Do not ask for a pound of flesh knowing it is tragic

According to Justice Rika, employers terminated contracts citing force majeure but Jaffery Academy opted for the lesser evil. [iStockphoto]

In 2020, Labour Court judge James Rika was faced with a momentous case between teachers and a private school.

At the heart of the battle between Jaffery Academy and its eight teachers during the Covid-19 pandemic was the reduction of their salaries by between 45 and 65 per cent.

The teachers felt that it was unfair to lower their pay especially when the school's management did not consult them.

After weighing the rival arguments between Emmanuel Wambua, Eric Solonic, Boniface Itevette, Richard Onyango, Edward Oyugi and Alphan Mwanyika, and their employer, the judge settled on the famous William Shakespeare play, The Merchant of Venice, to settle the case.

In the play, a merchant in Venice named Antonio defaults on a 3,000 ducats loan provided by Shylock.

Antonio was not to use the money. Instead, he was bailing out Bassanio, a young Venetian noble who wanted to woo a wealthy heiress, Portia of Belmont.

Portia, had other suitors who were wooing her but she eventually settles for Bassanio. In the meantime, Antonio's ships are stuck in the sea and he cannot pay back the loan.

The play continues that Shylock's condition was that in the event Antonio defaults, he would have a pound of flesh cut from any part of the body that he liked. Bassanio offers Shylock double the amount he had offered as a loan. However, the man was hesitant and insisted that he must get his deal, a pound of flesh next to the heart.

The climax of the play is set in the court of the Duke of Venice. In the courtroom, Portia steps and argues for 'specific performance' in the contract. This meant Shylock would have to cut the flesh, not less or more, and not shed blood.

Here in Kenya, the judge stated that the school had taken measures to keep its teachers earning even with the Covid-19 pandemic.

According to Justice Rika, employers terminated contracts citing force majeure but Jaffery Academy opted for the lesser evil.

He said: "It is imprudent in the circumstances, for the petitioners to take the stance of the Shakespearean Shylock, and demand unwaveringly, for their pound of flesh. Such demands, as Shylock learnt, have the potential for a tragic ending. The Petitioners ought to be satisfied that they are still in employment while rendering little or no labour, to the respondent.

As they observe in paragraph 30 above, the pandemic has not spared workplaces and has made it hard for Employers and Employees to meet mutual obligations. Many Employers have resorted to the contractual doctrines of frustration and force majeure, to justify non-performance. Others as observed elsewhere have opted for termination of contracts. The respondent has taken a softer approach, revising, rather than terminating Petitioners' contracts."

The judge dismissed the case filed by the seven after finding that it was impossible to predict when the pandemic would end. "Covid-19 has ushered in unpredictable times," Justice Rika said adding that parents were demanding school fees reduction.

"They recognise extraordinary steps businesses have been compelled to take, to keep afloat in unpredictable times...The respondent was clearly placed between the hammer and the anvil," he added.