02 March 2016

Your fee: Don’t be a victim of the unfair, irrational or deluded

I read, with some amusement, on industry news service, ShortList, of the Victorian lawyer, Monica Shamon who used a recruitment agency, Australian Staffing Agency, to hire a candidate (ASA were so good they found a suitable candidate within 24 hours) then attempted to evade responsibility for the placement fee.
 
The amusement comes from the fact that Ms Shamon, a lawyer (!), in attempting to worm her way out of said fee stated that she believed the service was ‘free’ because the agency was ‘publicly funded’ and she ‘hadn’t read’ the terms of the contract.
 
Embarrassingly for Ms Shamon the court heard how the agency was told by her office that the candidate ‘wasn’t suitable’ and the firm was ‘still looking’, when the candidate had already been offered employment by the firm. This lie is hardly the response of a person who genuinely believed they were in receipt of a free service.  
 
Thankfully, the presiding Victorian Civil and Administrative Tribunal (VCAT) officer found in favour of ASA. Shamon Lawyers is required to pay ASA the $6000 placement fee that is lawfully due to them.
 
It seems extraordinary that a lawyer, of all people, would allow a case such as this to get as far as a VCAT hearing. Actually I’m glad that it did. By this case going to VCAT we have the opportunity to understand how illogical and bizarre the behavior is, of some people who engage the services of a recruitment agency; it’s a salutary lesson for all recruiters.
 
It’s a lesson that was drummed into me in my very first days at Accountancy Personnel in London, way back last century. As we only ever took in jobs over the phone (visits just slowed up the whole process) it was imperative that we advised the client how our services were paid for and they verbally confirmed our terms. As there was no email back then we didn’t have the luxury of immediately sending a confirming follow up email.
 
Fast forward to 2016 and I frequently hear of consultants allowing themselves to be taken advantage of because they were careless or ignorant in gaining a clear agreement with the would-be client (remember, they are not a client until they have paid you!).
 
Let me remind you of the very comprehensive Principle 6: Certainty of Engagement in the RCSA (Aus & NZ) Code for Professional Conduct:

Members must take reasonable steps to ensure the certainty and scope of their engagement:
 
a) By a Client to provide an Employment Service – including but not limited to such matters as:
 
i. content of any Service Commitment or Service Charter offered in connection with the provision of the Employment Service;
ii. description of the specific service/s to be provided;
iii. deliverable or outcomes, including proposed dates and delivery times;
iv. fees and charges of the agreed services, including any temp-to-perm; contractor-to-perm; agency switching fee or similar fee arrangement;
v. outline of the client and Workseeker relationship management process;
vi. commitment to rapid and fair resolution of customer complaints or issues;
vii. explanation of any service guarantee and claims processing;
viii. description of any position required to be filled including the inherent requirements of the position and the extent to which the Client offers to make   reasonable adjustments to avoid unlawful discrimination and meet Equal Employment Opportunity responsibilities;
ix. any particular purpose for which the Employment Service is being required;
x. any reference, background, or suitability check required by the Client to be performed in respect of the position;
xi. disclosure of Client identity;
xii. disclosure of Workseeker information, assessment or valuation.
 
b) By a Workseeker – extending to agreement regarding all matters relevant to the Member’s representation of the Workseeker including:
 
i. Details of work conditions, the nature of the work to be undertaken, rates of pay and pay arrangements;
ii. The obtaining of any necessary consents, approvals, or permissions required from the Workseeker;
iii. The nature of any restraint imposed, directly or indirectly, upon the Workseeker with respect to the Workseeker obtaining further work.

This principle has been developed for your benefit. It is designed to protect you from your own haste and ignorance. I strongly recommend that you closely adhere to what the RCSA has outlined in this principle.
 
Any recruiter who starts work on any assignment before the client has agreed to the terms of business/engagement is asking to be taken advantage of.
 
Expecting a customer to be ‘reasonable’ or ‘rational’ or ‘fair’ is utopian in theory but foolish in practise.
 
Any person who has spent any amount of time involved in, or observing, potential or actual, litigation will tell you how unreasonable, irrational, unfair or deluded many, otherwise intelligent and successful people actually are when it comes to having to part with their money (or other assets); as Monica Shamon has amply demonstrated.
 
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