Twitter has been ordered to pay over €550,000 compensation to a former senior executive in its Irish-based operations in what is a record award by the Workplace Relations Commission for an unfair dismissal case.
The WRC heard that the social media giant – now known as X – decided that the employee had resigned when he failed to tick a box requiring him to agree to new unspecified pay and conditions within a one-day deadline in response to an e-mail from the company’s new owner Elon Musk in November 2022.
In the e-mail, the billionaire told employees that 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 grade.”
Musk then required employees to click “yes” in a link at the bottom of the email. “Anyone has [sic] not done so by 5pm ET tomorrow will receive three months of severance,” the e-mail added, before concluding: “Whatever decision you make, thank you for your efforts to make Twitter successful.”
Mr Musk did not give evidence, despite the complainant Gary Rooney’s request for the WRC to use its powers to compel him to attend as a witness.
Mr Rooney claimed his employment was terminated by Twitter International Unlimited Company after he failed to click “yes” in reply to Mr Musk’s e-mail. Mr Rooney said the company subsequently refused to engage with him or his solicitor.
Mr Rooney’s legal representatives said that to accept Twitter’s argument that the failure to tick a box constituted a resignation would “represent a radical change in employment law in Ireland.”
However, the company maintained that Mr Rooney had made a conscious decision to not click “yes” in response to Mr Musk’s “clear and straightforward” e-mail when he knew that by doing so he was resigning his role.
In a 73-page ruling, WRC adjudication officer Michael MacNamee, concluded Mr Rooney’s employment came to an end solely because he did not click “yes” to the e-mail.
The decision not to click “yes”, Mr MacNamee said, was not capable of constituting an act of resignation.
The WRC official said Mr Rooney was available for work but was prevented from accessing his work by Twitter.
He ruled the purported acceptance by Twitter of what was wrongly characterised as the complainant’s resignation constituted a dismissal “in fact and in law”.
Mr MacNamee said the dismissal was unfair due to the absence of any substantial grounds to justify termination of Mr Rooney’s employment.
He also found that Mr Rooney had not caused or contributed to his dismissal by failing to click “yes” and that such a failure also did not represent insubordination or a breach of his contract.
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A Fork in the Road
Mr MacNamee said he was left with the clear impression that the e-mail, which Mr Musk titled “A Fork in the Road”, of November 16, 2022 had taken the vast majority of Twitter staff completely by surprise.
He said allowing 24 hours to respond to the e-mail could not be considered “reasonable notice” to allow an employee to make an informed decision on how to respond to it, even if HR support was readily available.
“No employee when faced with such a situation could possibly be faulted for refusing to be compelled to give an open-ended unqualified assent to any of the proposals,” said Mr MacNamee.
The WRC official said Mr Musk’s e-mail seemed to be an attempt to secure agreement to an alteration to the terms and conditions of employment or to elicit volunteers for redundancy.
Evidence in the case was heard over five days of hearings at the WRC between November 2023 and May 2024.
Twitter denied that Mr Rooney had been dismissed and claimed he was 100% responsible for his loss by failing to click “yes” to Mr Musk’s e-mail.
Mr Rooney had worked for over nine years with Twitter before his employment as Director of “Source to Pay” was terminated on December 18, 2022.
The complainant had a total compensation package at the time of €369,937, including a basic salary of €137,000 plus a 30% performance bonus.
Following the termination of his employment by Twitter, Mr Rooney was unable to find a comparable position but did ultimately begin working with a bank in September 2023 on a package worth €129,897, including a basic salary of €104,500.
His lawyers claimed he was entitled to the maximum award of two years’ remuneration given his losses exceeded the maximum figure allowable for unfair dismissal under the law.
At 2.19am the day after Mr Musk sent the Fork in the Road e-mail, Mr Rooney received another communication which stated: “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 local law.”
On the same day, the complainant posted several messages to colleagues in which he stated he was leaving Twitter.
The WRC heard he had told one colleague he was “deeply troubled by what’s going on here these days.”
He also posted a text: “I can’t stay under this new regime. It would break me.”
Mr Rooney virtually attended a large meeting on November 17, 2022 at which he claimed very little information was imparted or discussed but which was attended by senior executives from two other companies owned by Mr Musk – Tesla and SpaceX.
The WRC heard Mr Rooney’s access to Twitter’s systems and network were closed off on November 18, 2022 without any form of communication before he received an automated message the following day which acknowledged his “decision to resign”.
In an e-mail sent to Twitter on November 26, 2022, Mr Rooney disputed that he had resigned.
Mr Rooney said he did not consider the timeframe he was given to make a decision was acceptable for someone with “nine years of dedicated service and considerable contributions to Twitter.”
After further correspondence, he eventually received a reply from Twitter’s HR department on 7 December 2022 which stated his decision not to click “yes” was treated as serving notice of his resignation.
Counsel for Mr Rooney, Arthur Cush BL, said it was not possible for his client to know what package was being offered or to know the implications of agreeing to stay working for Twitter.
He observed one document had stated that working hours would include “hours outside of normal business hours or on weekends.”
Most alarmingly, counsel said those who stayed would have their benefits changed without knowing what the changes would be before the deadline for acceptance.
The WRC heard that Twitter also indicated that no details about stock options, which were an important part of Mr Rooney’s package, were available at the time.
He also claimed it was “difficult to imagine a more direct form of dismissal than revoking an employer’s access to the computer system used to do his job.”
In addition, Mr Cush pointed out that his client’s contract of employment stated that a resignation must be given in writing.
In evidence, Mr Rooney said he loved his job with Twitter, which he said had an excellent working atmosphere prior to the change in ownership.
Mr Rooney said all his projects were also immediately put on hold, while all travel expenses were paused.
Mr Rooney expressed disbelief at the “Fork in the Road” e-mail and recalled he was initially afraid to open it in case it was spam or malware.
The WRC heard that the company had wanted all staff to return to office-based work, while he had always worked exclusively from home.
Mr Rooney said he understood he might be required to work at weekends and be on call at all times, while there would be unspecified changes to his benefits.
He gave evidence that he did not have a full understanding of what would happen if he did click “yes” but believed the new conditions of employment would be “onerous”.
Mr Rooney said he expected his failure to click “yes” would result in a severance package which never materialised.
He complained to Twitter about the stress and hardship he felt over the lack of response to his e-mails which he found unacceptable.
The WRC heard he was given a document of a draft service agreement worth €22,384 on 7 December, 2022 which would be withdrawn if it was not accepted within two weeks.
Under cross-examination Mr Rooney said he knew there would be consequences if he did not click “yes” but he did not know what they would be.
Counsel for Twitter, Mark Curran BL, argued Mr Rooney’s contract of employment allowed the company to make reasonable changes to its terms and conditions.
Twitter claimed the core message behind Mr Musk’s e-mail was that Twitter was to become “much more engineering-driven” to reflect that it was a “software and servers company” which would necessitate changes to work practices that were allowed under employment contracts.
The company claimed Mr Rooney had clearly stated on numerous occasions through Twitter’s internal communications system that he had decided not to click “yes” on the link and told numerous colleagues that he was leaving Twitter.
It also rejected the suggestion it treated him in a way that amounted to constructive dismissal.
Twitter claimed Mr Rooney failed to provide documentation to substantiate his claims in relation to several other elements of his package besides his basic salary.
Twitter’s senior director of human resources, Lauren Wegman, gave evidence that the change from a public to private company had resulted in a 50% reduction in its workforce in November 2022.
Ms Wegman said the mood among remaining staff was mixed with some excited about “Twitter 2.0” while others were negative and wanted out of the company.
The WRC heard the “Fork in the Road” e-mail was sent to 270 employees in Ireland, of whom 235 had clicked “yes” and had unchanged remuneration and duties.
Ms Wegman denied that the e-mail was an attempt to reduce Twitter’s workforce or that messages or Tweets by the complainant were taken into account in the decision to terminate his role.
She did not accept that Mr Rooney had made every effort to find out what was happening before the deadline.
Ms Wegman also did not accept that any reasonable person would have understood their pay was being reduced based on the information made available.
She expressed the view that Mr Rooney’s employment would probably not have ended if he had raised a grievance within the deadline.
However, she accepted that automated responses sent to the complainant were not ideal.
Ordering Twitter to pay Mr Rooney total compensation of €550,131 for the unfair dismissal, Mr MacNamee said the amount was calculated on a basis that provided €200,000 for prospective future loss of earnings.
The WRC dismissed a separate claim by Mr Rooney that he was entitled to a performance bonus for 2022 on the basis it was “not well-founded”.
Commenting on the WRC ruling, Mr Rooney’s solicitor, Barry Kenny, a specialist in employment law at Kenny Sullivan Solicitors, said they were “very pleased” with the outcome of the case.
The previous highest award for an unfair dismissal case was €440,000 which tech firm, Hyph Ireland (previously Xhail Ireland) was ordered to pay to musician, composer and entrepreneur, Mick Kiely, in February after he had been fired as the company’s chief executive in 2021.