1998 read with the Basic Conditions of Employment Act 75 of 1997 Sectoral Determination 5.
PARTIES IN A LEARNERSHIP CONTRACT
A learnership contract is concluded between an employer, learner, and an accredited training provider. The employer will be responsible for the costs of training unless otherwise covered in terms of the NQF. The agreement remains in force for the duration of the learnership program. When the learnership is completed between the employer and learner, it must be registered with the relevant Sectoral Education Training Authority (“SETA”). The registration will then be filed with the Department of Higher Education. The contract is signed by the learner or by the legal guardian of the learner if the learner is under the legal age of consent.
REQUIREMENTS FOR A LEARNERSHIP CONTRACT
As previously alluded to in this series S198B of the LRA sets out specific requirements for a limited duration contract. The requirements for a learnership contract, however, are different and are set out in section 27 of the Sectoral Determination 5, which provides the following:
27. (1) A contract of employment concluded between an employer and a learner in terms of section 18(2) of the Skills Development Act 97 of 1998 must –
a. be in writing and be signed by the employer and the learner;
b. be concluded when the learner commences employment; and
c. to the extent appropriate, contain the following particulars:
i. the full name and address of the employer;
ii. the name of the learner and the learnership;
iii. the place of work, and, where the learner is required or permitted to work at various places, an indication of this;
iv. the date on which the employment began;
v. 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;
vi. the learner’s allowance or the rate and method of calculating the allowance;
vii. the rate of pay for overtime work;
viii. any other cash payments that the learner is entitled to;
ix. any payment in kind that the learner is entitled to and the value of the payment in kind;
x. how frequently remuneration will be paid;
xi. any deductions to be made from the learner’s remuneration;
xii. the leave to which the learner is entitled;
xiii. the date when employment is to terminate;
xiv. 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.
TERMINATION OF THE LEARNERSHIP AGREEMENT
Just as limited duration contracts have specified processes or means in which they can be terminated or how they terminate, so do learnership contracts. Section 30(1) of the Sectoral determination provides that an employer may only terminate a learnership contract if;
a. The duration of the learnership has expired;
b. The learner has completed the learnership program;
c. The employer and learner agree in writing to termination or on the approval of a SETA under which the learnership is registered;
d. The learner was fairly dismissed for misconduct or incapacity;
Upon termination, the learner is entitled to a certificate of service which sets out;
a. The learner’s full particulars;
b. The description of the SETA under which the learnership was registered;
c. The commencement and end date of the learnership contract;
d. A description of the training and practical experience the learner had received;
e. The remuneration received by the learner;
Upon termination, the learner is entitled to all statutory money owed in terms of provisions of the Sectoral Determination, which includes;
a. Ordinary hours worked,
b. Over time,
c. Public holidays worked, and
d. Annual leave accrued.
DISPUTES ARISING OUT OF TERMINATION OF A LEARNERSHIP CONTRACT
Just as disputes arise out of ordinary limited duration contracts, disputes arise out of learnership contracts. In the ordinary course, a party may refer the matter to the CCMA under the guises of S186(1)(b) pertaining to an unfair dismissal relating to the employer failing to renew the limited duration contract when the employee had a reasonable expectation that same would occur.
Conversely, Section 33(1) of the Sectoral Determination provides that;
(1) A party dispute in terms of this determination may refer the dispute to the CCMA by submitting a completed Form 7.11 published in terms of the Labour Relations Act 66 of 1995.
(2) The party who refers a dispute in terms of subclause (1) must satisfy the CCMA that a copy of the referral has been served on all the other parties to the dispute.
In Mahasha v The Department of Transport – Limpopo, the South African Labour Court dealt with the status of a person who had concluded a learnership agreement in terms of the Skills Development Act, 1998 (“SDA“) and the ability of that person to refer a dispute to the CCMA.
The case confirmed that a learner may refer a dispute regarding the interpretation of the Skills Development Act to the CCMA. However, the CCMA lacks jurisdiction to determine a dispute in terms of the Labour Relations Act reserved for employees as it does not comply with the requirements of Section 213 definition of an employee.
Article by: Wesley Lazarus
Dispute Resolution Official – George