dissenting.
I respectfully dissent. I would affirm the trial court’s grant of summary judgment to Diversitech Corporation in Robert Half of Atlanta, Inc.’s suit for a fee for services pursuant to the oral agreement for placement of a “qualified” employee.
Robert Half is seeking to be paid a fee for a service which it did not perform. Diversitech’s principal requirement was for an employee qualified to manage other employees, i.e., “of managerial quality,” and with certain computer education and expertise. On September 20, 1990, Robert Half proffered a Ms. Walker as being “right on the money.” Although the majority finds that the meaning of “starting of employment” (which fixed Robert Half’s right to a fee) is ambiguous and . that a question of fact exists as to whether Walker actually “started employment” with Diversitech, and as to whether the agency’s fee was contingent on the placed person’s passing the physical exam and drug test administered by Diversitech, it is undisputed that Diversitech’s standard procedure as testified to by Diversitech required the candidate to report to Diversitech on a probationary basis and undergo a physical examination including drug tests. It is not disputed that four days after Walker reported to Diversitech, she completed a “standard application for employment,” which stated: “I understand that any offer of employment is contingent upon passing a pre-employment physical examination as it pertains to the requirements of the job.” Less than a month later, a drug test which proved positive for cocaine and marijuana resulted in her being released from her probationary status.
Although Diversitech did not expressly state a requirement to Robert Half of Atlanta, Inc. that the candidate be screened for illicit drug use, it cannot be disputed that inasmuch as Walker used illicit drugs she was not “of managerial quality” and was not “right on the money.” Robert Half could not reasonably represent her as such unless it had made an inquiry as to possible drug use. It is prevalently known that use of illicit drugs is an overwhelming problem in society in general and is a blatant disqualification of those seeking positions to manage others in an employment setting. That such a problem might exist and the certainty that it would disqualify the person for employment in a managerial capacity are well known to any business which is in the business of placing “qualified” employees for others.
The fact that the parties did not “express” this condition as a qualification of employment is therefore not conclusive. An implied term in an agreement exists where it is reasonable and necessary to *430effect the full purpose of the contract and is so clearly within the contemplation of the parties that they deemed it unnecessary to state. Ellis v. Brookwood Park Venture, 161 Ga. App. 242, 243 (288 SE2d 308). Naturally, an employment agency cannot warrant that a person does not use illicit drugs; this is not a thing which can be guaranteed by anybody, since one who uses illicit drugs may conceal the fact and might contrive to pass a drug test given by the agency and then indulge her habit after being placed by the agency and accepted by an employer. This is obviously why Diversitech administered its own drug test while keeping the employee on a probationary status before actually hiring her. Therefore, the fact that Diversitech administered its own drug test does not relieve the agency of a preliminary duty to inquire; that Diversitech required the candidate to apply for work on a probationary status and then undergo a drug test confirms the importance Diversitech placed on the possibility of drug abuse as a disqualification to actual employment, and confirms by conduct Diversitech’s true contractual intent. See Head v. Scanlin, 258 Ga. 212, 214 (367 SE2d 546). It also evidences the importance which Robert Half, as a professional agency engaged in placing “qualified” employees, reasonably knew the employer placed on that possibility.
The impossibility of Robert Half’s guaranteeing that a candidate does not engage in illicit drug use does not mean it had no duty even to inquire as to a matter of such blatantly profound significance to its client, and to make a reasonable effort to discover such a blatant disqualifying factor before proposing a candidate as “qualified” and “right on the money” and putting Diversitech to the trouble of engaging her on a probationary status, and before exposing Diversitech to an implied necessity to pay the agency’s fee for an unqualified person. It cannot be disputed that Walker was not “qualified”; a reasonable effort by Robert Half to ascertain this fact, just as Diversitech successfully did soon after Walker’s probationary period began, would have spared Diversitech any necessity of paying a fee for an employee who was not “qualified.” Common sense and public policy demand the conclusion that such a blatant duty was so clearly contemplated by the parties in the circumstances of this case that they deemed it unnecessary to state. Thus, there was an implied duty on Robert Half to screen a job candidate reasonably for drug abuse before presenting a candidate as qualified, in particular, “of managerial quality.”
What constitutes a reasonable effort by the agency to ascertain a job candidate’s qualifications may be a question of fact in some cases, but in this case it is undisputed that although Robert Half had agreed to submit only qualified job candidates and presented Walker as “qualified,” it made no effort at all to determine this fact of profound disqualifying character. It made no inquiry as to the matter whatever, and did not even ask the candidate to submit to a drug screening test *431before representing her as “qualified” and “right on the money.” It cannot be suggested that Robert Half provided a service for which it should be paid, as it did not provide a “qualified” candidate, and made not the slightest effort to discover the blatant negative factor which disqualified Walker for actual employment. Robert Half is not a party to the employment relationship between Walker and Diversitech; as Walker signed an application acknowledging that she was only retained on probationary status and had to undergo a drug test before actually being hired, it is not for Robert Half to assert that Walker had “started employment.” To say this is a question of fact for the jury is to suggest that Robert Half can set its own conditions for employment of a candidate, and that by proposing as “qualified” a person who is never actually employed, it can entitle itself to a fee for a service which, undisputedly, it did not perform.
Decided April 2, 1993. Bryant, Davis & Cowden, Jay G. Davis, James W. Hays, for appellant. • Kirwan, Goger, Chesin & Parks, John J. Goger, Larry Chesin, for appellee.Whether Robert Half knew the exact nature of Walker’s probationary status with Diversitech is beside the point; the point is what the exact relation was between Diversitech and Walker, and that fact has been indisputably established. Since the burden of performance in producing a “qualified” employee was upon Robert Half, and since Robert Half is seeking a fee for placement of an unqualified employee, it ill suits Robert Half to assert that Walker “started employment” when the undisputed evidence of the employer/employee relationship shows she did not.
I would affirm the grant of summary judgment to Diversitech under the facts of this case. I am authorized to state that Presiding Judge McMurray, Judge Andrews and Judge Johnson join in this dissent.