Shylock’s contract

“The pound of flesh that I demand, is dearly bought, ‘tis mine and I will have it!” screamed the vengeful moneylender, Shylock in Merchant of Venice, one of the most illuminating and lasting Shakespearean characters. Even today, there are many Shylocks that walk among us, initiating and enforcing contracts that are obviously one-sided and patently unfair. The bard of Avon’s allusion to a pound of flesh was not the foreshadowing of liposuction. Rather it was an indictment of legally binding agreements without a moral foundation.

Fortunately one doesn’t need a law degree to recognize mean-spirited Shylock contracts. It may be legal but it’s not moral, is a phrase that has been used frequently to describe many an agreement that is not win-win for the two signatories across the table.

The BusinessDictionary.com calls this the “voidable contract” (not to be confused with a void one). A contract may be legally binding and enforceable when it is made, but it is liable to be subsequently annulled or set aside by the courts through a process of rescission if any of the following conditions exist: 1) non-disclosure of one or more material facts, 2) misrepresentation, 3) mutual mistake, 4) lack of free will of a contracting party, or presence of one contracting party’s undue influence over the other and 5) material breach of the terms of contract.

This seems to be the case when 13 contractual promoter-salesmen or “promodisers” assigned to push Samsung products filed a complaint with the Department of Labor last August 2010 against Temps and Staffers Inc. (TSI) and its owner Vivian Anastacio Guerrero. The complainants alleged that when TSI did not renew their contract with Samsung upon its expiry in June 2010, they were immediately served the termination notice in a memo with the subject, “Cessation of Contract of Services.” They were asked to sign the document before they could collect their 13th-month bonus and cash bond, among others.

The document also invoked Section 9 of their Employment Contract that prohibits them from applying for employment with clients and competitors of TSI for the next six months without a prior written consent, any violation of which will “not be tolerated and will be acted upon accordingly.” It exhorted the terminated employees to immediately submit all the requirements for clearance so that they can collect their final pay and cash bond, 30-45 days upon completion, and the mandatory 13th-month pay by December, 2010 and any tax refund by April, 2011. The bottom line was simply: No sign, no pay.

Some of these promoters have been with TSI for 4 to 5 years, making them “permanently temporary”. Some are paid a daily rate that’s way below the minimum wage law. But the last straw was that they were legally expected to be unemployed for six months! TSI might as well have demanded a pound of flesh.

Their stories only vary in degree of desperation. One signed the unilateral termination contract because he was a diabetic and needed to buy medicines for his upkeep. Nonetheless, he grabbed the first employment opportunity that came his way, violating the onerous provision of the document he signed. He explained, “Mas takot ako na hindi makakain ang pamilya ko at hindi ako makabili ng gamot pang-diabetes kaysa sa takot na mademanda ng TSI” [I am more afraid of not being able to feed my family and buy medicines for diabetes than being sued by TSI].

Another one is the sole breadwinner of his family, supporting his widowed mother while sending three younger siblings to school. He couldn’t afford to remain jobless for six months. “Ang first reaction namin: anong mangyayari sa amin pagkatapos ng June 30? Tinanong namin kung may trabahong mabibigay at wala daw silang maipapangako” [Our first reaction was: what will happen to us after June 30? We asked if they can give us a job but they said they can’t promise anything]. He refused to sign. As of this writing, he has not been able to collect his cash bond and 13th-month pay.

One temp was on the verge of self-pity.” Hindi naman kami pag-aari ng TSI. Hindi naman kami parang alagang hayop para tratuhin ng ganito. May mga karapatan din naman kami” [We are not the property of TSI. We are not pets to be treated this way. We have our rights].

Thirteen brave contractuals took the first step in their quest for a fairer deal. They have placed their faith in the National Labor Relations Commission, and paved the way for the fainthearted to follow suit. Will the NLRC prove the faith well-founded and declare the cessation document a voidable contract? Or will they grant TSI their pound of flesh?

In the meantime TSI has trained its guns on SEPCO (Samsung Electronics Philippines Corporation), accusing 12 Filipino and two Korean managers of economic sabotage, large scale illegal recruitment, syndicated estafa, theft of business processes among others. Then not contented, TSI slapped them with a hold departure order to derail the Koreans’ attendance of two international conferences. Mercifully this was quickly lifted by DOJ for lack of merit. The Watchlist Order (WLO) against the 12 Filipinos was lifted two days ago. DOJ stated that TSI’s complaint is a civil case. The WLO is only for criminal cases as stipulated in Circular No. 41.

There is a sense of foreboding as we witness the triumph of self-interest and greed over civility and altruism. The decay is showing in our deteriorating eco-systems. Even Mother Nature is angry, unleashing her wrath to cleanse the earth, if not its creatures.

As Portia, disguised as the lawyer “Balthazar”, pleaded for the defendant Antonio, her prayer was—-

“Though justice be thy plea, consider this,

That in the course of justice none of us

Should see salvation: we do pray for mercy;

And that same prayer doth teach us all to render

The deeds of mercy.”

Perhaps the salvation that humanity seeks can only be bought by forgiveness. –Yoly Villanueva-Ong (The Philippine Star)

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