In the recent high-profile case of Gary Rooney v Twitter International Unlimited Company (ADJ – 00044246)...

In the recent high-profile case of Gary Rooney v Twitter International Unlimited Company (ADJ – 00044246), the Workplace Relations Commission (“WRC”) upheld the Complainant’s claim for unfair dismissal and awarded him a record €550,131. The decision is under appeal to the Labour Court.

Facts:

The Complainant began employment with the Respondent in 2013. At the time his employment ended in December 2022 he held the position of “Director of Source to Pay”.

On 16th November 2022, the Respondent’s then entire workforce received an email from the Respondent’s new owner (Elon Musk). The email was entitled “A Fork in the Road”. The content of the email (as outlined to the WRC by the Complainant and accepted by the Respondent) was as follows:

“Going forward, to build a breakthrough Twitter 2.0 and succeed in an increasingly competitive world, we will need to be extremely hardcore. This will mean working long hours at high intensity. Only exceptional performance will constitute a passing a grade. [….]

If you are sure that you want to be part of the new Twitter, please click yes on the link below. Anyone has not done so by 5pm ET tomorrow (Thursday) will receive three months of severance.

Whatever decision you make, thank you for your efforts to make twitter successful.

Elon.”

Following the Fork in the Road email, the Respondent sent employees an accompanying FAQ document which according to the Complainant stated that “If you do not confirm that you wish to stay at Twitter, you are resigning. You will not be entitled to statutory redundancy or other termination payments, unless otherwise required by law.”

According to the Complainant the FAQ document contained a reference to a “separation offer” but the Complainant argued it was not possible to know from the information given what was being offered. The Complainant argued that confusingly the FAQ document also seemed to suggest that if a person did not click the box and did not agree the severance offer the Company would take some other unknown approach. Specifically, the Complainant referred to the following alleged statement in the FAQ document “If you don’t click “yes” we will liaise with you in relation to next steps in accordance with our legal obligations.”

On 17th November 2022 at 6pm Irish Time (which the Complaint said was just four hours before the deadline outlined in Mr. Musk’s email) the Complainant virtually attended a large meeting involving a number of staff in the company. The Complainant contended that he did not glean any useful information from this meeting.

It was common case that the Complainant did not click “yes” by the time the deadline passed.

It was also common case that the following day,18th November, the Complainant’s access to the company’s internal systems and network was cut off without any form of communication.

On 19th November, the Complainant received an email from the Respondent acknowledging his “decision to resign and accept the voluntary separation outlined to you”. The Complainant responded to this email stating that he had not indicated that he was resigning. He received an automated response to this email indicating he would receive a response within three business days. The Complainant sent a follow-up email on 5th December 2022 noting his disappointment that his email was not responded to within three business days. The Respondent’s HR Department responded, noting that the failure to respond to the Fork in the Road email had been treated as the Complainant having served notice of resignation.

Decision:

There were extensive legal submissions from both sides on the question of whether the fact that the Complainant did not respond to Mr. Musk’s Fork in the Road email could amount to a resignation. The Respondent argued that it did. The Complainant strongly contested this and argued that the termination of the Complainant’s employment was an unfair dismissal.

Among other things, the Respondent raised that there had been various communications from the Complainant on the Respondent’s internal communication platforms following the Fork in the Road email and that those communications demonstrated the Complainant had made a conscious decision that he was not going to click “yes”. The Respondent argued that these communications taken together constituted a communication to the Respondent of his intention to resign.

There was detailed consideration of previous case law in respect of resignations and dismissals including the UK case of Sothern v Franks Charlesly & Co [1981] IR 278 as cited in subsequent decisions in this jurisdiction. The Sothern case determined that:

“in the normal case if unequivocal words of resignation are used the employer is entitled to immediately accept the resignation and act accordingly”.

The Adjudicator rejected the arguments put forward by the Respondent and determined that the Complainant’s failure to click “yes” to Mr. Musk’s email of 16th November email “cannot by any reasonable standards be deemed to equate with the use of unequivocal or unambiguous words of resignation.” The Adjudicator held that the Respondent had dismissed the Complainant, and the dismissal was unfair.

The Adjudicator then turned to consideration of the appropriate level of compensation. The Adjudicator’s decision on this point is hugely significant for the following reasons:

1. The Adjudicator took into account Equity Grants/ Deferred Cash Consideration benefits enjoyed by the Complainant arising from his employment with the Respondent and factored them into his calculation of the award to the Complainant for losses arising from the dismissal.

• This decision is also significant because in addition to making an award to the Complainant in respect of losses already incurred as a result of the dismissal, the Adjudicator made a substantial award for future losses (not yet incurred). Of the €550,131 awarded, a substantial €200,000 represented an award for future losses.
• The Adjudicator’s approach to the question of mitigation of loss is also noteworthy. Employees in unfair dismissal claims must be in a position to demonstrate they have made adequate efforts to mitigate their financial loss arising from the dismissal (usually by seeking alternative paid employment). On this point, the Complainant’s lawyers had submitted that for nine months the Complainant had attempted to find a job with an equally high level of remuneration but had been unable to do so and was then forced to accept a position at a considerably lower salary. The Respondent argued the Complainant had not made sufficient efforts to mitigate his loss. However, the Adjudicator found that the Complainant made appropriate efforts to mitigate and remarked as follows:

“He was not obliged to take any job at any salary but rather to seek suitable alternative employment attracting an income as close as he could get to the overall compensation package he had enjoyed prior to the dismissal. From the point of view of assessing mitigation I find that. in all of the circumstances, it would be unfair to criticise the Complainant for failure adequately to mitigate by not achieving a base salary together with benefits as generous as those he enjoyed with the Respondent, and I do not make such a finding.”

Takeaway for Employers:

1. This case is hugely significant for employers who operate employee incentive/equity schemes as it paves the way for employees to claim for loss of benefits under those schemes as part of an unfair dismissal claim.

• This case also reinforces the principle that resignations need to be unequivocal and unambiguous and that if an employer wrongly treats a termination of employment as a resignation, there will likely be a legal exposure under Unfair Dismissals Acts. This point was covered in another of our articles last month in the context of “heat of the moment” resignations where similar principles apply (see that previous article here https://aocsolicitors.ie/employers-should-be-cautious-of-heat-of-the-moment-resignations/).

Link -  https://www.workplacerelations.ie/en/cases/2024/august/adj-00044246.html

Authors – Lia Berkery & Laura Killelea