Thursday, April 22, 2021

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.

 

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.


More from Sectoral Determination 5: Learnerships

More Stuff

Tags: , , , ,

Related Article

34 Comments

Thabiso raboroko August 31, 2016 at 5:22 pm

Your comment goes here.I attend leanership at welkom PMI we sign a contract that says we will be paid R1500 but other leaners they get more money than other, and others they are not paid its being 3 months now no pay.

Thabiso raboroko August 31, 2016 at 5:26 pm

Your comment goes here.so what must i do if i not being paid?

    Leonie Hall September 2, 2016 at 4:20 pm

    Please read our articles on stipends and contact the SETA or the CCMA directly. Best wishes, Leonie

Phemelo Isaacs January 31, 2017 at 4:30 pm

I was part of an 18 month learner financial advisor program at PSG wealth .T his was a sales driven learnership and our monthly stipend was as follows

R10 000 from jan-april (plus commision)
R8000 from may – aug (plus commision)
R6000 from september – December (plus commission)
R3500 from January – March (plus Commision)
R1500 from april 2017 – july2017 (plus commission)

I had just graduated.
I was not meeting my sales targets and i was coming under pressure financially.
So resigned recently and they sent me an acknowledgement of debt for the allowance i have been receiving since the beginning of the leanership and the debt i will owe if i sign is R105000. How should i go about this becuase im unemployed and i dont know how i am going to repay this money

    Leonie Hall January 31, 2017 at 5:38 pm

    Hi Phemelo
    Wow! That’s unheard of. I’ll be emailing you to follow up on this matter!
    Warmest regards
    Leo

Mosili March 11, 2017 at 12:27 pm

Good day,I’ve been reading your 7Sundays blog because I want to understand how internship stipend work.

I signed a contract with EDTPSETA late last year for 16 January 2017 to June 2017. I’m a 4th year B.Ed student currently doing 6 months practicals at a local college hence the SETA contract.

Unfortunately I only found out when I was supposed to receive my stipend for January and February that my contact was unilaterally cancelled because I’m over 35 years even though they (SETA) said age will not be a problem when I signed.

Is there recourse for me to force them to honor the contract?

Thanks and I hope you can assist.

    Leonie Hall March 11, 2017 at 3:40 pm

    Hi Mosili
    Who cancelled your contract? SETAs don’t do contracts with individuals such as interns / students etc unless exceptional circumstances occur. A provider is therefor responsible for contractual arrangements and the onus would be on them to honour the contract even if the SETA withdraws funding. It’s also correct that your age should not disadvantage you

    Mosili March 11, 2017 at 5:36 pm

    Thanks for the reply.

    Our university had a deal with ETDPSETA to pay 4th year student teachers for 6 months practicals at different high schools. We signed contracts stating we will paid for 6 months. Those contracts had an age limit of 35. I enquired about it but they said it won’t be a problem. It was only now when age was used to no honor payment. Payment is made direct from ETDP SETA because we were asked to fax them monthly timesheets signed by schools we are practicing at, as proof of work done.

    When I enquired about non payment, they said their auditors will question why they paid people over 35.

    They simply. said they’re sorry but they can’t pay me. This means for 6 months I’ll be teaching like other student teachers but I won’t be paid like other student teachers.

Nomsa March 29, 2017 at 12:41 am

I applied for a Learnership in 2015, and i was called for an interview, i never attended the interview since then i get rejected when i apply for other Learnerships and they say I’ve participated in a Learnership before.

    Leonie Hall March 29, 2017 at 1:49 pm

    Hi Nomsa, thanks for your question. That doesn’t sound possible as you would have had to qualify and have your results posted on the National Learners Database for this to happen. If it has happened then someone has committed fraud. Please let me know if you can forward proof that a potential employer has rejected you for this reason and I’ll look into it. Cheers! Leonie

Iven April 17, 2017 at 1:09 pm

Hi there, I have a troubled some question to ask….I was doing an apprentice at a certain company and my supervisor and I never got into good terms then it happened that one day I was filling my time sheet after being away from work for two weeks during December holidays then on January when I came back I made a mistake on my time sheet that I was at work for one particular day of which I was not but I told the time sheet administrator about that day in questioning coz on other days I had a sick note for them so for that one I told her that I’ll make it annual leave so as I was busy with the leave form another supervisor from another department asked to speak to me urgently and I told him that I’ll come to him as soon as I’m finished with my time sheet but he refused and demanded that I talk to him in the boardroom leaving my time sheet book on the table with the admin lady … How ever the lady who happens to be friend with my devious supervisor approved my time sheet and notified her friend about it…after talking to the other supervisor in the boardroom my mind was excited from the news he had just told me coz he wanted me to work for him as he saw my potential and determination… We got out of the boardroom and I didn’t submit my time sheet of which I forgot of what I was doing before he called me…he mandated me on the spot to go work some where as im starting to report under him….two weeks later I was called and suspended from work about that time sheet and after a week from suspension I was dismissed. I asked for a service letter from the employer and it was January and now its April and the mean supervisor has poisoned the employer not to give me the service letter …I turned to the lawyers for help and the foned the employer and they also failed…he promises my lawyer that he will draft it and send and call me to collect it but even today its all lies and runarounds… What shocks me is that I have never committed any offence before and no pending case against me and this was just a premeditated case of which on my side it was just an honest mistake that happened but it resulted to dismissal verdict against me….the matter now is going for arbitration and all I wanted was service letter so that I can do a trade test as they failed to fulfill their obligation all because of one man who resort into taking matters personal if he can’t get his way….do they have the right to refuse wit the letter?

    Leonie Hall April 21, 2017 at 8:53 am

    Hi Iven, this sounds like a difficult situation for you.
    You wrote that the matter is now going to arbitration, is that with the CCMA? If it isn’t with the CCMA, then please go to them immediately and let them handle it.
    You should have a written statement from your employer stating precisely what the offence is.
    Respond to that politely and without arguing against it, in writing and include an apology.
    For example:
    Dear Sirs
    On 23 April I received notice stating that…. I wish to acknowledge the error of my conduct as I failed to submit documents correctly and wish to offer my sincere apology for the inconvenience caused. I would like to further state that the problems that resulted were unintentional and that I meant no harm.

    Losing the opportunity has been a hard lesson for me and I’ll still have to face the fact that finding my next job is going to be difficult. I would deeply appreciate it if you would consider the cancellation of my contract and dream job, along with the difficult job seeking process that lies before me, as adequate punishment.

    And so forth….think about what I’ve written, end this chapter and move on. Don’t let it hold you back, we all make mistakes growing up, but learn from it – don’t be a whiney loser who screws up and never owns what they did. Own it, deal with it and be a stronger, better person.

    Good luck! Let me know! 🙂

Ntombizovuyo nkata April 26, 2017 at 9:22 am

Hi in 28 March we had sign the learnership but we didn’t start working so will they paid us at the end of month

Emily May 11, 2017 at 6:53 am

Good morning i am Emily from pretoria i am in a learnership for confectionery at bake it easy company,i started this learnership on the 03 October 2016 is for 12 months only, so we have a big problem when it comes to stipend payment i want to know were should i report about this payment issue.

Kind Regards

    Leonie Hall May 11, 2017 at 9:58 am

    Hi Emily, as a learnership candidate the legislation – Sectoral Determination 5: Learnerships, views you as a protected employee of the company. As such, you are entitled to lodge a complaint at the CCMA and Department of Labour, with regards to any aspect of your contract. You can also report training providers to the Department of Higher Education. Best wishes, Leo

    Emily May 11, 2017 at 10:26 am

    Thank you!

Thabo May 19, 2017 at 10:27 am

Hi, I’m Thabo from Jhb, I was on a learnership from December 2014 and it expired in November 2015 that was when I was offered a contract to work as an employee, everything was going well and we have been asking about our learnership certificates and no progress took place as we were always given the runaround. It happened that I engage in a conflict with my superior resulting in me having to resign from the company, my resignation letter was acknowledged as I resigned via email, I haven’t received any communication with respect to my certificate and leave days. Who do I take this up with?

Lerat June 14, 2017 at 4:38 pm

I have been in a learnership for electrical fitter for 5 years and months, which should take 3 years. I was not responsible for the duration taking this long, the company was. After that much years now, I have completed my trade. The company suddenly wants to terminate my contract

Lerato June 14, 2017 at 4:46 pm

I have been in a learnership for more than 5 years which should have took 3 years. It was not my fault it took this long, it was the company’s, all of sudden the company wants to terminate my contract. Please.advice

    Leonie Hall June 20, 2017 at 2:36 pm

    Hi Lerato
    It’s difficult to advise without all the facts. You have a right to union representation and can lodge complaints at the DHET, CCMA, SETA and the DoL. Read our other articles for more information on this matter.
    Best wishes
    Leo

Donald July 5, 2017 at 7:53 am

hi there
I am doing a learnership so I want known if I will be employed or what?

William July 12, 2017 at 11:44 am

Please Assist we have been interns for 8 months now. and getting our stipends in time.and this month they are telling us that we cant receive our payments because they are still busy with our certificate verifications. is that process not suppose to be done before???

Seboi July 15, 2017 at 10:55 am

I’ve just signed a leanership programme. If i find a better job , how do i leave the learnership?

Sandile August 25, 2017 at 11:01 am

Hello

I would like to find out to what extent The Sectoral Determination 5: Learnership covers a learner employee?

A learner employee was dismissed when she had served 5 months of a 1 year learnership programm. She referred a dispute at the CCMA and now the date of the Arbitration is the 22 September 2017. The learnership is coming to an end in December 2017.

Can she be protected and re-instatement possible in this situation?

Regards

SSandile

    Leonie Hall August 25, 2017 at 11:40 am

    The actions she has embarked upon are correct.
    Unfortunately you don’t explain why she was dismissed so it’s hard to advise.
    The CCMA must investigate if the employer had reached a fair conclusion when they decided to dismiss her. Legally, a learner employee has the same rights as other employees.

    Does she want her job back and why?

    I doubt the company will accept reinstating her, they would rather pay her off and tell her to disappear as she may have embarrassed them by taking action. Depending on the situation, she may even have a bad attitude towards management and not trust them now.

    Please let me know what the CCMA outcome is.

    Regards
    Leonie

    Sandile August 25, 2017 at 12:15 pm

    Hello

    Thanks for quick reply.

    She was dismissed for misconduct. They didn’t follow procedures by not holding a hearing. She was just called to an office and issued with a termination letter.

    Thanks again.

    Leonie Hall August 25, 2017 at 12:19 pm

    It’s a pleasure!
    Ok, sounds like the employer would need to prove serious misconduct to dismiss on such short notice.

    regards
    Leonie

    Sandile August 25, 2017 at 12:23 pm

    She wants the job back because she wants to complete the qualification as it is going to be phased out next year. She’s was doing Community Health Work Level 4. They are attending classes and doing practicals in selected sites.

    She wanted the qualification more than anything as she resigned from previous employment for purposes of career advancement and the better prospects of employment in Health.

    We were worried that they might raise an impossibility to re-instate as the learnership is coming to an end. However there was another group that started in June (almost 4 months later). we might request them to put her on that group.

    Regards

Akhona September 6, 2017 at 7:38 am

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

Leonie Hall August 21, 2018 at 7:30 pm

It’s not legal!
Sectoral Determination 5 sections:
Section 7(5) An employer may not require or permit a learner – (a) to repay any remuneration.
Section7(6) An employer may not make any deduction from learner’s remuneration, or require a learner to repay any amount, in respect of any tools, materials, equipment… or training material required for the purposes of the learnership.

Liezelle December 30, 2018 at 1:34 pm

Hi

I am part of a learnership and we all been attending then rules change monthly almost. But the person that chopped and changed rules is no longer working there. I did not attend the office this month and was not paid however logged onto the online system and from my understanding you have 12 months to finish your learnership program and complete. Does not mean you not working if you skip few days etc. I haven’t been paid this month and need to know what steps do i take to receive payment and have assignment completed.

thank you

Khanyisa April 9, 2019 at 3:42 pm

Good day !
What actions to take when you’re absconded from learnership for not reporting off sick for a week and came back with a sick note explaining your absence and I’ve serve 11 months and next month is the last month , what to do please assis

Pingback: My Homepage

Sfiso Patrick Ncane August 15, 2019 at 2:30 pm

I am doing a Plumbing apprenticeship funded by CETA at eSayidi TVET college we signed a contract of three years and we were told to stop the learning till further notice because they have not received money from CETA all this time they we using the college money and the problems they have now is of not having money to pay us stipend we just started our second year can the author please advice on such a matter

Tell us what's up!

STOP EXPLOITATION

LATEST POSTS

PSG Youth hostages

PSG Youth hostages

June 29, 2020
Lock Down Breakfast

Lock Down Breakfast

March 25, 2020
Learnership Providers
Learnership or Apprenticeship?
Check college credentials
TVET Colleges in KZN

TVET Colleges in KZN

January 11, 2020

Facebook Reviews

9 months ago

Keep Climbing the NQF
It's vital #youth learn their rights when seeking employment. Recruiters who are not upfront about pay but ask questions about your wage expectations are unlawful. ...
View on Facebook
%d bloggers like this: