Nkulu Consulting Pty Ltd: TERMS AND CONDITIONS
- The headings to the clauses in this document are for the purposes of convenience and reference only and shall not aid in the interpretation of, or modify the provisions hereof.
- In these terms and conditions words importing any one gender shall include the other gender and words in the singular shall include the plural and vice versa and unless the context clearly otherwise indicates, the following expressions shall have the following meanings respectively and cognate expressions shall bear corresponding meanings.
- “Act” means the Guidance and Placement Act (Act 62 of 1982) as amended;
- “Applicant” means a work seeker as defined in the Act;
- “Client” means an employer as defined in the Act;
- “NKULU CONSULTING” means National Employment Center CC or any of its associated companies or close corporations.
- “Conditions” means the Terms and Conditions of Trade contained herein;
- “Fee” means the fee payable to NKULU CONSULTING by the Client, upon such Client having employed an Applicant, pursuant to the introduction of such Applicant to such Client by NKULU CONSULTING;
- “Introduction” means the solicited or unsolicited introduction of an Applicant to the Client by NKULU CONSULTING, by means of inter alia:
- the furnishing of a resume, or curriculum vitae pertaining to the Applicant, to the Client, at the request of the Client;
- the setting up by NKULU CONSULTING of an interview between the Applicant and the Client;
- the receipt by the Client of a resume, or curriculum vitae pertaining to the Applicant, delivered by NKULU CONSULTING by inter alia ordinary mail, registered mail, e-mail, telefax, hand delivery or any other means;
- “Salary” means the total annual salary to be received by an Applicant from an employer pursuant to an employment contract between them, and including basic salary, bonuses, commissions and fringe benefits of whatsoever nature, but excluding pension, retirement and medical aid benefits and provided that the said benefits are “non-contributory”.
- “Employment” means all and any work of whatsoever nature or description undertaken and carried out by an Applicant on behalf of a Client and whether such work is undertaken by such Applicant in his personal capacity or in a representative capacity and without derogating from the generality of the foregoing, undertaken on behalf of a corporation, company, partnership or association.
- “Permanent Employment” means the employment of an Applicant save where the Applicant is employed on a temporary or contracting basis, and shall be deemed to be permanent from the first date of physical commencement of employment irrespective of the terms of employment entered into between the Applicant and Client including but not limited to periods of probation.
- “Temporary Employment” means the employment of an Applicant upon NKULU CONSULTING’s terms and conditions relating to temporary employment and shall be deemed to be temporary from the first date of physical commencement of employment irrespective of the terms of employment entered into between the Applicant and the Client including but not limited to periods of probation.
- “Contracting” means the assignment of an Applicant to the Client upon NKULU CONSULTING’s terms and conditions of contracting, and shall be deemed to be such from first date of physical commencement of such engagement irrespective of the terms of assignment concluded between the Applicant and the Client.
- “Retained Search Recruitment” means the recruitment of an Applicant on behalf of Client and the subsequent employment of the Applicant by the Client upon NKULU CONSULTING’s terms and conditions of Retained Search Recruitment.
- “Advertising” means the marketing and advertising service provided by NKULU CONSULTING on behalf of the Client upon such terms and conditions of business.
- INTRODUCTION OF APPLICANTS
NKULU CONSULTING shall from time to time introduce Applicants to the Client pursuant to a
direct request by the Client to NKULU CONSULTING for such introduction, or at NKULU CONSULTING’s sole initiative. Pursuant to such introduction the Client may in its sole discretion, elect to employ an Applicant or accept an assignment of an Applicant.
- FEES PAYABLE IN RESPECT OF PLACEMENTS
- Upon the commencement of permanent employment of any Applicant by a Client whom such Applicant was introduced by NKULU CONSULTING, the Client shall effect payment to NKULU CONSULTING of a fee, calculated as a percentage of the Applicant’s annual salary, in accordance with the provisions of the schedule detailed in Clause 3.1.1.
- Salary up to R1 500 000.00, total cost to Company: Salary above R1 500 000.00 TCTC = 25% – 90 day guarantee:
|With 30 day Guarantee
- In the event of a dispute between NKULU CONSULTING and the Client as to the quantum of the annual salary package by a Client to an Applicant, then the fee payable to NKULU CONSULTING pursuant to the provisions of clause 3.1 shall be the greater of either:
- the Applicant’s salary including commission for a period of 12 (TWELVE) months immediately preceding the termination of his previous employment ; or
- the gross salary including commission which the Applicant may have earned had NKULU CONSULTING procured employment for the Applicant similar to his employment by the Client. For the purposes of this clause 188.8.131.52 the said gross annual salary shall be quantified by NKULU CONSULTING by taking into account the remuneration, market related trends and the Applicant’s position, qualifications, experience and previous employment history, and such quantification shall be final and binding on the parties.
- In addition to any amount payable by a Client to NKULU CONSULTING in terms of the provisions of clause 3.1, the Client shall effect payment, inter alia, to NKULU CONSULTING of: a further minimum amount of R2000 (TWO THOUSAND RAND) per month or such market related amount that NKULU CONSULTING deems fair and reasonable, and which amount can change from time to time, in respect of a company car; and such amount as specified by the Client in respect of any car allowance; a further amount of R850 (EIGHT HUNDRED AND FIFY RAND) per month in respect of any housing allowance provided to any Applicant by a Client as part of such Applicant’s salary package.
- In the event that any Applicant is employed by a Client in the circumstances envisaged in clause 3.1 and such Applicant does not commence permanent employment with the Client for any reason due to the Client’s liability or refusal for whatsoever reason to allow the commencement of such employment, in such event the fee payable to NKULU CONSULTING shall be an amount equal to 50% of the fee which would have been payable in accordance with the provisions of clause 3.1, had such Applicant commenced permanent employment.
- NKULU CONSULTING shall invoice the Client with such fee as may be due to it by the Client pursuant to the provisions of this clause 3 immediately upon the commencement date of the Applicant with the Client. Payment of the fee due to NKULU CONSULTING and as reflected on any such invoice shall be effected within 7 (SEVEN) days of the date noted on the invoice. The onus of ensuring that an invoice is procured by the Client in sufficient time to timeously perform its obligations in terms of this clause 3.3 shall at all times vest with the Client.
TEMPORARY OR HOURLY EMPLOYMENT
- Upon the presentation of NKULU CONSULTING’s invoice pertaining to the temporary employment of any Applicant by a Client to whom such Applicant was introduced by NKULU CONSULTING, the Client shall effect payment to NKULU CONSULTING upon NKULU CONSULTING’s terms and conditions relating to temporary employment, or as is agreed beforehand between NKULU CONSULTING and the Client.
CONTRACTING OR LIMITED DURATION CONTRACTS
- Upon the presentation of NKULU CONSULTING’s invoice pertaining to the assignment of an Applicant to the Client to whom such Applicant was introduced by NKULU CONSULTING, the Client shall effect payment to NKULU CONSULTING upon NKULU CONSULTING’s terms and conditions of contracting, or as is agreed beforehand between NKULU CONSULTING and the Client.
- NKULU CONSULTING GUARANTEE
- In the event the Applicant introduced to the Client by NKULU CONSULTING and employed by such Client gives notice to the Client, for whatever reason, or leaves the employ of the Client of his own volition and not by reason of being dismissed by the Client, the provisions relating to the replacement of an Applicant and the credit given to the Client under clauses 4.2 and 4.6 below do not apply.
- In the event that an Applicant introduced to the Client by NKULU CONSULTING and employed by such Client (hereinafter referred to as “the placement”) is dismissed by the Client by reason of the Applicant’s incompetence save where such dismissal relates to any personal failings of the Applicant (hereinafter referred to as “the dismissed Applicant”) ,and provided that:
- payment of NKULU CONSULTING’s fee has been effected timeously in accordance with the provisions of clause 3.3; and
- that such dismissal occurred within the relevant guarantee period detailed in clause 3.1.1 (hereinafter referred to as “the guarantee period”); and
- NKULU CONSULTING has received written notification from the Client of the dismissed Applicant’s dismissal within 14 (FOURTEEN) days of such dismissal, then NKULU CONSULTING shall utilize its best endeavors to provide an alternative Applicant (hereinafter referred to as “the Alternative Applicant”) as a replacement for the dismissed Applicant.
- The provision of such alternative Applicant by NKULU CONSULTING shall be free of charge provided that the job description required to be filled by such alternative Applicant is identical to the job description filled by the dismissed Applicant, provided that if such alternative Applicant is employed by the Client at a higher remuneration than at which the dismissed Applicant was employed, NKULU CONSULTING shall charge a fee proportionate to the disparity between the salary of the dismissed Applicant and the alternative Applicant, in accordance with the provisions of clause 3.
- In the event that NKULU CONSULTING’s fee in respect of the placement of the dismissed Applicant has not been paid in full and in accordance with the provisions of clause 3.3, then the provisions of this clause 4 insofar as they may impose obligations on NKULU CONSULTING shall not apply and NKULU CONSULTING shall not be obliged to perform in accordance therewith.
- The guarantee period in respect of any placement shall commence on the date on which an Applicant is employed by the Client and shall not be interrupted or novated by reason of such Applicant’s dismissal or by the employment of a replacement candidate.
- NKULU CONSULTING shall be afforded a reasonable period of time to procure an alternative Applicant to replace any dismissed Applicant. In the event that NKULU CONSULTING is unable to procure such an alternative Applicant, then the Client’s account with NKULU CONSULTING shall be credited (no refund shall be given) with an amount equal to:
- 50% (FIFTY PERCENT) of NKULU CONSULTING’s fee, if dismissal of the dismissed Applicant occurs within 30 days of such dismissed Applicant’s employment where the Client qualifies for a 30 day guarantee in accordance with the provisions of 3.1.1.
- A credit as mentioned in clause 4.6 above must be utilized within 6 (SIX) months of date being granted, failing which it will thereafter be automatically forfeited.
- In the event that an Applicant is dismissed by the Client prior to such Client having affected payment in full of the fee due to NKULU CONSULTING in respect of the placement of such Applicant, then in that event, the Client shall nevertheless be liable to effect payment to NKULU CONSULTING of its fee. NKULU CONSULTING shall not be obliged to perform in terms of the provisions of this clause 4 until it has received payment of such fee.
- In the event that the Client employs an Applicant introduced to such Client at any time within a period of 12 (TWELVE) months from the date of such introduction, and notwithstanding that such Applicant may previously have refused or been refused such employment, and furthermore notwithstanding that such Applicant may have responded to a recruitment advertisement placed by the Client in respect of such employment, then nevertheless, the employment of the Applicant shall be deemed to have come about as a result of NKULU CONSULTING’s introduction, and NKULU CONSULTING’s fee payable in terms hereof by virtue of such introduction shall be paid within seven days from the date of receipt by the Client of Nkulu Consulting’s invoice.
- In the event that NKULU CONSULTING introduces an Applicant to the Client, which Applicant has been interviewed by such Client on an occasion prior to the introduction of the Applicant to the Client by NKULU CONSULTING, and such Applicant is employed by the Client subsequent to such introduction, then the employment of the Applicant shall be deemed to have come about as a result of NKULU CONSULTING’s introduction and NKULU CONSULTING’s fee payable in terms of hereof by virtue of such introduction shall be paid within seven days from date of receipt by the Client of NKULU CONSULTING’s invoice.
- In the event that the Client furnishes any third party with any information relating to an Applicant introduced to the Client by NKULU CONSULTING, or in the event that a Client refers or introduces an Applicant introduced to the Client by NKULU CONSULTING, to any third party, and in either of those events the third party employs the Applicant, or causes the Applicant to be employed by any other party within a period of twelve months from the date of the furnishing of such information or referral or introduction by the Client, then the Client shall be liable to effect payment to NKULU CONSULTING of such fee as would have been payable to NKULU CONSULTING in terms hereof, had the Client employed the Applicant.
- In the event that the Client employs an existing employee of NKULU CONSULTING, the Client shall be liable to pay NKULU CONSULTING a fee equal to 50% of the annual package (on target earnings).
- No variation, alteration or cancellation of these terms and conditions shall be of any force of effect unless reduced to writing and signed by the parties or their duly authorized representatives.
- No relaxation or indulgence which NKULU CONSULTING may show a Client shall in any way prejudice or be deemed to be a waiver of NKULU CONSULTING’s rights hereunder.
- NKULU CONSULTING and the Client consent to the jurisdiction of the Magistrate’s Court in respect of any matters incidental to or arising out of the provisions hereof notwithstanding that the value of the matter in question may exceed the jurisdiction of such Court. NKULU CONSULTING may however at its sole option, institute action out of any appropriate division of the High Court of South Africa.
- All costs and disbursements including costs of stamp duty hereon (if applicable) and all legal costs on the Attorney and Client scale incurred by NKULU CONSULTING in inter alia tracing a Client and in collecting or endeavoring to collect all or any amounts payable by the Client to NKULU CONSULTING in terms hereof or otherwise, and all collection commission and all other fees and charges, shall be for the account of the Client.
- A certificate under the hand of any Director/Member of NKULU CONSULTING in respect of indebtedness of the Client to it, or in respect of any other fact, shall be prima facie evidence of the Client’s indebtedness to NKULU CONSULTING and prima facie evidence of such other fact.
- In the event that any amount payable by a Client to NKULU CONSULTING is not paid promptly on due date (7 days from date of invoice), then in addition to any other remedies afforded to NKULU CONSULTING, such amount shall attract interest at a rate equal to two percent over the prime rate, from due date to date of payment. For the purposes of this clause 9.6 “prime rate” shall mean a rate of interest per annum which is equal to the Standard Bank of South Africa Limited’s minimum lending overdraft rate of interest per annum, compounded monthly in arrears, charted by the said Bank on the unsecured overdrawn current accounts of its most favoured Corporate Clients in the private sector from time to time, as certified by any Manager of any branch of the said Bank, whose decision shall be final and binding on the parties. 1ST MARCH 2018