Western Australian Industrial Relations Commission

Apprentice’s conduct not the cause of frustration

The Commission upheld an appeal by an apprentice against the decision of the Apprenticeship Office to terminate his training contract.  The Apprenticeship Office terminated the training contract because it was satisfied that ‘the purpose of the contract has been or will be frustrated by the apprentice’s acts or omissions.’  It said the apprentice’s conduct led to the employer standing him down, and this frustrated the purpose of the training contract.  Commissioner Emmanuel found that the employer’s act of standing the apprentice down rather than the apprentice’s acts or omissions frustrated the purpose of the training contract. 

The Vocational Education and Training Act 1996 specifically provides the Apprenticeship Office with an avenue to consider terminating a training contract for ‘serious misconduct’.  Commissioner Emmanuel found that the Apprenticeship Office did not explore that option. 

Commissioner Emmanuel held that ‘frustrated’ in the regulations must be given its ordinary meaning.  This interpretation is consistent with principles of statutory interpretation.  The finding contrasts with the doctrine of frustration which has a technical legal meaning that an obligation cannot be performed because of a supervening event beyond both parties’ control.  If the technical legal meaning of frustration is applied, the words ‘by the apprentice’s acts or omissions’ could not be given any effect, which is contrary to the principle of statutory interpretation that all of the words in legislation should be given meaning and effect. 

Commissioner Emmanuel also found that an appeal against a decision to terminate a training contract is ‘by way of rehearing’.  An appeal by way of rehearing means that the apprentice must convince the Commission that the Apprenticeship Office made a serious error of fact, had regard to an irrelevant consideration or did not have regard to a relevant consideration, and/or acted on a wrong principle in coming to the decision to terminate the training contract.  This finding also means that, ordinarily, the Commission will only consider evidence that was before the Apprenticeship Office when it made the decision. 

The decision can be read here.

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