Candidatee liability clause opens can of worms for recruiters

FTW opened the proverbial can of worms when we learned that that some recruitment agencies operating within the freight sector were including a Candidate Liability Clause (CLC) in a candidate’s contract with the agency. This effectively allows an agent to institute legal action against a job seeker for reneging on an offer of employment, or resigning within 30 days' of starting a new job. The CLC does not fall within the Federation of African Professional Staffing Organisation's (Apso) Code of Ethics and is prohibited for Apso members. Jill Scott of Jill Scott & Associates told FTW she was aware of the CLC employed by some agencies specialising in freight sector recruitment but strenuously argues that it cannot be considered general practice. “This does not create a good impression of our industry. I believe mutual trust and loyalty should prevail and a candidate with a genuine problem should be open and honest in discussing it with the agent who placed them.” She adds that some agencies also restrict candidates from pursuing opportunities with their competitors. “What kind of standards are we setting as an industry?” she asks. Richard Raphael, managing director of Blue Oak Personnel, desn’t believe this is common practice among freight recruiters but adds that it is general practice in other industries. “It has proven effective in decreasing the risk of counter offers,” he says. “We can see the need for the clause. We spend our time representing a candidate in the job market who is not necessarily serious about changing companies, whereas we could be investing our time and energy in an individual who is really intent on moving on,” says Raphael. Anne Roets of Roets Management Recruitment says she can also understand why some agencies feel this clause is necessary due to the work involved, promises made and the resulting client dissatisfaction. “It has to be understood that in our industry we often do a lot of work with no reward. Recruitment agents who start up nowadays seem to think that recruitment is easy money – and when things don’t go according to plan, they can go the legal route.” However, says Roets, the client’s interests should always come first. “They pay us to supply a service and this includes managing the complications,” she says, noting that an experienced consultant should be able to prevent candidates from reneging or leaving a position through in-depth questioning and reference checking. Lee Botti, managing director at Lee Botti & Associates, says that her concern about the CLC is that the candidates often don’t understand the implications of what they’re signing. “They will sign something in good faith not realising that they could be sued for thousands, if not hundreds of thousands, of rands if they leave the company within a month,” she says. Botti adds that the CLC clause can affect the client as well. “If a candidate stays on in a new position simply to ride out a guarantee period, it can cost the client far more than if the candidate was free to renege, especially if resources are spent on training,” she told FTW. Natalie Singer, chief operating officer of Apso, says the CLC is banned by the industry body which promotes and ensures adherence to high ethical and professional standards of business. Candidates are encouraged to report any Apso member using a CLC. “The industry has been under extreme pressure over the past few years and the use of clauses like this would not help in promoting the industry as a profession,” she says. To protect themselves from unfair agency practices, Singer says clients should ensure that they have a good retention programme in place in order to keep their employees happy. They should also ensure that they work only with agencies who subscribe to a Code of Ethics (such as Apso) where they can seek recourse through the complaints mechanism. Standard recruitment industry practice dictates that agents will earn a percentage of the candidate’s annual salary as commission for a successful placement. Singer explains that if a candidate fails to start or leaves within the guarantee period (usually 90 days), the agency has to refund any fees paid by a client. INSERT & CAPTION If a candidate stays on in a new position, simply to ride out a guarantee period, it can cost the client far more than if the candidate was free to renege. – Lee Botti