LAW & HEADHUNTING (translation only)
Clients which cannot fill vacancies through insertions engage MPP Management & Personal Partner GmbH (MPP) to headhunt specialists or managers from other companies on behalf of them.
In principle, every employer must expect employees to terminate employment. This is just as much the essence of competition as is the fact that the more attractive supply on the labor market prevails. Every employee has the right to improve his economic situation.
What is allowed?
The wooing away of employees is generally permitted in accordance with the UWG. The following exemplary measures have been qualified as UWG compliant by case law:
· Offering more favorable working conditions with the help of a recruiter or headhunter;
· The instigation of ordinary termination, unless it conforms to unfair practices;
· A short contact at the employees workplace inviting him to a meeting;
· The methodical takeover of a larger number of employees, provided that no intention to cause damage occurs;
· The takeover of customers of the competitor, unless special circumstances arise which distort competition;
· The recruitment of employees to save training costs;
· The promise of the new employer to pay a possible contractual penalty for the employee who has been wooed away.
What is forbidden?
The wooing away of employees is unfair or fraudulent competition only if reprehensible means or abjectly goals are pursued. This has been affirmed by case law in the following exemplary cases:
· Systematic wooing away with the intention of affecting or damaging the competitors business;
· Carrying out a longer conversation at the employees workplace, which goes beyond a first contact;
· If the new employer essentially wants to obtain trade and business secrets with the takeover;
· When the employee is induced to change his employer by deliberately incorrect or misleading allegations;
· Wooing away through disparaging remarks about the employer or his company;
· Granting termination help.
The Supreme Court emphasizes that freedom of competition also includes the demand for employees. Companies have just as little claim to the employee headcount, as they have to a customer base.
It is therefore usually permissible to induce someone to terminate his employment relationship and to hire this person or to liaise an employment to this person.
Our Rules of Conduct as a Headhunter
MPP always fulfils all applicable laws and feels obliged to bonus mores. MPP does not accept orders from customers with the obvious intent to cause damage. MPP does not spread allegations or rumors. MPP does not hinder employers. MPP never stops employees from working after a short contact has been made.
(Sources: WKO, UWG, Supreme Court, 4 Ob 290/02d, 4 Ob 196/01d, 4 Ob 328/71, 4 Ob 54/88, 4 Ob 106/88, 4 Ob 121/94, 4 Ob 2345/96y, 9 ObA 231, 232/90, 4 Ob 121/94, etc.)