ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044246
Parties:
| Complainant | Respondent |
Parties | Gary Rooney | Twitter International Unlimited Company |
Representatives | Arthur Cush B.L. instructed by Barry Kenny Solicitor, Kenny Sullivan Solicitors | Mark Curran B.L. instructed by Noel Devitt Solicitor, Mason Hayes & Curran Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00054915-001 | 07/02/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00055009-001 | 12/02/2023 |
Date of Adjudication Hearing: 29/05/2024
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 41 of the Workplace Relations Act, 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The case was heard on the following dates:
6th of November 2023
2nd of February 2024
20th February 2024
21st of February 2024
28th of May 2024
The hearings on the 6th of November 2023 and the 20th of February 2024 took place of the hearing at the offices of the Workplace Relations Commission at Lansdowne House, Dublin. On the other days, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
Background:
The Complainant made two claims, a claim for unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977-2015 together with a claim pursuant to Section 6 of the Payment of Wages Act 1991. Both claims were contested in full.
Dismissal was in dispute.
The Complainant was employed by the Respondent from the 23rd of September 2013 until his employment ended on or about the 18th of December 2022.
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Summary of Complainant’s Case:
The Complainant was represented by Mr. Arthur Cush B.L instructed by Mr. Barry Kenny Solicitor of Kenny Sullivan Solicitors. The Complainant provided two written submissions. The first was delivered prior to the first day of hearing. The Second was delivered in response to the written submission provided by the Respondent. With the exception of references to documents, copies of authorities and appendices, the written submissions are replicated hereunder.
Introduction and factual Background
1. The Complainant began his employment with the Respondent on 23 September 2013. As an EMEA Sourcing and Procurement Manager (Dublin).
2. He was ultimately promoted to the position of “Director Source to Pay” although he was never provided with an a separate contract in respect of this position. The Complainant held the position of Director of Source to pay at the time of his dismissal.
Dismissal
3. Each of the emails, documents and letters described at paragraphs 4 to 20 below [provided in booklet of documents].
4. On 16 November 2022, the Complainant received an email from the new owner of the Respondent Company Elon Musk 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.”
5. The Complainant received a further email at 2:19 am the following morning attaching an “FAQ” document. Under the heading “International” which applies to the Complainant the document states: “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”.
6. It was not possible to know from this document what package was being offered as under the headings “Exit Package” and “International” it is stated: “We have received questions regarding our legal obligations outside of the US. We will comply with all applicable legal requirements. Subject to local legal requirements, this voluntary separation offer is comprised of: […].”
7. More unusually, the ‘offer’ is “subject to a signed settlement agreement” which was not provided prior to the deadline for accepting or rejecting it.
8. It was also not possible to know the implications of agreeing to stay. The FAQ document noted a return to the office and in terms of working hours: “this will include hours outside of normal business hours or on weekends”.
9. Most alarmingly, those who stayed would have their compensation changed but were not informed of what this change would be within the deadline for acceptance:
“Benefits changes: “Additional Information forthcoming in the coming days”
10. An important part of the Complainant’s compensation was in the form of stock and options. The document included the question: “Can any details be shared about plans for the stock / option compensation in Twitter 2.0?”. The answer provided was “not at this time”.
11. The document specifically confirmed that the deadline of one day could not be extended and that any decision was final.
12. However, confusingly, the FAQ document also seemed to suggest that if a person did not click the box and did not agree to the severance offer, that the Company would take some other unknown approach:
Q: What if happens if I don’t’ confirm that I want to stay at Twitter, but do not agree to the severance offer? Will I be fired or laid off?
A: [International] If you don’t click “yes” we will liaise with you in relation to the next steps in accordance with our legal obligations.
13. As such, the Complainant was being asked to chose between the following options within one day:
a) Tick the box and agree to “be extremely hardcore” and “work long hours at high intensity”, new unspecified working arrangements in terms of the requirement for in office attendance and working hours, most importantly to agree to changes to his compensation which were not made available during the time for acceptance.
b) To not tick the box. However, the implications of not ticking the box were contradictory and unclear. On the one hand, employees were told they were agreeing to an exit package which was not specified as the outline was stated to be “subject to local legal requirements” and a separation agreement which had not been provided. On the other hand, in the same document employees were specifically told that if they did not tick the box but wished to stay at Twitter: “we will liaise with you in relation to the next steps in accordance with our legal obligations.”.
14. These emails came at a time of rapid change in Twitter and in the context of inconsistent, contradictory and confusing communications from the Respondent in connection with the takeover of the Company by Mr Musk. The Complainant was not in a position to make a decision on whether or not to “tick the box”. It was simply not possible for him to know from the information provided within the one day window what the consequences of acceptance or rejection of the ‘offer’ would mean.
15. On Saturday 19 November 2022, the Complainant received a further email which stated that it is “to acknowledge your decision to resign and accept the voluntary separation offer”. The email states that the Complainant’s last working day was to be Thursday the 17 of November 2022 and that his access to Twitter systems will be deactivated. It also stated that the Complainant would receive details of his separation offer in the near future.
The Complainant’s attempt to clarify the position
16. On 26 November 2022 the Complainant sent an email to the Respondent as follows:
“ […] I wish to outline that at no time have I indicated to Twitter that I am resigning my position, nor have I seen any separation agreement let alone accepted one.
Over the last number of weeks, communications from Twitter have been lacking, and those that have been issued I’ve been inconsistent and confusing. I do not consider the email from Elon Musk on 16th Nov pr the follow up “FAQ” document from Twitter HR department on 17th Nov to be a clear outline of a separation agreement. I also do not consider the timeframe outlined in both mails to be an acceptable period for an individual to consider their position after 9 years of dedicated service & considerable contributions to Twitter.”
The email called on Twitter to identify who the Complainant could deal with to resolve the issues.
17. On 28 November 2022, the Complainant received an automated response promising a reply within 3 days. This did not occur.
18. The Complainant sent a further email on 5 December 2022 (by which time he had been locked out of the Twitter networks):
“I note with disappointment that despite committing to come back to my mail within three business days, it has now been over one week since my mail, and I have yet to receive any follow up. I still have not had sight of the suppose of separation agreement, and yet I am unable to access Twitter networks and to be able to continue to serve in my role as Director of Source to Pay.”
19. On 7 December 2022, the Complainant received an email from the Respondent:
“You have decided not to click “yes” in response to Elon’s email entitled “A Fork in the Road” sent on Wednesday, November 16, 2022. As we advised you at that time, this was treated as you having served notice to resign your employment with Twitter International Unlimited Company.”
The email went on to say that anyone who ‘chose’ not to stay with Twitter would be offered a three month severance package if they signed the settlement agreement. A copy of the settlement agreement was sent under separate email of the same date.
20. The Complainant did not sign this settlement agreement. He does not accept that his employment could have been terminated as described by the Respondent. The Complainant instructed his solicitors to write to the Respondent on 13 December 2022 and 19 January 2023 calling on them to re-engage him and confirming his commitment to working with the Company.
21. No response was ever received to these letters.
No resignation by the Complainant
22. Resignation of employment requires a clear communication of the intent to resign. It cannot be inferred from a failure to agree to ‘tick a box’ to agree (or not agree) to unclear and undisclosed consequences.
23. The learned author of Redmond on Dismissal Law describes a valid resignation as follows:
“Where unambiguous words of resignation are used by an employee to an employer, and are understood by the employer, generally it is safe to conclude an employee has resigned”.
24. This position also arises from the UK case of Sothern v Franks Charlesly & Co as cited by the EAT in Cafferkey v Metrotech Services Ltd :
The English Court of Appeal in Sothern v Franks Charlesly & Co. [1981] I.R.L.R. 278 has decided that in the normal case if unequivocal words of resignation are used the employer is entitled immediately to accept the resignation and act accordingly, it was clear from observations made in that case that there may be exceptions. These include cases of an immature employee, or of a decision taken in the heat of the moment, or of an employee being jostled into a decision by employers (per Fox L.J.).
25. As such, a valid resignation requires “unambiguous words of resignation” or “unequivocal words of resignation”. In the present case there were no words of resignation at all. The Respondent relies only on the failure to tick a box with unknown consequences within an impossibly short deadline.
26. In so far as the Respondent may argue that silence or inaction can constitute unambiguous words of resignation, this is contrary to the most fundamental rules of contract law that silence cannot constitute a binding acceptance of an offer.
27. Finally, the Complainant’s contract did not permit him to resign in any other way than by notice in writing, which was never given.
No valid resignation where it is obtained by threat, ultimatum or misstatement
28. A recent 2022 article in the Irish Employment Law Journal; That's it, I quit!”: A Review of Significant Irish Case Law on Disputed Resignations sets out the circumstances where an employer cannot rely on the resignation of an employee. These include:
• where the resignation was induced by a threat, ultimatum or misstatement.
29. In the case of close Flood v Regency Fare Ltd the Complainant was informed that if she did not resign the police would be called and she would be taken to Court. The EAT found that her resignation had not been voluntary. It had been induced by threat or ultimatum and she was therefore unfairly dismissed
30. In the High Court case of O'Reilly v Minister for Industry and Commerce the Plaintiff was incorrectly informed that he could be compulsorily retired. His employer caused and allowed this misapprehension to continue and this was the cause of the Plaintiff’s resignation. The Court held:
Mr. Dorgan was, in my opinion, bound to act fairly, as well, in the circumstances that Mr. O'Reilly believed he had no option but to go. The failure to correct this misapprehension which must have been obvious, was effectively a misstatement and therefore, the Defendant cannot rely on the letter of resignation which resulted from the interview. In the circumstances, Mr. O'Reilly is entitled to special damages which he estimated at a net loss of £1,200 per month for 3 years which amounts to £14,400 and I will hear submissions on the other headings of relief sought.
31. In the present case, even if it were to be accepted that the failure to click a box could constitute a resignation then it was induced by the threat of new unknown working conditions and pay.
32. Further, the Respondent by giving wholly inadequate and contradictory information within the one day window, forced the Compliant to make a decision in wholly unreasonable circumstances.
33. The Complainant was under the misapprehension that if he failed to tick the box but wished to stay in the Company that the Respondent: “ will liaise with you in relation to the next steps in accordance with our legal obligations.”
34. The Respondent acted entirely unfairly in seeking to obtain a resignation in the circumstances of the case. If a valid resignation were found to have occurred, this was engineered deliberately by way threat, ultimatum and misstatement and is therefore invalid.
Failure to allow the Complainant withdraw the ‘Resignation’
35. Even if the Complainant’s failure to tick the box within the one day deadline could constitute a resignation (and it is respectfully submitted this could never be the case) the failure of the Respondent to allow the Complainant to correct the position is unlawful.
36. In the case of Shinkwin v Donna Millett the Labour Court determined that the failure to allow the Complainant to continue her job constituted a dismissal:
“where an employee makes a decision to resign which is not fully informed because he/she is not in a position to fully evaluate his/her options or he/she may act on a misinterpretation of something which is said or done and the situation is still retrievable, it would be unreasonable for an employer to deny an employee an opportunity to recant within a reasonable time once the true position becomes clear and such denial may in the circumstances amount to a dismissal.”
37. This statement of principle is applicable to the facts of this case. The Complainant was not fully informed or in a position to evaluate his options during the deadline for the “tick the box” exercise which purported triggered a resignation. Th FAQ document was unequivocal in its terms on this point:
Q: After I submit my decision, can I change my mind after the deadline? A: No, your decision is final.
38. In reaching this decision in Shinkwin v Donna Millett, the Labour Court cited the following other decisions on the same point. In Kwik-Fit (GB) Ltd v Linehan it was held:
Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] I.R.L.R. 313). These we refer to as ‘special circumstances’. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers (sic) risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.”
39. In Martin v Yeoman Aggregates Ltd it was held:
“It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted, as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts make no difference.”
Unfair Dismissal
40. If any of the following are accepted:
a) The Complainant did not in fact resign.
b) That he did resign but this was triggered and by a threat, ultimatum or misstatement and so cannot be relied on by the Respondent.
c) That he did resign but that the Respondent was under a duty to accept the withdrawal of the resignation.
Then it follows that The Complainant was “dismissed” within the meaning of the Unfair Dismissals Act 1977 as amended in that his contract of employment was terminated.
41. Where an employer terminates a person’s employment on foot of an invalid resignation, the appropriate finding is unfair dismissal. Returning to the previously cited article in the Irish Employment Law Journal , the author cites the following cases as examples where a finding that a resignation is invalid results in a finding of unfair dismissal :
i. O'Callaghan v Quinnsworth UD68/1978 ii. Flood v Regency Fare Ltd UD1036/1988 iii. Maureen Keane v Western Health Board UD940/88, in this case the finding made was constructive dismissal iv. Desmond Geraghty v Industrial Credit Corporation UD396/89 v. O'Reilly v Minister for Industry and Commerce [1997] E.L.R. 48, vi. Cafferkey v Metrotech Services Ltd UD932/1998. vii. Shinkwin v Donna Millett EDD044 (2004), in this case the finding was that a dismissal occurred on foot of an invalid resignation but the basis of the award was discrimination rather than unfair dismissal. viii. A Worker (Mr O) v An Employer (No.2) [2005] ELR 132 ix. Maher v Greyhound Waste Disposal Ltd UD105/2005 x. Employee v Employer UD2116/2011. xi. G Holland Ltd t/a Holland TCS v Laura Dennison UDD2017 (2020), a case in which a finding of constructive dismissal.
42. These cases will be opened and expanded on at the hearing as necessary but for the purpose of these submissions it is sufficient to say that the well established position is that relying on an invalid resignation will result in a finding of unfair dismissal.
43. Section 6 (1) of the 1977 Act provides that dismissal shall be deemed to be unfair unless having regard to all of the circumstances there were substantial grounds justifying the dismissal. The onus to justify that the fairness of the dismissal shifts to the employer pursuant to Section 6 of the Act and the employer must show that the dismissal results from one of the grounds set out in Section 6 (4):
a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
44. The Respondent was consistent in its communications that it treated the failure to “tick the box” as a resignation and the Complainant’s employment was ended on the basis of that resignation. Having consistently maintained that the Complainant resigned his employment, the Respondent cannot now change its case to attempt to justify the termination on any other basis.
Loss and Redress
45. The details of the Complainants compensation set out below are contained… [booklet provided]
46. Complainant’s compensation package at the time of his dismissal in November 2022 consisted of the following elements:
i. A basic salary of €137,0000. ii. A 30% bonus, this is paid in March of each year. The Complainant’s 2021 bonus of €39,901 was paid in March 2022. iii. An impact award bonus of 6720 shares paid over four over years from 1 May 2022. At acquisition price of $54.20 per share this equates to $91,016 per annum. iv. An outstanding sum related to a 2022 Equity Grant of 3219 shares paid over four years from 1 May 2022. At acquisition price of $54.20 per share this equates to $43,612 per annum. v. An outstanding sum related to a 2021 Equity Grant of 1504 shares paid quarterly over four years from 1 May 2021. At acquisition price of $54.20 per share this equates to $20,379. vi. An outstanding sum related to a 2020 Equity Grant of 2384 shares paid over four years from 1 May 2020. At acquisition price of $54.20 per share this equates to $32,303 per annum. vii. Health and Dental Insurance valued at €3,265. viii. Employer pension contribution of 8% valued at €10,960 per annum. ix. Stock in the Respondent Company which was vested in varying amounts on a year on year basis. The most recent Restricted Stock United Agreement provided for 3219 Restricted Stock Unites vested at a rate of either 201 or 202 units per year from 1 May 2022 to 1 February 2026. The value of this stock in the year 2022 is €177,613.
The Complainant’s total compensation was therefore: €369,937
47. Given the Complainant’s high level of remuneration prior to his termination, it took time for him to search for a position with a similarly high level of compensation. He was unable to find a comparable position but did ultimately accept a position in a bank beginning 18th September 2023. The compensation for this new position is:
i. €104,500 basic salary ii. A pension contribution of 13% which equates to €13,585 iii. A car allowance of €11,812
The Complainant’s total compensation package was therefore €129,897.
48. The Complainant has therefore suffered a financial loss, defined by Section 7 of the 1977 Act as:
“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;
49. In this case given the extremely poor treatment of the Complainant and the complete breakdown in communication, re-engagement or re-instatement are not appropriate and the appropriate remedy is compensation. His compensation is set by Section 7 (1) (c) of the 1977 Act to two years remuneration, defined by Section 7 as:
“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay
The Complainant’s compensation is therefore capped at €739,874.
50. This section was considered by Charlton J in the case of JVC Europe Limited v Jerome Panisi in which he described the task of calculating compensation as follows:
In assessing compensation, the court should have regard to the implications for dismissal. My task is to assess the financial damage which the dismissal has brought about and then to place the measure of that damage against the maximum amount of compensation that is available. In the event that the compensation that is available, amounting to 104 weeks remuneration, is less than that sum, then that is the measure of damages. Where the quantum of damage is more, then the jurisdiction is limited to that maximum and the amount of damages must thus be reduced to that maximum sum
51. Section 7 (2) of the Act provides that in determining the level of compensation, regard shall be had to the extent to which the loss was attributed to the act omission or conduct of the employer. In this case, the loss suffered is attributed entirely to the unusual and highly unreasonable attempt to engineer sham resignations.
52. In the present case, the Complainant has for nine months attempted to find a job with an equally high level of remuneration. He has been unable to do so. The Complainant will give detailed evidence of this at the hearing of the action. He has been forced to accept a position at a considerably lower salary and the evidence will be that he will be on a lower overall level of remuneration for the foreseeable future, if not forever. His financial loss is therefore greater, but must be the capped at two years remuneration.
53. The learned authors of the most recent edition of Employment Law cite the cases of Moriarty v FW Woolworth Plc and Muagham v Janssen Pharmaceuticals BV as examples of where the maximum award was ordered due to the fact that the Complainant was unlikely to get as good as job in the future. It is respectfully submitted that for this reason and all of the reasons set out above, compensation should be calculated at two years remuneration.
The following cases were cited:
O'Callaghan v Quinnsworth UD68/1978 Flood v Regency Fare Ltd UD1036/1988 Maureen Keane v Western Health Board UD940/88 Desmond Geraghty v Industrial Credit Corporation UD396/89 O'Reilly v Minister for Industry and Commerce [1997] E.L.R. 48, Cafferkey v Metrotech Services Ltd UD932/1998. A Worker (Mr O) v An Employer (No.2) [2005] ELR 132 Maher v Greyhound Waste Disposal Ltd UD105/2005 Employee v Employer UD2116/2011. G Holland Ltd t/a Holland TCS v Laura Dennison UDD2017 (2020) Sothern v Franks Charlesly & Co. [1981] I.R.L.R. 278 Flood v Regency Fare Ltd UD1036/1998 Shinkwin v Donna Millett [2004] ELR 319 Kwik-Fit (GB) Ltd v Linehan [1992] IRLR 156 Barclay (sic) [1983] I.R.L.R. 313). Martin v Yeoman Aggregates Ltd [1983] IRLR 49 JVC Europe Limited v Jerome Panisi [2011] IEHC 279 (123 – 134) Employee vs an Employer UD 2116 /2011 (135 – 140)
Following delivery of the Respondent’s written submission, the Complainant made further detailed written submissions as follows
INTRODUCTION
1. These submissions are prepared in response to the Respondent’s submissions dated 8th January 2023, received by the Complainant on 10th January. These submissions are supplemental to the Complainant’s first written submissions.
PRELIMINARY
2. This complaint bearing reference Complaint CA-55009 relates to a claim under the Payment of Wages Act 1991 which is addressed under separate heading below. The preliminary issues in respect of jurisdiction and whether the Respondent is the contacting entity are addressed under the heading of ‘loss’ below.
THE COMPLAINANT’S RESIGNATON
Termination on foot of an invalid purported resignation is a direct dismissal by the employer and not a constructive dismissal
3. The Respondent’s submissions attempt to confine the Complaint’s case to one of constructive dismissal. This argument is inconsistent with the facts of the case, the governing legislation and the legal authorities.
4. By locking the Complainant out of the company systems on 17 November 2022 due his failure to tick the box, the Complainant was directly dismissed within the definition of dismissal at 1 (a) of the Unfair Dismissals Act 1977 as amended: “(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.”
5. It is difficult to imagine a more direct form of dismissal than revoking an employee’s access to the computer system used to do his job. The Respondent confirmed that the date of termination was the 17th of November 2022 (Tab B 7)
6. The Complainant’s first submissions quote a number of authorities which establish that the appropriate finding is dismissal by the employer and not constructive dismissal.
7. The EAT case of an Employee vs an Employer UD 2116 /2011 provides an appropriate example. Here the Tribunal found that a letter of resignation was obtained in appropriate circumstances and so could not be relied upon. The finding here was unfair dismissal and no reference is made to constructive dismissal. The Tribunal held:
It is not remotely fair or reasonable to arrange for an employee to sign a letter of resignation in the car park of a public house or in the public house itself, for that matter. If an employer prepares a letter of resignation it is important that the employee is signing it voluntarily and that s/he knows and fully understands what he is doing.[….]
The Tribunal determines that the claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds. The Tribunal is absolutely satisfied that the claimant was dismissed and that his "resignation" was a forced resignation in unacceptable circumstances.
8. On this point, the most recent edition of Employment Law in Ireland, 2nd Edition 2022 addresses termination of employment in a separate chapter to constructive dismissal. Chapter 23 addresses termination (and not constructive dismissal) and at 23-59 the authors state:
“the contract of employment may be terminated by mutual consent of the parties. Consent must be genuinely and voluntarily given by both parties. Thus if the employee’s consent alleged consent to termination was vitiated in someway by the wrongful acts of the employer, then the employees ‘agreement’ to end the contract will amount to a dismissal and maybe subject to the protection of the unfair dismissal in legislation or a claim for wrongful dismissal.”
9. The UK case law supports the case for a claim in direct dismissal. The Court of Appeal case of Howard Rhys Jones v Mid-Glamorgan County Council [1997] EWCA Civ 1680 is cited positively in a number of later UK judgements. The Court held that a resignation obtained in unacceptable circumstances can be a direct dismissal or a constructive dismissal, the Judge favoured the view that it was a direct dismissal but stated that it was of little consequences where a Court or Tribunal will be willing to recognise a dismissal when it sees it:
Courts and tribunals have been willing, from the earliest days of the unfair dismissal jurisdiction, to look, when presented with an apparent resignation, at the substance of the termination for the purpose of inquiring whether the degree of pressure placed on the employee by the employer to retire amounted in reality to a dismissal. In the instant case the employee had framed his claim in constructive dismissal, and the Industrial Tribunal dealt with it upon that footing. There was accordingly some discussion before us as to whether the principle I have just mentioned is to be regarded as deriving from an inference of circumstances giving rise to a constructive dismissal under S 95 (1) (c) of the Employment Rights Act 1996 , or whether it is more broadly based as a species of direct dismissal. For my own part, while tending to favour the latter view, I do not find it necessary to resolve that question in the present case because the principle itself (whatever its origins) is well settled. It is a principle of the utmost flexibility which is willing in all instances of apparent voluntary retirement to recognise a dismissal when it sees it, but is by no means prepared to assume that every resignation influenced by pressure or inducement on the part of the employer falls to be so treated.
10. As such, this claim is not confined to a claim for constructive dismissal. If the Adjudicator accepts that no valid resignation was given the correct finding is dismissal within the meaning of Section 1 (a) of the 1997 Act.
The Complainant did not resign his position by failing to check the box
11. It is important to recall what actually occurred which is not disputed in the Respondent’s submissions. The Complainant did not tick the box agreeing to new unspecified pay and conditions during the one day window provided. He was then locked out of the computer system. The central issue is whether the failure to check the box can be regarded as a resignation.
12. The Respondent refers at Appendix 9 of its submissions to messages sent by the Complainant to friends within the company in which he states his intention not to click the box and his knowledge that the result of this is the end of his employment with Twitter. Similarly, the Tweet at Appendix 10 “After 9 years…I am out too” is a statement of fact reflecting the reality of the situation.
13. However, these messages and tweet were not basis on which his access to the systems was revoked and his employment ended. As noted at paragraph 19 of the Complainant’s first submissions, the Respondent confirmed by email dated 7 December 2023 (Tab B 7) that the failure to click the yes box alone was regarded as resignation:
“You have decided not to click “yes” in response to Elon’s email entitled “A Fork in the Road” sent on Wednesday, November 16, 2022. As we advised you at that time, this was treated as you having served notice to resign your employment with Twitter International Unlimited Company.”
14. The central issue remains therefore whether the failure to tick the box amounts to having served a notice of resignation as contended for in this email and all prior communications from the Respondent. If accepted, this would be a radical departure from the existing law in this jurisdiction in two respects:
(i) That silence could constitute acceptance of an offer,
(ii) That a resignation can occur in the absence of clear words by an employee to an employer, and are so understood by the employer
(i) Silence as acceptance
15. It is well established that silence cannot constitute acceptance of an offer. The learned authors of the leading text Contract Law, Second Edition 2017, Paul A McDermott and James McDermott at 2.102 cited the case of Re Selectmove Limited [1985] 2 All ER 531 at 535 and state : “The general rule is that ‘silence will not normally amount to acceptance of an offer since acceptance cannot be inferred from silence save in the most exceptional cases”.
16. The exceptions to the general rule are set out by McDermott at 2.107 to 2.109 are (i) where the parties agree that silence can constitute acceptance, (ii) where the need for express communication of acceptance is dispensed with by reason of a past course of dealing between the parties such that there is a legitimate expectation that silence indicates acceptance, (iii) where silence can constitute acceptance where the contract involves a service which cannot be returned once given, ie a mechanic who fixes a car on the side of a road. These exceptions do not arise on the facts on this case.
17. The communication by Mr Musk and subsequent FAQ document demonstrate that the Company is offering three months severance for those who agree to resign. The FAQ document at Annex B to the first submission demonstrate than an offer is being made. It states “this is a voluntary separation offer”. The document is replete with references to this being an offer. Headings include: “ Can I be given more time to consider this offer” and “Does this offer apply to everyone?”
18. The Respondent’s own submissions make clear that the email constitutes an offer to resigning employees in excess of their contractual entitlements. At paragraph 11 it is argued: “ The index email provided for 3 months severance pay, significantly in excess of the one month which the Respondent was contractually required to provide”.
19. The Respondents submissions invite the Adjudicator to make a finding that silence / inaction can constitute acceptance of the offer to resign in exchange for severance. No authorities are cited in support of this proposition and it should be rejected as inconsistent with Irish law.
(ii) That a resignation can occur in the absence of clear words by an employee to an employer
20. The cases cited at paragraphs 23 to 25 of the Respondents submissions under the heading ‘the Complainant has resigned’ undermine its case rather than assist it.
21. Those cases confirm that ‘unequivocal words of resignation’ or ‘unambigous words of resignation used by an employee to an employer and are so understood by the employer, and are so understood by the Employer” are required.
22. As set out above at paragraph 13, the Respondent expressly and specifically confirmed in writing by way of email dated 7 December 2022 that it treated this silence / inaction in failing to tick the box as his serving notice of resignation. It cannot now retrospectively change its position and maintain that internal slack massages or a tweet are in fact the basis of its position that he had resigned.
23. Further, those slack messages were sent to other employees he was friendly with in an informal manner and therefore could not constitute words ‘used by an employee to an employer’. The email of 7 December 2022 confirms that the Respondent understood the failure to tick the box as the resignation and so the slack massages were also not “so understood by the Employer” as words of resignation.
24. A genuine resignation requires a clear communication of intent, usually in the context of a discussion. In Sandhu v Jan de Rijk Transport [2007] IRLR 519, the Court of Appeal of England and Wales summarised a number of authorities and stated:
“Resignation, as the authorities indicate, implies some form of negotiation and discussion; it predicates a result which is a genuine choice on the part of the employee.”
25. No negotiation or discussion took place in the present case. No communication occurred as between employee and employer. In so far as the failure to tick a box could be regarded as a choice, the choice cannot be regarded as genuine given the dearth of information provided on the consequences of leaving or remaining with the Company.
Resignation by failing to click a box is inconsistent with the Complainant’s contract
26. The Complainant’s first submission make the point that his contract of employment confirms that resignation must be given in writing. The Complainant did not give such notice in writing and the Respondent specifically confirmed it was relying on the failure to tick the box.
27. It is simply impossible to reconcile the Complainant’s contract with the position adopted by the Respondent:
Clause 11.1 provides: “This Agreement shall end by either you or Twitter on [1] month’s notice in writing”.
The email of 7 December 2022 stated: ““You have decided not to click “yes” in response to Elon’s email entitled “A Fork in the Road” sent on Wednesday, November 16, 2022. As we advised you at that time, this was treated as you having served notice to resign your employment with Twitter International Unlimited Company.
28. The Respondent has not addressed this argument in its written submissions.
The Complainant also succeeds in a claim for constructive dismissal
29. While establishing above that the Complainant is not confined to a claim for constructive dismissal, the Complainant would also succeed in a claim for constructive dismissal. The Complainant will rely on the cases cited at paragraph 41 of the first submission which relate to a finding of unfair dismissal by way of constructive dismissal in cases where a resignation is not found to be valid. The Complainant responds as follows to the points raised in the Respondent’s submissions.
The alleged failure to invoke the grievance procedure
30. The Respondent makes the argument at paragraph 19 of its submissions: “That the Claimant failed to raise any grievance or complaint regarding these matters or regarding an alleged breach of contract prior to resigning.” Authorities are cited on this point at paragraphs 14, 15 and 16. While these principles are correct, with respect, it is difficult to understand how these arguments could have any application on the facts of the present case.
31. The Complainant received the first email from Mr Musk on 16th November 2022. He received the FAQ document at 2.19 am on 17th November 2022. The Respondent argues that the Complainant resigned his employment that same day on 17 November 2022.
32. The Respondent cannot credibly maintain that the Complainant should be faulted for failing to formulate and submit a grievance or complaint that same day. It also cannot maintain that doing so would have prevented the Respondent from locking the Complainant out of the systems and thereby terminating his employment, as it made clear by the FAQ document.
33. On the day he received the email from Mr Musk he asked his immediate manager, Laurence O’Brien what was going on and he replied that he did not know.
34. As set out at paragraphs 16 to 21, the Complainant sent two emails and separately sent two letters to the Respondent seeking to engage with them to resume his employment. After one response (confirming that they regarded him as having resigned) no further responses were received.
35. If there has been any failure to engage it has been by the Respondent and not the Complainant.
36. Paragraph 20 the Respondent’s submissions selectively quote from the Complainants submissions to create the incorrect impression that the Complainant has been inconsistent. However, when quoted in full it is plain that the Complainant argues that he was not in a position to make an informed decision to tick or not tick the box: “ The Complainant was not in a position to make a decision on whether or not to “tick the box”. It was simply not possible for him to know from the information provided within the one day window what the consequences of acceptance or rejection of the ‘offer’ would mean.” .
37. The Respondent’s submissions argue at paragraph 10 that the Complainant’s contract provides that the Respondent: “may from time to time make reasonable changes to the terms and conditions” of the Complainant’s employment. However, if these changes were contractually permitted the Respondent would not have called on employees to agree or not agree, it would have simply implemented the changes.
38. The Respondent cannot maintain that the changes described in vague terms were contractually permitted, that claim is inconsistent with its own actions of seeking agreement or resignation.
LOSS
39. The Respondent’s submissions on this issue are misconceived. They address the terms of the Complainant’s contract as if he were seeking specific performance or damages for breach of a specific obligation in Court proceedings. That is not the approach provided for in the Unfair Dismissals Act.
40. The question to be determined is what is included within the definition of remuneration. It is a question of correctly interpreting the statute.
41. Section 7 provides that redress is calculated by reference to two key concepts: (i) ‘Financial loss’ and ‘Remuneration’. Section 7 (c) (i):
If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances
42. Both of these terms are defined by Section 7.
(3) In this section—
“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;
“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.
43. The definitions plainly extend remuneration and financial loss to bonuses and other benefits in lieu of or in addition to pay. S.I. No. 287/1977 - Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 sets out the method by which remuneration is calculated.
44. Crucially, the Respondent’s submissions ask the Adjudicator to look forwards from the date of termination. In fact, the Regulations require the Adjudicator to look backwards from the date of termination.
45. The regulations specifically include bonuses in the calculation of remuneration. Bonuses are regularly included in the calculation of remuneration, including the recent case of A Sales Executive v A Software Company ADJ-27573 (2022) cited in the Respondent’s submissions.
46. The inclusion of each element of the Complainant’s remuneration is addressed below.
The 30% Bonus
47. This bonus was a performance based bonus which would vary year on year. S.I. No. 287/1977 is clear that the method for calculation of the loss of same is to look backwards and then use this figure to calculate the loss. This is the opposite of the approach suggested by the Respondent in its submissions which suggests that the fact of dismissal disentitles the Complainant to compensation.
48. Regulations 7 (a) and (b) provides:
7. ( a ) In the case of an employee who is paid remuneration in respect of the relevant employment wholly or partly at piece rates, or whose remuneration includes commissions (being piece rates or commissions related directly to his output at work) or bonuses, and in the case of any other employee whose remuneration in respect of the relevant employment varies in relation to the amount of work done by him, his weekly remuneration shall be the amount obtained by dividing the amount of the remuneration to be taken into account in accordance with paragraph (b) of this Regulation by the number of hours worked in the period of 26 weeks mentioned in the said paragraph (b) and multiplying the resulting amount by the normal number of hours for which, at the date of the dismissal of the employee, an employee in the relevant employment was required to work in each week.
(b) The remuneration to be taken into account for the purposes of paragraph (a) of this Regulation shall be the total remuneration paid to the employee concerned in respect of the employment concerned for all the hours worked by the employee in the employment in the period of 26 weeks that ended 13 weeks before the date on which the employee was dismissed, adjusted in respect of any variations in the rates of pay which became operative during the period of 13 weeks ending on the date of dismissal of the employee.
49. The decision of A Sales Executive v A Software Company ADJ-27573 (2022) specifically confirms that the correct approach is to consider a ‘Look Back period’ of 39 weeks and to assess what sum was earned during 26 weeks of that period rather than what was paid. The decision records:
“I am satisfied that from my review of the Regulation, that the intention of the relevant Minister was that it is remuneration “earned” in the Look Back Period and not the amount “paid” that is relevant for the purposes of the calculation.”
50. The 30% bonus paid in 2021 was a bonus earned throughout the year. The Complainant’s 2022 compensation letter (contained at Tab C 7 final page) states in respect of this bonus paid in March 2022 for the year 2021 states:
How performance bonuses are Determined
Your performance Bonus payout is based on Twitter’s performance and your individual performance in 2021 (more at go / Performance Bonus). This bonus will be paid on March 2018, 2022 (in the US) or in the last payroll in March 2022 (all other countries).
51. The breakdown of the total payment of €39,901 is stated to be Company Portion (100%) of €18,302.96 and Individual Portion (118%) is €21,598.04.
52. The Respondent’s submissions make the case that no bonuses were paid in 2023. However the regulations specifically require the Adjudicator to look backwards (and not forwards) at a specified period of time prior to termination to calculate the remuneration including the bonus.
53. As the bonus was earned throughout the whole year, the portion which was earned in the period described in regulation (b) is the same as any other period in the calendar year.
54. As such for the purposes of calculating remuneration, the annual bonus of 30% equates to €41,100 (being 30% of his 2022 salary of €137,000) or a weekly bonus earned of €790.38 (€41,100 divided by 52 weeks in the year).
The Impact Award Bonus
55. The impact award was a bonus awarded to the Complainant in Q1 of 2022 payable over the next four years. The Complainant’s first set of submissions express this in shares and sets a value based on the acquisition price. The Respondent itself to set a value for this award of $240,000 based on the share price at the time it was issued and before the shares were purchased by Mr Musk.
56. The Complainant’s 2022 Compensation Package Letter details this award Tab C 7 final page. On page 3 it reads:
Additional Awards
Impact Award: 240,000 USD
In recognition of your hard work and outsized impact here at Twitter, we are excited to share that you are a recipient of an impact award! This is a very special recognition of the great work you already do and we are looking forward to your continued outstanding contributions to Twitter.
57. The Impact Award is specifically stated to be an award in recognition of his work. It therefore also falls to be assessed under Regulation 7 being a bonus which “varies in relation to the amount of work done by him”
58. As per the decision of A Sales Executive v A Software Company ADJ-27573 (2022), the assessment is based on when the bonus was earned. As appears from the above extract from the compensation letter, the bonus was earned as a recognition of overall work and cannot be attributed to any particular week or period of weeks. Applying Regulation 7 (b) the portion which was earned in the period described in regulation (b) is the same as any other period in the calendar year.
59. Applying the calculation provided in the first set of submissions, the value of the impact award in 2022 was $91,016 per annum. In the alternative, applying the value of the Impact Award set by the Respondent in the Compensation Letter, the value of the impact award in 2022 was $60,0000.
The Equity Grants
60. The Equity Grants formed part of the Complainant’s guaranteed annual payment and is reflected in his Compensation letter for 2022 (Tab C 6).
61. This therefore falls to be calculated by reference to Regulation 4 which provides:
4. In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him, his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment together with, if he was normally required to work overtime in the relevant employment, his average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.
62. As this element of remuneration was earned throughout the year, the amount earned on the last week before dismissal is the same as any other week of the year. It can therefore be calculated on annual basis.
63. As broken down and particularised at (iii) to (vi) of paragraph 46 of the Complainant’s first submission, the total equity grants which the Complainant would have received on a per annum basis in 2022 were $96,294.
Health and dental insurance and employer pension contribution.
64. The amount claimed in respect of health and dental insurance and pension contribution is evidenced by the Complainant’s pay slips. Copies of these are attached at Annex 1 to this submission.
Stock in the Respondent Company
65. As with the Equity Grant bonus, this form of remuneration was not varied based on performance and therefore falls to be assessed by reference to Regulation 4 on the basis of the method set out earlier in these submissions.
66. As set out at (ix) of paragraph 46 of the first submission, the value of this stock bonus in the year 2022 is €177,613.
Mitigation of loss
67. The Complainant fully complied with his duty to mitigate his loss. This is evidenced by the spreadsheet he kept of his attempts to find work at similar levels of remuneration. A copy of that spreadsheet is attached at Annex 2 to this submission and the Complainant will expand on this in oral evidence.
CONCLUSION ON UNFAIR DISMISSAL
68. This a case of unfair dismissal in which the Respondent seeks to rely on a failure to click a box with unknown consequences as a valid resignation. This approach is would represent a radical change in employment law in Ireland. The Complainant has suffered a financial loss in respect of which two years remuneration is the only appropriate remedy as his loss exceeds the maximum jurisdiction.
Complaint – CA-55009
69. This complaint is made under the Payment of Wages Act 1991 and is properly before the Commission.
70. Separate to the issue of the Complainant’s Unfair Dismissal which only assesses loss from the date of termination, he has not received the wages actually due to him on the date he was terminated. The Complainant never received his 2022 bonus notwithstanding the fact that he worked until 17 November 2022.
71. The learned author of Employment Law, 2nd edition 2023, Francis Meenan notes under the heading of the 1991 Act: “A bonus falls within the definition of “wages”.”
72. The author cites the case of Cleary v B and Q Ireland [2016] 1 I.R 276 in which the Court held that the withholding of bonus payments for a period that has already been worked is unlawful. If discretion in relation to a bonus payment is exercised unreasonably, the employer will be in breach of contract, the use of the word “discretionary” is not always determinative of whether a contractual entitlement arises under a bonus scheme. The terms of the bonus scheme properly interpreted do not allow for the unilateral withholding of a bonus payment in respect of a period worked.
73. In Cleary the Court held:
I am satisfied that in the circumstances of this case the overall discretionary nature of the bonus scheme does not extend to a withholding of the bonus due, in respect of that period, in respect of which the bonus was quantified and payable under the scheme, subject to compliance with the eligibility provisions. I am satisfied that the contract of employment and bonus scheme must be interpreted reasonably. The discretion to withdraw the bonus scheme at any time, in my view, was always intended to apply in futuro and attached to the conferring of bonuses, as yet unaccrued, under the terms of the scheme. The payment of the bonus crystallised as a contractual obligation once it was ‘earned’ in accordance with the terms of the scheme as operated
74. Applying Cleary this to the facts of the present case the Complainant is entitled to his 2022 bonus calculated at 30% as per the previous year which equates to €41,100. If the adjudicator believes he is entitled to only the portion of 2022 actually worked, the Complainant is entitled to a bonus calculated on the basis of working 46 of a 52 week year and this is calculated at €36,357
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Summary of Respondent’s Case:
The Respondent was represented by Mr. Mark Curran B.L instructed by Mr. Noel Devitt Solicitor of Mason Hayes & Curran Solicitors. A written submission was delivered by the Respondent in accordance with my directions on the 8th of November 2023. With the exception of references to appendices, the submission is reproduced hereunder in full. PRELIMINARY 1. The Respondent notes that no submissions, documentary evidence nor proof of claim have been received from the Claimant in respect of Complaint form CA-55009 and therefore the Respondent submits that said claim for €30,000 should be dismissed by the Adjudication Officer.
2. The Respondent submits that any issues raised by the Claimant in respect of the Equity Incentive Plan, Restricted Stock Units and Impact Award are subject to a governing law clause mandating Delaware law and a governing jurisdiction clause in favour of the State of California. Therefore, the Respondent respectfully submits that the Workplace Relations Commission does not have jurisdiction in respect of any claims arising from the Equity Incentive Plan, the Restricted Stock Units and/or the Impact Award. In the event that the Adjudication Officer decides he does have jurisdiction, further time will need to be afforded to the parties to proffer expert evidence as to Delaware law.
3. Furthermore, the Respondent submits that any claims relating to any alleged Bonus, Equity Incentive Plan, Restricted Stock Units and/or Impact Award claimed by the Complainant are wrongly instituted as against the Respondent as the Respondent is not the contracting entity in respect of those agreements.
4. The Respondent submits that the facts as admitted by the Claimant provide clear evidence that he resigned from his position of employment and accordingly any claim taken by the Claimant can only be a claim for constructive dismissal rather than unfair dismissal simpliciter. THE CLAIMANT’S RESIGNATION Constructive Dismissal 5. The Respondent submits that the Claimant resigned from his employment rather than being dismissed. Therefore, any claim taken by the Claimant can only be a claim for constructive dismissal rather than unfair dismissal simpliciter.
6. Section 1 of the Unfair Dismissals Acts defines constructive dismissal in the following manner:
“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”
7. For a claim of constructive dismissal to be successful, the Claimant must demonstrate that there has been a fundamental breach of contract by the Respondent and/or that the Respondent’s conduct was so unreasonable that he had no option but to resign.
8. The Labour Court stated in Cedarglade Limited v Tina Hliban UDD 1843 that the “contract test” requires that an employer be:
“guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”.
9. This had previously been held to be the case in Western Excavating (ECC) Ltd v Sharp [1978] WLR 344. It was further noted in An Operations Coordinator v A Facilities Management Service Provider [2021] ADJ- 00028293 that the contract test “requires repudiation of contract and not merely a breach of contract.” The Respondent submits that there has been no fundamental breach of the Claimant’s contract of employment by its actions.
10. The Claimant’s contract of employment at Tab A (2) of his submissions provides that the Respondent “may from time to time make reasonable changes to the terms and conditions” of the Claimant’s employment. This is important to bear in mind when one considers that the core message behind Mr. Musk’s email is clearly that the Respondent is shifting to become “much more engineering-driven” in order to reflect the fact that the Respondent is a “software and servers company” and that this will necessitate changes to working practices. The Respondent submits that this is within the scope of the changes allowable pursuant to the Claimant’s contract of employment.
11. Furthermore, the Claimant’s contract of employment states that the Respondent is only contractually obliged to provide one month’s notice of termination to the Claimant and that the Respondent can pay the Claimant in lieu of notice. The index email provided for 3 months’ severance pay, significantly in excess of the one month which the Respondent was contractually required to provide.
12. The Labour Court stated in Cedarglade that the ‘reasonableness test’:
“asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving... They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981.” 13. As set out in Cedarglade:
“the Claimant must demonstrate that the Respondent has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for her to remain in her employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Therefore, the Court must examine whether or not, by the application of a normal standard of reasonableness, an employee in the same circumstances as the Claimant would be justified in resigning in response to the employer's conduct, whether or not that result was intended. In the Supreme Court case Berber v Dunnes Stores [2009] ELR. 61 Finnegan J. held: - “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
14. In Iasc Sliogagh Dun Garbhain Teoranta Dungarvan Shellfish v Daniel Comanescu UDD 1756, the Labour Court referred to the Employment Appeals Tribunal decision of Beatty v Bayside Supermarkets UD142/1987 which, in referring to the need to utilise grievance procedures, held:
“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.
15. This was summarised succinctly in Conway v Ulster Bank UD474/1981, where it was stated that in order to meet the reasonableness test, the Claimant must have “substantially utilized the grievance procedure to attempt to remedy her complaints.”
16. “Redmond on Dismissal Law” (2017) at para. [19.14] states that:
‘there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.
17. The Claimant must demonstrate that his resignation was not voluntary i.e. that he had no alternative but to resign. The Claimant bears the burden to prove that the Respondent’s conduct was such that it was reasonable for him to terminate his contract.
18. The reality of this situation is that the Claimant made a conscious decision to not click “yes” in response to the email of 16 November 2022. He knew, or ought reasonably to have known, that by doing this he was resigning his role. The Claimant’s submissions descend into a convoluted and overly legalistic interpretation of various different hypothetical and counter-factual circumstances which no reasonable person could possibly have envisioned. The email sent to the Claimant was clear & straightforward and the Claimant’s reaction to same was equally clear & straightforward in that he did not reply to the email, knowing this would result in the termination of his contract of employment. To suggest anything otherwise is disingenuous and specious.
19. The Respondent notes that the Claimant failed to raise any grievance or complaint regarding these matters or regarding an alleged breach of contract prior to resigning. This is despite the fact that both the grievance and complaint procedures are available on the staff intranet and/or within the employee handbook as indicated to the Claimant in his contract of employment at paragraph 16.1. Furthermore, paragraph 16.2 of the contract of employment stipulates that in the event the Claimant has any grievance relating to his employment with the Respondent, it shall be submitted in writing to Human Resources and the matter would be subject to a hearing. The Claimant failed to avail of this option prior to resigning.
20. Furthermore, the Respondent notes that the Claimant’s submission wherein he states that he “was not in a position to make a decision on whether or not to “tick the box”” is manifestly incorrect. In this regard, the Respondent refers to the internal messaging comments of the Claimant wherein he clearly states on numerous occasions that he has decided not to click ‘yes’ on the link and informs numerous colleagues that he is leaving the company. These internal messages must be read in conjunction with the public tweet sent by the Claimant on 17 November 2022 wherein he states: “After 9 years…I’m out too” (Appendix 10). The Respondent submits that this contrast between the submissions of the Claimant and the evidence presented in the internal messaging comments raises serious concerns about the credibility of the Claimant and the bona fides of the complaint raised.
21. The Respondent denies that the Claimant was treated in a manner which amounted to a constructive dismissal pursuant to the Unfair Dismissal Acts and rejects the allegations raised in the Claimant’s claim form. The Respondent notes that the substantive facts before the Adjudicator do not point to the Respondent having acted unreasonably and that notwithstanding this, no internal grievance or complaint was ever raised by the Claimant to address the email sent. Therefore, the Respondent asserts that the reasonableness test has not been met. It is also respectfully submitted that the failure by the Claimant to fully utilise the grievance/complaint procedure means that his case must fail.
22. Addressing the specific submissions made by the Claimant, the Respondent submits as follows:
The Claimant had resigned
23. The Respondent relies on the UK case of Sothern v Franks Charlesly & Co [1981] IRLR 278 as cited by the EAT in Cafferkey v Metrotech Services Ltd UD 1036/1988 wherein the Court states that “in the normal case if unequivocal words of resignation are used the employer is entitled immediately to accept the resignation and act accordingly”.
24. The Respondent notes that in “Redmond on Dismissal Law” (2017) at para. [22.22] it is stated:
“When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned.”
25. The Respondent submits that by his words and actions, the Claimant unequivocally communicated his intention to resign to the Respondent and this was not done “in the heat of the moment” nor was there any issue with the “intellectual makeup” of the Claimant as is the case in much of the disputed resignation jurisprudence. Therefore, the Claimant resigned.
The resignation was not obtained by threat, ultimatum or misstatement
26. There is no factual basis for the allegation that the Claimant resigned due to threat, ultimatum, or misstatement. The examples cited by the Claimant in his submissions involve scenarios wherein an employee was threatened with the police, with Court action or was provided with incorrect information stating he would be compulsorily retired. These scenarios relied upon by the Claimant are worlds apart from the situation in this instance wherein the Claimant was given the option of resigning via email and chose to avail of same.
The Respondent was under no obligation to allow the Complainant to withdraw his resignation
27. The Respondent relies on the Labour Court decision of Shinkwin v Donna Millett EED044 wherein the Court stated:
“It is also clear from the authorities that where an employee freely and deliberately decides to resign and subsequently changes his or her mind, the employer is under no obligation to accede to a offer to withdraw the resignation or to even to consider such an offer.”
28. The Court further states in Shinkwin that the general rule in respect of resignation is that:
“The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation.”
29. The exception to this general rule in Shinkwin is where the employee can demonstrate “special circumstances” existed at the time he resigned. In Shinkwin, the employee’s “physical and emotional condition at the material time” convinced the Court to set aside the resignation; these are factors which the Respondent submits are in no way present in the index proceedings. LOSS Basic salary 30. The Respondent accepts that the Claimant’s basic salary at the time of his resignation was €137,000. Bonus 31. The Claimant claims a 30% bonus in his submissions as part of claim CA-54915, notwithstanding the fact that this appears to form part of claim CA-5509 for which neither documentation nor submissions have been submitted. Therefore, on that basis alone, this claim for a bonus should be dismissed.
32. The Claimant has not submitted any documentation to substantiate the claim that he was entitled to be awarded a bonus other than a bald assertion that his bonus was worth €29,244 as of 18 September 2023.
33. The Respondent submits that the bonus claimed by the Claimant is in the nature of a ‘Performance Bonus’ and is expressly stated as being discretionary and subject to both the Claimant and the Respondent’s performance.
34. The plan in respect of the Performance Bonus effective from 1 January 2022, states that, if the bonus is to be funded and allocated, it would be paid out in “March of the year following the Plan Year”. The plan states that the bonus is dependent on:
“(1) the achievement of performance goals by Twitter Inc. and/or its affiliates or subsidiaries (“Twitter Group”); and (2) each Eligible Employee’s individual performance and contributions during the Plan Year”.
35. To be eligible to receive the performance bonus, an employee must, inter alia, “be a regular employee of a Twitter Group company and be actively employed in good standing…”. The plan goes on to state that an employee “whose employment ends at any time before the Performance Bonus Payout Date will not be eligible for any Performance Bonus under the Plan” and that “Twitter reserves the right to terminate any Eligible Employee’s participation in the Plan at any time”.
36. The plan further states that “Each Eligible Employee working in a location outside of the United States must timely sign and return an individual Plan Acknowledgment Form (PAF) signifying acceptance of the terms and conditions of the Plan within the prescribed time frame. Failure to complete this step within the prescribed time frame will impact the eligibility to participate in the Plan”.
37. The Respondent notes that the Claimant’s contract of employment (Tab A(2)) states at paragraph 11.8 that:
“In the event of your employment with Twitter coming to an end in circumstances which could give rise to a claim for wrongful and/or unfair dismissal (whether or not it is known at the time of dismissal that such a claim may ensue), you will not by virtue of such dismissal become entitled to any compensation for the loss of any rights or benefits or anticipated rights under any scheme or plan (including any equity or share option plan) operated by Twitter or any Associated Company in which you may participate”.
38. Therefore, based on the foregoing, it is clear that the Claimant is not eligible to recover any Performance Based Bonus for the following reasons:
- It is well publicised that during the index year the Respondent itself has suffered significant and unprecedented losses. The Respondent can confirm that as a result of these losses, no employee was eligible to receive a Performance Bonus Payout in 2022 and no employee in fact received a Performance Bonus Payout for 2022. Furthermore, the bonus scheme in question no longer exists in light of worsening financial performance and no performance bonuses were received in 2023;
- The Claimant’s contract of employment precludes him from compensation for any loss of bonus as a result of his contract terminating;
- The Claimant’s employment ended before the Performance Bonus Payout Date in March 2023;
- The Claimant has provided no evidence to suggest that he signed and returned the requisite PAF within the prescribed time frame; and
- There is no evidence that the Claimant hit his own performance metrics during the index year.
The Equity Grants 39. The following clauses contained within of the Equity Incentive Plan (Appendix 16) are relevant to the current proceedings:
(i) Clause 6(d)(ii) states that: “Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified by the Administrator, the Option will terminate, and the Shares covered by such Option will revert to the Plan”;
(ii) Clause 7(d) states that the “the Administrator, in its sole discretion, may impose such other restrictions on Shares of Restricted Stock as it may deem advisable or appropriate”;
(iii) The Termination Period clause within the agreement states that “this Option will be exercisable for three (3) months after Participant ceases to be a Service Provider…in no event may this Option be exercised after the Term/Expiration Date as provided above”;
(iv) Exhibit A, Clause 8 states that:
“PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEUDLE SET FORTH HEREIN DO NOT CONSSITUTE AN EXPRESS OF IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE, SUBJECT TO APPLICABLE LAWS”;
(v) Exhibit A, clause 9 states that “in accepting the Option, Participant acknowledges, understands and agrees that”:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan; (b) the grant of the Option is voluntary and occasional and does not create any contractual or other right receive future grants of options, or benefits in lieu of options, even if options have been granted in the past; (c) all decisions with respect of future options or other grants, if any, will be at the sole discretion of the Company; (f) the Option and the Shares acquired under the Plan and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments; (j) for purposes of the Option, Participant’s engagement as a Service Provider will be considered terminated as of the date Participant is no longer actively providing services to the Company or any Parent or Subsidiary (regardless of the reason for such termination and whether or not later to be found invalid or in breach of employment laws in the jurisdiction where Participant is a Service Provider or the terms of Participant’s service agreement, if any), and unless otherwise expressly provided in this Award Agreement or determined by the Administrator, Participant’s right to vest in the Options under the Plan, if any, will terminate as of such date and will not be extended by any notice period; (l) i. the Option and the Shares subject to the Option are not part of normal or expected compensation or salary for any purpose; iii. no claim or entitlement to compensation or damages shall arise from the forfeiture of the Option resulting from the termination of Participant’s engagement as a Service Provider (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is a Service Provider or the terms of the Participant’s service agreement, if any) and in consideration of the grant of the Option to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, any Subsidiary or the Employer, waives his or her ability, if any to bring any such claim, and releases the Company, any Parent, any Subsidiary and the Employer from any such claim; if, notwithstanding the foregoing any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, the Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim”;
40. Exhibit A, Clause 23 states that the governing law clause of the Equity Incentive Plan is the laws of Delaware and there is a governing jurisdiction clause in favour of the State of California.
41. The Respondent notes that the Claimant’s contract of employment (Tab A(2)) states at paragraph 11.8 that:
“In the event of your employment with Twitter coming to an end in circumstances which could give rise to a claim for wrongful and/or unfair dismissal (whether or not it is known at the time of dismissal that such a claim may ensue), you will not by virtue of such dismissal become entitled to any compensation for the loss of any rights or benefits or anticipated rights under any scheme or plan (including any equity or share option plan) operated by Twitter or any Associated Company in which you may participate”.
42. Arising from the foregoing, the following is submitted:
- The Claimant’s contract of employment precludes him from compensation for any loss of rights or benefits under any equity or share option plan as a result of his contract terminating;
- Any stock options/equity grants will not vest in the Claimant once his contract of employment is terminated, regardless of the reason for said termination;
- As the stock options/Equity Grants have not vested in the Claimant/he has not exercised his option in respect of same, he has no right to payment;
- The Respondent has sole discretion in respect of the granting of the stock options/equity grant. Of note, in Bunyan v UDT (Ireland) Ltd [1982] ILRM 404, the Employment Appeals Tribunal stated that benefits which are a “consequence of the exercise of a discretion” do not constitute remuneration.
- The Respondent can terminate the stock options/Equity Grants at any time for any reason;
- The stock options/Equity Grants cannot be construed as “remuneration” for the purpose of calculating loss;
- The Claimant has waived his right to institute proceedings in respect of the Restricted Stock Units; and
- Any disputes in respect of the stock options/equity grants and any matters of interpretation in respect of said Agreement fall to be governed by the law of Delaware and are within the jurisdiction of the State of California. Therefore, the Workplace Relations Commission does not have jurisdiction to hear any disputes in respect of same. The Restricted Stock Unit Agreement 43. The Claimant has claimed a sum of €177,613 in respect of the Restricted Stock Unit Agreement.
44. The Restricted Stock Unit Agreement states that the Claimant must be “continuously employed by Twitter through such vesting date” and “in the event the Participant ceases to be a Service Provider for any or no reason before Participant vests in the Restricted Stock Units, the Restricted Stock Units and Participant’s right to acquire any shares thereunder will immediately terminate”. Furthermore, the following clauses contained within Exhibit A to the Agreement are relevant to the current proceedings:
(i) Exhibit A, Clause 2 of the Agreement states that “until the Restricted Stock Units will have vested…Participant will have no right to payment in respect of any such Restricted Stock Units”;
(ii) Exhibit A, Clause 3 states that “Restricted Stock Units…will not vest in Participant…unless Participant will have been continuously a Service Provider from the Date of Grant until the date such vesting occurs”;
(iii) Exhibit A, Clause 5 is entitled “Forfeiture upon Termination of Status as a Service Provider” and states that “the balance of the Restricted Stock Units that have not vested as of the time of Participant’s termination as a Service Provider for any or no reason and Participant’s right to acquire any Shares hereunder will immediately terminate”;
(iv) Exhibit A Clause 9 is entitled “No Guarantee of Continued Service” and states that the “PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENTS, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEUDLE SET FORTH HEREIN DO NOT CONSSITUTE AN EXPRESS OF IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE, SUBJECT TO APPLICABLE LAWS”;
(v) Exhibit A, clause 10 states that “in accepting the grant, Participant acknowledges, understands and agrees that”:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
(b) the grant of the Restricted Stock Units is voluntary and occasional and does not create any contractual or other right receive future grants of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been granted in the past;
(c) all decisions with respect of future Restricted Stock Units or other grants, if any, will be at the sole discretion of the Company;
(f) the Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
(h) for purposes of the Restricted Stock Units, Participant’s status as a Service Provider will be considered terminated as of the date Participant is no longer actively Providing services to the Company or any Parent or Subsidiary (regardless of the reason for such termination and whether or not later to be found invalid or in breach of employment laws in the jurisdiction where Participant is a Service Provider or the terms of Participant’s service agreement, if any), and unless otherwise expressly provided in this Award Agreement or determined by the Administrator, Participant’s right to vest in the Restricted Stock Units under the Plan, if any, will terminate as of such date and will not be extended by any notice period;
(j) iii. no claim or entitlement to compensation or damages shall arise from the forfeiture of the Restricted Stock Units resulting from the termination of Participant’s status as a Service Provider (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is a Service Provider or the terms of the Participant’s service agreement, if any) and in consideration of the grant of the Restricted Stock Units to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, any Subsidiary or the Employer, waives his or her ability, if any to bring any such claim, and releases the Company, any Parent, any Subsidiary and the Employer from any such claim; if, notwithstanding the foregoing any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, the Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim”; and
(vi) Exhibit A, Clause 24 states that the governing law clause of the Restricted Stock Unit Agreement is the law of the State of Delaware and there is a governing jurisdiction clause in favour of the State of California.
45. The Respondent notes that the Claimant’s contract of employment (Tab A(2)) states at paragraph 11.8 that:
“In the event of your employment with Twitter coming to an end in circumstances which could give rise to a claim for wrongful and/or unfair dismissal (whether or not it is known at the time of dismissal that such a claim may ensue), you will not by virtue of such dismissal become entitled to any compensation for the loss of any rights or benefits or anticipated rights under any scheme or plan (including any equity or share option plan) operated by Twitter or any Associated Company in which you may participate”
46. Arising from the foregoing, the following is submitted:
- The Claimant’s contract of Employment precludes him from compensation for any loss of rights or benefits under any equity or share option plan as a result of his contract of employment terminating;
- Restricted Stock Units will not vest in the Claimant once his contract of employment is terminated, regardless of the reason for said termination;
- As the Restricted Stock Units have not vested in the Claimant, he has no right to payment in respect of same;
- The Respondent has sole discretion in respect of the granting of the Restricted Stock Units. The Respondent reiterates the point as made further above concerning the Bunyan decision;
- The Respondent can terminate the Restricted Stock Unit Agreement at any time for any reason;
- The Restricted Stock Units cannot be construed as “remuneration” for the purpose of calculating loss;
- The Claimant has waived his right to institute proceedings in respect of the Restricted Stock Units; and
- Any disputes in respect of the Restricted Stock Unit Agreement and any matters of interpretation in respect of said Agreement fall to be governed by the law of Delaware and are within the jurisdiction of the State of California. Therefore, the Workplace Relations Commission does not have jurisdiction to hear any disputes in respect of same. Impact Award 47. The sum claimed by the Claimant in respect of the Impact Award is subject to the same restrictions governing Restricted Stock Units as detailed above and the Respondent will rely upon the same arguments and submissions contained therein. Health and Dental Insurance and Employer Pension Contribution 48. The Claimant has provided no documentation nor evidence to support either of the sums claimed in respect of these heads of loss and the Respondent places him on full proof that he is entitled to the amounts claimed therein. MITIGATION OF LOSS 49. Strictly without prejudice to the foregoing even if it is held that the Claimant was unfairly dismissed, which is denied, it is submitted that the Claimant has failed to mitigate his loss in circumstances where:
- the Claimant failed to take the simple action of clicking the link within the email from the Respondent dated 16 November 2022; and
- the Claimant only obtained alternative employment on 18 September 2023.
50. In Wrobel v Haccius Logistics Ltd ADJ-00035911 (2022), the Adjudicator determined that it “is well established that a Claimant must make every effort to mitigate loss in the event of a termination.” 51. This accords with Section 7(2)(c) of the Unfair Dismissals Act 1977 which makes it clear that in determining the amount of any compensation consideration must be given to “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”. Failure to respond to the 16 November 2022 email 52. The Claimant has acknowledged that he received and was aware of the email sent to him on 16 November 2022. This email was sent in circumstances wherein the Respondent was experiencing significant and unprecedented structural and organisational change.
53. As detailed above and as will be further demonstrated at the hearing of the action and through cross-examination of the Claimant, the Claimant at all times intended to resign his position and terminate his employment with the Respondent and same could have been avoided had he taken the simple step of clicking the link within the email.
54. Therefore, it is respectfully submitted that the termination of the Claimant’s employment was at all times due to his own actions and any loss incurred by the Claimant is wholly a matter of his own design. Failure to obtain alternative employment and/or make adequate efforts in respect of same 55. The test for a Claimant to mitigate their loss is set out in the decision of the Labour Court in Smith v Leddy UDD1974 (2019). In this case, the Labour Court determined that “the court expects to see that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment” and stated that if this test is not met, then this had to be reflected in the compensation awarded to the Claimant. In Ryan v Pharmacy O’Riain Limited ADJ-29267 (2022), notwithstanding the evidence of the Claimant that she had applied for twenty-three positions in the period 29 June 2020 to August 2021, the Adjudicator held that the test in Smith v Leddy had not been satisfied and that the Claimant had not mitigated her loss.
56. This accords with Sheehan v Continental Administration Co Ltd UD 858/1999, within which the Employment Appeals Tribunal considered an employee’s efforts to mitigate and held:
“A Claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”
57. In A Sales Executive v A Software Company ADJ-27573 (2022), the Court considered mitigation of loss and noted the decision of the Court of Appeal in England in London Underground v Edwards (No.2) [1998] IRLR 364 (applied in Benedict McGowan and Ors v The Labour Court and Ors [2010] 21 ELR 277), where it was stated that expert tribunals, such as the WRC, “do not sit in blinkers and are entitled to make use of their own knowledge and experience in the industrial field”.
58. Furthermore, section 6(a) of Unfair Dismissals (Amendment) Act 1993 (amending Section 7 of the principal Act) provides as follows.
“If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.”
59. In the circumstances, the Claimant has provided little or no evidence as to the efforts he has made to seek employment subsequent to his resignation from the Respondent. It is respectfully submitted that pursuant to London Underground, the Adjudicator must take into consideration that at the time of the Claimant’s resignation, the Irish economy was buoyant and at full employment, presenting little or no impediment to the Claimant obtaining a job of similar status as his role with the Respondent’s organisation. The failure of the Claimant to obtain any employment for a period of 9 months or to demonstrate any efforts to obtain same is entirely inadequate and represents a failure to mitigate loss as required by the statute and the above authority.
60. Accordingly, it is respectfully submitted that the Adjudicator should have regard to the failure of the Claimant to mitigate his loss to the required standard and if unfair dismissal is found to have occurred, which is denied, the Claimant should only be awarded the minimum payment. CONCLUSION 61. The Claimant is not entitled to the reliefs as sought in the claim forms and/or through legal submissions. The Respondent reserves the right to further particularise its Defence and/or making further submission in respect of this claim through writing and/or at the hearing of the action. The following authorities were cited: Redmond on Dismissal Law (2017), paragraphs [19.14] and [22.22] Cedarglade Limited v Tina Hliban UDD 1843 Western Excavating (ECC) Ltd v Sharp [1978] WLR 344 An Operations Coordinator v A Facilities Management Service Provider [2021] ADJ- 00028293 Iasc Sliogagh Dun Garbhain Teoranta Dungarvan Shellfish v Daniel Comanescu UDD 1756 Beatty v Bayside Supermarkets UD142/1987 Conway v Ulster Bank UD474/1981 Sothern v Franks Charlesly & Co [1981] IRLR 278 Cafferkey v Metrotech Services Ltd UD 1036/1988 Shinkwin v Donna Millett EED044 Bunyan v UDT (Ireland) Ltd [1982] ILRM 404 Wrobel v Haccius Logistics Ltd ADJ-00035911 (2022) Smith v Leddy UDD1974 (2019) Ryan v Pharmacy O’Riain Limited ADJ-29267 (2022) Sheehan v Continental Administration Co Ltd UD 858/1999 A Sales Executive v A Software Company ADJ-27573 (2022) London Underground v Edwards (No.2) [1998] IRLR 364 Benedict McGowan and Ors v The Labour Court and Ors [2010] 21 ELR 277)
Evidence on behalf of the Respondent was given on affirmation by Ms. Lauren Wegman. |
Findings and Conclusions:
Application pursuant to Section 41 (10) of the Workplace Relations Act and/or Section 8 (13) of the Unfair Dismissals Acts 1977-2015 of the Workplace Relations Act. Prior to the taking of oral evidence from either party a case management hearing was conducted on the 2nd of February 2024. The Complainant requested pursuant to the above provisions that I exercise my powers to compel the attendance of Mr Elon Musk to give evidence at the hearing, including to explain the rationale behind the Fork in the Road Email of the 16th of November 2024 and the manner in which the Complainant’s employment came to an end. In response to my enquiry the Respondent confirmed that it was relying on the express wording of the Fork in the Road Email, the accompanying FAQ documents and the open correspondence between the parties. This being the case, I indicated to the parties that I would approach the matter on the basis that the Respondent accepted responsibility for those communications and whatever consequences would flow from my interpretation of them based on the submissions and evidence offered. I indicated that I would revisit the situation if the need arose. The issue dd not subsequently arise again I proceeded with the evidence and documentation as presented.
Complainant’s Evidence The Complainant gave evidence on affirmation. In February 2021 he was promoted to the position of Director of Source to Pay which position he held immediately prior to the end of his employment. This was his third promotion since joining the Respondent in 2013. He described the reporting structures. His was a Level 8 position. His remuneration increased with this promotion, but his contract remained unchanged otherwise. His basic salary was €137,000 (which figure was agreed). It was further agreed that in the calendar year 2021 the Complainant received a sum by way of performance bonus of €39,901 A further component of the Complainant’s remuneration was described by the parties as an Impact Award Bonus. This bonus was linked to the Respondent’s share value and was calculated in accordance with a specific formula such that if the award vested in accordance with the rules of the scheme the shares allocated were converted into cash and paid through the Respondent’s payroll as a net sum. The Complainant gave evidence regarding the income received from the Impact Award [as to which see Complainant’s First Submission at paragraphs 45-4 and Second Submission at paragraphs 55-66 and analysis in Findings Section below] The Complainant received pension contributions from the Respondent totalling €10,960 per annum. Subject to the Respondents denial that any bonus, whether related to Performance or Impact Award, was payable, the parties agreed that the Complainant’s total annual remuneration prior to the end of his employment was €369,937 per annum.
Prior to the recent change in ownership of the Respondent the Complainant loved his job. He developed very close working relationships with his reports and those to whom he reported. The working atmosphere was excellent. In or around October 2022 Mr. Elon Musk took over the effective ownership and control of the Respondent. All projects involving the Complainant’s role were immediately put on hold and an instruction was issued to stop paying the Respondent’s suppliers and to cancel all applicable direct debits. The Complainant and his colleagues were quite upset carrying out this instruction which took several days to implement. They were instructed not to tell the suppliers why they were not being paid. In addition, a further instruction was issued to pause all employee travel expenses. This resulted in multiple calls from employees who had incurred expenses. There was no communication from above save that the issues were under review until new managers were appointed. Some three or four weeks after the change of ownership, the employments of 50% of the Respondent’s employees were terminated. None of those to whom the Complainant reported including his direct line managers could tell him what was going on. On the 16th of November 2022 the Respondent’s then entire workforce received an email from Mr. Musk which was headed “A Fork in the Road” (hereafter referred to as “the Fork in the Road Email”). The Complainant’s first reaction was disbelief. He was initially afraid even to open it for fear that it was spam or malware. The email was received at 12 midnight Irish- time and the Complainant read it on his way into work on the morning of the 16th of November 2022. There was no information flow to accompany the email and the Complainant’s colleagues (both reports and managers) had no further information. The deadline for clicking “yes” (hereafter referred to as “the Deadline”) was set for the very next day, being the 17th of November 2022. The email was followed by an FAQ (Frequently Asked Questions) document. This was received at 02:19 on the morning of the 17th of November 2022 but was not read by the Complainant until later that morning. Although the FAQ document made mention of severance terms, no further documents were sent before the Deadline which had been set for later that day (Irish-time). Under the heading “If You Stay” the Complainant understood from the document that the following was being stated: Blended Working was to cease with all work being office based. The Complainant had always worked exclusively from home. Weekend work was contemplated in that the Complainant understood that he would be on-call at all times, including weekends. The Complainant understood this to mean that he would be required to work weekends whereas before he occasionally did so when necessary but not pursuant to a contractual obligation. The Complainant understood that his benefits would change. The information was limited, and it was stated that additional information would be forthcoming. He was left to guess at what the changes would be, and he naturally assumed that the benefits package would change adversely. If he dd click “yes”, he did not have a full understanding as to what would happen. However, he took the view from what he could gather that the conditions of employment would be more onerous. A large group meeting took place on the 17th of November 2022. The physical location for the meeting was San Fransisco. In additional to physical attendees, others (including the Complainant) dialled into the meeting and attended virtually. Between 50 and 60 people were present or attending remotely. The meeting started at 6 pm Irish time which was 4 hours before the Deadline. The meeting had no structure as such. Very little information was imparted or discussed. A description of Mr. Elon Musk as a person was given, and it was said that much of what he did was for the betterment of humanity. The Complainant recalled senior executives from Tesla and SpaceX being present. Mr. Musk was not present. The Complainant obtained no clarity from this meeting as to what was to be expected. After the meeting and during the day, before the Deadline, the Complainant spoke to colleagues (managers and peers). There was no chain of management as such at that time and many colleagues had already been terminated. The atmosphere was chaotic. The Complainant said that it would not have been reasonable to pursue a formal grievance that day (the 17th of November 2022) although he did recall complaining about the situation to LOB his immediate line manager. There were not, to the Complainant’s knowledge any HR Vice Presidents left in the company and communications to HR were not being answered. He did not think that making a grievance would have made any difference. The Complainant accepted that he did send several electronic communications before the Deadline. He engaged in written conversation on the internal SLACK network. He did not click “Yes” and the deadline passed and he posted a communication saying “I’m out too”. He knew that by not clicking “yes” he would be locked out of the Respondent’s systems and that the Respondent would take the not clicking “yes” as him resigning. However, he did not make any formal communication to the Company of his intention to resign. The only information which he had regarding what was to follow if one did or did not click “yes” was limited to the Email of the 16th of November 2022 and the FAQ Document of the 17th of November 2022. When he did not click “yes” he expected that a severance package would be forthcoming, but this did not happen. When he awoke the next day on the 18th of November 2022 his access to the Respondent’s systems and network and his work had been cut off without any form of communication. In effect he was not permitted to return to work as and from the 18th of November 2022. On the 19th of November 2022, The Complainant received an automated email from the Respondent acknowledging his “decision to resign and accept the voluntary separation outlined to you”. His last day of work was stated as the 17th of November 2022. The Complainant did not think that he had resigned. A document was attached but there was no specific offer regarding a severance package put to him at this time. The Complainant responded to this email on the 26th of November 2022 stating that he had not at any time indicated to the Respondent that he was resigning. This email received an automated response that day indicating that he would receive a response within three business days. The Complainant sent a follow-up email on the 5th of December 2022, noting his disappointment that his email of the 26th of November 2022 had not been replied to within three business days nor had any severance proposals been received. The Complainant complained of stress and hardship which he found unacceptable. The Complainant received a more substantive email from the Respondent’s HR Department on the 7th of December 2022, some three weeks following his exclusion from the Respondent’s network and his normal work. It noted that “You decided not to click “yes” in response to Elon’s email entitled “A Fork in the Road” sent on Wednesday, November 16th, 2022….This was treated as you having served notice to resign your employment with” the Respondent. A draft severance agreement was attached (with a severance payment indicated in the sum of €22,834) which had to be completed and returned before 4pm GMT on the 21st of December 2022 and if this was not done the “the severance payment offer” would be withdrawn. The Complainant’s solicitors responded to this email by letter dated the 13th of December 2022 and a follow-up letter dated the 19th of January 2023 calling on the Respondent to re-engage him and confirming his commitment to working with the Company. No response was ever received to these letters and there was no further communication between the parties prior to the initiation of the present claims.
The Complainant gave evidence regarding his efforts to mitigate. It was agreed that the employment ended (albeit that how it did so was in dispute) on the 17th of November 2022 but that the Complainant received his normal salary up to the 18th of December 2022. The Complainant referred to a spreadsheet detailing his efforts to find alternative employment. Eventually he secured a position with an employer in the banking sector. Inclusive of base salary, pension contribution and car allowance the Complainant’s total remuneration with his current employer is €129,897. The Complainant commenced this employment on the 18th of September 2023. He actively sought employment from the date when his employment with the Respondent ceased and he was being supported by his spouse during this time. He did not have an offer of suitable alternative employment until that offered to him by his present employer. He did not deem it prudent to keep looking as he believed then and still believes that he will never be able to secure another position attracting overall remuneration anywhere near the total benefit package of €369,937 which he earned with the Respondent.
In cross-examination it was put to the Complainant that his emails to the Respondent of the 26th of November and 5th of December 2022 and his solicitor’s letter of the 19th of January 2023 were entirely at odds with the Complainant’s internal communications prior to and on the day of the deadline set by the Fork in the Road Email. Whereas the former communications all denied that the Complainant had resigned and spoke of his commitment to continuing to work for the Respondent, the latter communications clearly indicated that the Complainant had formed the intention not to click “yes” and that this was a deliberate choice on his part. Reference was made to various emails and postings by the Complainant on internal communications platforms including a system called SLACK to which not only peers, but members of management had access. It was put to the Complainant that these communications demonstrated that the Complainant made a conscious decision that he was not going to click “yes” and that these communications taken together constituted a communication to the Respondent of his intention to resign. In one communication the Complainant said, “I’ve made the decision not to press the yes button” and in a Tweet dated the 17th of November 2022 the Complainant wrote “After nine years, I’m out too…”. It was put to the Complainant that this Tweet was never taken down. It was put to the Complainant that his continuing commitment to the Respondent as stated in his communications of the 26th of November and 5th of December 2022 and his solicitors’ letter of the 19th of January 2023 were disingenuous and totally inconsistent with the other communications made by him up to and including the 17th of November 2022 all of which indicated his intention to leave his employment. The Complainant was asked whether it was the case that he had been very unhappy working with the Respondent for four or five weeks prior to the 17th of November 2022 and if this were so what changed after the 17th of November 2022? It was put to the Complainant that his stated desire to return to work was unsustainable and unreasonable, that he was looking for alternative employment at the same time as making these claims. All he had to do to demonstrate his continuing commitment was to click “yes” to the Fork in the Road Email. It was put to the Complainant that just three days after his solicitor’s letter was sent alleging undue stress and hardship, he posted a tweet with pictures of the countryside in Sligo where he was then located, and it was suggested he was relaxing and not under undue stress.
It was put to the Complainant that his contract of employment specifically provided that his place and hours of work could be changed on receipt of reasonable notice.
The Complainant said that he knew that there would be consequences if he did not click “yes” but he did not know what those consequences would be. If he did click yes, he was unsure of what his role would be. There was total uncertainty, and the atmosphere was chaotic since the takeover by Mr. Musk. The Complainant agreed that he was unhappy during this time, and he accepted that his postings and emails indicated an intention to resign. He agreed that he made a conscious and deliberate decision not to click “yes” but at no stage did he make a positive statement to the Respondent that he was actually resigning his employment. His tweet stating that he was “out too” was not taken down because it was a snapshot in time. His postings from Sligo were put up when he was away celebrating his mother’s seventieth birthday. He expressed the view that it was reasonable for him to seek other work as soon as possible after his access to his work was cut off and he would not have done so had this not occurred.
As regards the Bonus claims, the Complainant accepted that in 2022 the Respondent’s financial results were not meeting expectations and that his bonus would be lower than previous years. He did receive an email in August 2022 which he understood to have indicated that the prospects for the bonus were not looking good and he accepted that things did not improve as the year progressed. He accepted that he did not sign a document called a Plan Acceptance Form (P.A.F.) but that he would have signed that form had it been given to him. He said that the P.A.F. forms were usually managed by internal IT tools, and he did remember signing an acceptance of the package which included this tool. He accepted that nobody in the Respondent received a bonus for the year 2022
As regards mitigation of his loss it was put to the Complainant that he would have sustained no loss at all if he had clicked “yes”. The Complainant said that this was an opinion and in redirected examination he confirmed that his decision not to click “yes” (which he did not see as his resignation) was based on the very limited nature of the information provided in the Fork in the Road Email and accompanying FAQ document.
The Complainant was asked why he was contending that his current employment (and the losses preceding that employment) did not start until the 18th of September 2023 when the offer of the job was received on the 20th of July 2023. The Complainant said that the offer was made on the 20th of July 2023 but there were questions and discussions back and forth regarding the package being offered. The contract was not drafted into final form for signature by the current employer for another two or three weeks such that it was not actually signed until the 17th of August 2023 and the Complainant did not actually start work until the 18th of September 2023. The delay between signing the contract and the Complainant starting work was due to the choice to take a vacation before starting rather than to start and soon thereafter taking a vacation. The vacation was pre-booked in February 2023. He had been financially dependent on his spouse up to the point of taking up his present employment. It was a family holiday which was needed. The Complainant did not accept that it was unreasonable to assert that a person such as himself who had been earning substantial remuneration was financially dependent on his spouse.
Respondent’s Evidence Ms. Lauren Wegman gave evidence on behalf of the Respondent. She is and was at the material time the Respondent’s Senior Director of Human Resources. The Respondent went from a public company to a private company which resulted in a 50% reduction in the workforce in November 2022. There were ongoing consultations with those employees. The mood amongst those remaining was mixed; some were excited about “Twitter 2.0” while others were more negative and wanted out of the company.
The Fork in the Road Email of the 16th of November 2022 was sent to 270 employees in Ireland. This represented the balance of the workforce not affected by the redundancies. Of the 270 employees to whom the email was sent, 235 of them clicked “yes”. In relation to the remaining 35 employees Ms. Wegman said “We accepted their resignations”. Of the 235 employees who clicked “yes”, their remuneration and duties remained unchanged. To the best of her knowledge the witness was unaware of any claims against the company taken by anyone other than the complainant. The Fork in the Road Email was a way to determine who wanted to take on the challenge of Twitter 2.0. If employees did not want to take on the challenge, voluntary resignation accompanied by a severance package was the option available. A number of employees contacted her directly to discuss their own personal situations. In general, Ms. Wegman advised them that what was to follow was at that stage unknown and that the best thing to do was to click yes and if they did not like what followed they could then resign. There was support available to employees who wanted information and the Complainant would have known who to contact for information.
There were three components to the Complainant’s remuneration and benefits package as follows: 1. Base Salary 2. A Discretionary Performance Bonus 3. An Equity Share Scheme
As regards the discretionary bonus, two conditions had to be satisfied before this was paid: firstly, the Respondent had to meet its profitability goals which if met would then open the ‘bonus pool’ and secondly, the bonus to each individual employee was subject to that employee’s manager’s recommendation. In addition, each employee was required to sign a Performance Acknowledgement Form. The Complainant had done this in previous years but did not do so in 2022. In August 2022 the Respondent’s employees, including the Complainant received an email notifying them that the total bonus pool was then ‘tracking to 50%’. The bonus pool floor is 50% and if the results go below this figure the pool will not be funded and bonus payments will not be made. By the end of the year 2022 the financial results went down further such that in 2023, no member of staff in the entire organisation received a performance-based bonus relating to the year 2022. As regards the Equity Share scheme, no entitlement arose to any unvested share equity in the event of employment ceasing although anyone who ceased employment was compensated for unvested equity. Regarding the decision to put a hold on the payment of expenses, this was done as part of a costs analysis which had identified discrepancies which in turn led to an audit and a subsequent clean-up. It was a temporary measure. As regards the nature of the SLACK platform and messages posted on it by staff-members, the witness said that SLACK was a communication tool used for messages, the exchange of documents and for work-calls. It can be used for formal communications and formal resignations have been communicated using the system. As Senior Human Resources Director, the witness said that she would consider a resignation on SLACK to be a resignation. In cross-examination the witness accepted that other legal challenges in Ireland had occurred. She has a PhD in Industrial Relations Psychology and as regards whether the way in which the Complainant was in accordance with Iris HR Practice, she said that it was her belief that the Complainant resigned. The dedicated HR Business partners were identified by name. The witness did not accept that the Complainant was not able to contact any of them. Ms. Wegman denied that the Fork in the Road Email was an attempt to reduce the workforce. She said that those who did click “yes” did not have their remuneration changed. The failure to opt in by clicking “yes” led to the cessation of the Complainant’s employment. To Ms. Wegman’s knowledge the failure to click “yes” was the only reason this occurred, and the SLACK messages and Tweets were not taken into account. Ms. Wegman did not accept that the Complainant made every effort to find out what was happening before the Fork in the Road deadline. She said that the Respondent had people on the ground in Ireland and London within the applicable time-zone. In addition, help was available through the normal HR channels. Regarding the information that was made available, the witness did not accept that any reasonable person would have understood that their pay was going down. She herself clicked “yes” and she did not expect any changes to her pay. As regards changes to working hours, including working weekends as flagged in the FAQ document, the witness said that she did not believe the FAQ was about what was going to happen. it was just an FAQ to accompany the Fork in the Road Email. She confirmed that no more time was given to employees beyond that set out in the Fork in the Road Email. She expressed the view that if the Complainant had raised a formal grievance within that time-frame his employment would probably not have ended: it was put to her that this opinion lacked credibility. As regards employees, who were addressees of the Fork in the Road Email who were on leave of absence, Ms. Wegman said that the Respondent did get hold of these employees. It was put to the witness that paragraph 11.1 of the Complainant’s contract of employment states that he can only resign by notice in writing, and she said that a resignation can be effected by some other form of documentation which in the case of the Complainant was the “opt-out” list generated after the deadline set by the Fork in the Road Email had passed. [On re-direct examination the witness confirmed that over the years, a number of individuals have resigned without giving the required contractual notice.] The witness did not think that it was ideal that automated responses were sent to the Complainant’s emails following the termination of his access to his work, but she said that one had to understand the process – that priority had to be given to R.I.F. (reduction in force) employees.
Directions Regarding Comparative Figures for Total Earnings Following the completion of the oral evidence I directed the Respondent to identify an employee who remained in employment, holding a comparable position to that which was held by the Complainant, and to provide a breakdown of the monies received through payroll by such an individual for the twelve-month period from the date of cessation of the Complainant’s employment. The Respondent’s solicitors provided a set of figures with an explanatory cover letter. That letter, dated the 17th of April 2024 to the Workplace Relations Commission and copied to the Complainant’s solicitors stated (where relevant) as follows: “…please see enclosed …a simulation of the breakdown of “deferred cash consideration” the Complainant would have received had he remained in his employment for the duration of the Relevant Period. “Deferred cash consideration” is the name given to the payment of an approximate cash equivalent of the value on the date of vesting of Restricted Stock Units (“RSUs”) granted to the Complainant in the RSU agreements in which he was a participant pursuant to the Twitter, Inc 2013 Equity Incentive Plan. These RSU agreements have already been exhibited to the submissions of the parties. “Deferred cash consideration” is used to describe these payments in lieu of “Twitter” equity as the relevant RSUs in “Twitter” equity no longer exist since the takeover of the Respondent in 2022. For the avoidance of doubt, the figures in the attached document are all gross amounts and would have been paid through payroll and taxed accordingly. Insofar as any award under either the Unfair Dismissals Acts 1977-2021 or the Payment of Wages Act 1991 might encompass any deferred cash consideration element, it would be fully taxable. This is without prejudice to the Respondent’s position in this matter to date, including but not limited to the submission that share/stock options and/or equity grants (1) have not vested and will not vest in the Complainant following the cessation of his employment and (2) cannot be construed as “remuneration” for the purpose of calculating loss. Any tax advice required in relation to the foregoing is a matter for the Complainant.” The figures provided assumed a notional termination date for the Complainant as at the 18th of December 2023. The salary he would have earned was € 137,000.00 Plus The “Deferred Cash Consideration” (Gross) Payments Would Have Been: February 2023 €44,073.35 May 2023 €42,650.73 August 2023 €40,409.82 November 2023 €45,201.63 Total “Deferred Cash Consideration” which would have been paid: € 172,335.54 Total Salary Plus Deferred Cash Consideration € 309,335.54
With regard to the Base Salary figure, the parties agreed that in addition to his basic (base) salary the Complainant also received; Dental benefits per annum € 3,265.00 Pension Contributions (per annum) € 10,960.00 Total additions to base salary € 14,225.00 Accordingly it was agreed that the total figure for basic salary should be increased by this sum which thus yields an adjusted figure for Total Salary Plus Deferred Cash Consideration which would have been received: Adjusted Total: € 323,560.54 At the resumed hearing the parties agreed the foregoing figures subject to the following: The Respondent’s position that that share/stock options and/or equity grants (1) have not vested and will not vest in the Complainant following the cessation of his employment and (2) cannot be construed as “remuneration” for the purpose of calculating loss. The Complainants contention that in addition to base salary and Deferred Cash Consideration, the overall package for the purposes of calculation of loss arising from unfair dismissal should also include a performance-based bonus based on payments made in previous years. This was contested by the Respondent. The Complainant also sought by way of the Payment of Wages Claim to recover all or a proportionate amount of his performance-based bonus for the year 2022 up to and including the date of dismissal. This was also contested by the Respondent. It was agreed that the Complainant was paid his normal salary up to December 2022 albeit that his termination date was also agreed as the 18th of November 2022
Closing Submissions Both Parties made oral closing submissions as follows:
Complainant The Fork in the Road Email of the 16th of November and the FAQ Document of the 17th of November 2022 constitute the four walls of the information available to the Complainant. On any reading of those documents a change for the worst was to be expected. The Complainant raised his concerns with his direct manager as per the grievance policy, but that manager could not offer any clarity. When the Complainant was locked out from his work, he sent two emails and a solicitor’s letter in each case denying that he had resigned. Despite being at a very senior level in the organisation he received only automated responses. The undisputed evidence makes it clear that the Complainant was locked out because he resigned (on the Respondent’s case) by not clicking “yes” in response to the Fork in the Road Email and not for any other reason. This evidence is consistent with the Respondent’s own communications and in particular the automated email dated the 7th of December 2022. The Respondent did not rely on the SLACK messages or any other communications or postings by the Complainant and there is no evidence that these were relied on the 17th of November 2022. The Respondent cannot rely on the messages now. The evidence of the Respondent’s witness was factually incorrect on the issue of whether other legal challenges had been made in Ireland by other employees. This was because the witness was not properly informed, and this fact must call into question the reliability of her evidence regarding what happened in December 2022. Regarding whether anyone reading the Email and the FAQ would expect worsening conditions, her answer in the negative was not credible. Her evidence that the Complainant would not have been locked out if he had submitted a grievance was inconsistent. It was simply not credible for the Respondent to say that support was available to the Complainant before making his decision. When he asked for help, the Complainant only received automated responses. The Complainant did no more than fail to click a box to accept the request in the email. He was dismissed for failing to do so. He did not resign. The Parties both cite the same authorities as regards the definition of a resignation in that unambiguous words must be used. In the present case no words at all were used. When Ms. Wegman was asked what words were used, her response was that the Complainant did not click “yes”. Thus, the Respondent contends that silence is an unambiguous communication. Such a concept is unknown to Irish Unfair Dismissal Law or contract law. In relation to the latter, there are certain very limited situations where silence can be deemed to constitute acceptance and those exceptions do not apply to the present case. Furthermore, if the Complainant’s failure to click “yes” to the Email was a resignation, such a resignation went against the terms of the contract which would have contractually bound the Complainant to provide written notice. In the alternative, if the circumstances are interpreted as a resignation, then the Complainant argues that such a resignation was induced by a threat, ultimatum, misstatement or in circumstances which were otherwise unacceptable and that its purported acceptance by the Respondent was a dismissal or in the alternative was a constructive dismissal.
What occurred might also be characterised in the alternative as a constructive dismissal and in such a scenario the Complainant must also succeed on either of the two tests to be applied to determine when constructive dismissal has occurred as per the Labour Court decision in Cedarglade Limited v Tina Hliban UDD 1843.
Regarding the ‘contract test’, what was being proposed in the Fork in the Road Email constituted an indication by the Respondent that it “no longer intended to be bound by one or more of the essential terms of the contract such that the employee was entitled to treat himself as discharged from any further performance”.
In relation to the ‘reasonableness test’ for constrictive dismissal this was also satisfied since the Respondent behaved unreasonably in failing to give sufficient time or information to the Complainant. The Complainant did all that he could to raise his concerns with his line manager in accordance with the grievance procedure and he could do no more within the 24-hour window given. Following the termination of his work access he attempted to re-engage with the Respondent in communications which were ignored.
Regarding the Complainant’s losses the Equity Grants formed a part of the Complainant’s remuneration which towards the end of the Complainant’s employment in 2022 was paid through the payroll in cash.
As regards the Performance Bonus this formed part of the Complainant’s financial loss in respect of his claim for Unfair Dismissal and the equivalent of the performance bonus awarded in 2021 (€39,901) was to be added to the figure for the Complainant’s overall remuneration package by way of loss following from his unfair dismissal. As regards the Respondent’s contention that no bonus was paid to any employee this did not mean that the bonus to the Complainant was not payable.
As regards the Payment of Wages claim the Complainant did not receive a contractual performance bonus in respect of the year 2022 up to the date of his dismissal. The basis of calculation of the applicable bonus entitlement should be in accordance with Regulations 7 (a) and (b) of S.I. No. 287/1977 - Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 which necessarily involved looking backward from the time of dismissal rather than, as contended for by the Respondent, looking forward. As regards quantifying the amount payable this could be done either on the basis of the sum paid to the Complainant in the previous year which was €39,901 or on the basis of 30% of his 2022 salary of €137,000, a sum of €41,100 or 11/12th of this sum up to November 2022. It was submitted that the failure to pay any performance bonus for 2022 on the termination of the Complainant’s employment constituted an unlawful deduction within the meaning of that term in the Payment of Wages Act 1991 and compensation for this alleged unlawful is sought.
On foot of the authorities (cited in the written submissions) the Bonus cannot unreasonably be withheld even where a discretion to withhold existed.
Regarding the Respondent’s contention that neither the performance bonus or the Equity Grants (“Deferred Cash Consideration”) was or would be payable as unfair dismissal losses, arising from the contractual documentation governing those entitlements, any such terms would fall foul of the anti-contracting out provisions in Section 13 of the Unfair Dismissals Acts which invalidate any contractual provisions purporting to limit the protection afforded by the Acts.
On the basis of agreed inclusion of Pension Contributions and Dental Benefits (see above) the Complainant’s basic salary and entitlements (excluding bonus and Deferred Cash Consideration) should be € 151,225 (being 137,000 plus dental - €3,265 plus Pension Contributions €10,960). If the Respondent’s argument - that by failing to click “yes” to the Fork in the Road Email, the Complainant contributed 100% to his loss - were to succeed, this would have the effect of approving the unlawful actions of the Respondent in unfairly and unlawfully dismissing the Complainant. The Complainant has adduced ample evidence of appropriate efforts to mitigate his loss. If he had waited longer to take up employment he could have been criticised and if he had taken other less well-paid employment sooner, he would then also have been criticised. The Complainant was ultimately forced to take the job he presently occupies but there is no reason why he would not have continued to work for the Respondent had he not been dismissed. Where, as in the present case, the overall losses exceed 104 weeks remuneration then compensation should be awarded for this full amount capped at 104 weeks remuneration.
Respondent’s Closing Submission The Complainant resigned by not taking the simple step of clicking “yes” in response to the fork in the Road Email. From his postings/messages on SLACK we know that his evidence is untrue. There is no attempt to undertake an ex post facto assessment. We know that the Complainant made the unambiguous decision. He announced that “I made the decision not to click ‘yes’”, he said that he was “deeply troubled”. He was not happy in his job. He posted “Twitter 2.0 won’t be for me”. Much has been made of the ongoing terms being unknown. This is not the true reason for the Complainant’s resignation. Ms. Wegman said that the role would not have changed substantially. By November 2022 Mr. Musk had been in place for 2 months and not much had changed. Mr. Rooney never expressed doubts. He never contacted the designated H.R. personnel. He never asked for the separation agreement. It is not correct to say that he checked with his line manager. He said in evidence that he “spoke to” his line manager. This cannot be equated with making a grievance. The Complainant refused to confirm that he was staying and then turns around and says he is leaving and later he says that he does not want to leave. Ms. Wegman was asked about other legal cases in Ireland. It is correct to say that there is another case where injunctive relief is sought. Ms. Wegman is not a lawyer, and it is fair to say that that case is not similar to the present case. The other case involved a severance agreement and has no relevance to the present case. With regard to the case cited by the Complainant’s counsel at paragraphs 22 – 34 of his second submission concerning the issue as to whether a resignation can be valid, there may be circumstances where an employer should not accept a resignation, for example where an employee is immature or where he/she resigns in the ‘heat-of-the -moment’. In other cases, there was misrepresentation, for example where the employee was informed that the resignation he was signing was of no significance. In another case the employee was coerced into resigning under threat of reporting an issue to law enforcement authorities. None of those situations apply to the present case. Mr. Rooney knew and understood fully what he was doing because we have snapshots of his mindset at the time when he decided not to click “yes”. There were no shady deals. There were no threats. On the Complainant’s own evidence, he said that he didn’t like the bad situation in his work four to six weeks prior to the receipt of the Fork in the Road Email. Sothern v Franks Charlesly & Co and the judgement of Stephenson LJ is relied upon. In that case in effect what was held was that if clear indications of resignation cannot be taken at face value by employers, any employee who indicates an intention to resign could claim to be unfairly dismissed. The true question is not whether silence can be deemed acceptance of any offer but rather whether inaction can constitute resignation. The Workplace Relations Commission deals with cases on a near weekly basis, where employees are deemed to resign where they do not present for work or where they refuse to obey lawful instructions. Mr. Rooney contends that even if he did resign, he should have been allowed to withdraw that resignation, but he has never identified the point in time when he withdrew his resignation. His communications state that he is committed to continue working and is willing to embrace new challenges, but little weight can be attached to such statements in the light of the content of the SLACK messages. Furthermore, he was applying for jobs elsewhere from the 22nd of November 2022 onwards, which is inconsistent with being committed to working for the Respondent. The cases of Shenkin v. Donna Millet and Martin v. Yeomans can be distinguished. In the present case there was no duty on the Respondent to consider the withdrawal of the Complainant’s resignation which would only have applied if the true circumstances of the resignation became clear. In this case nothing changed, there were no special circumstances such as a ‘heat-of-the-moment’ action by the resigning employee nor does the Complainant have a disability or any form of underdevelopment such as immaturity. The obligation on the Respondent to accept a withdrawal of the Complainant’s resignation as contended for is not applicable in the present case. As regards constructive dismissal the ‘contract test’ is not satisfied as any changes implied in the Fork in the Road Email would have been well within the terms of paragraph 2.2 of the contract which allowed for reasonable changes. In any event, subsequently no changes in fact took place. There was no fundamental breach. Regarding the ‘reasonableness test’ for constructive dismissal, all the Complainant had to do was to click “yes” and he could then have raised a grievance. Not only was no grievance raised but the Complainant failed even to contact Human Resources. The Respondent’s conduct was not so unreasonable as to justify the Complainant resigning without ventilating a grievance. Regarding the Complainant’s alleged losses, the Respondent objects to the introduction of S.I. 287 of 1997 without complying with the requirement to prove the S.I. in evidence in accordance with Section 4 of the Documentary Evidence Act 1924. It is not submitted that the S.I. does not exist or that it has been misquoted but rather that the S.I. has not been formally proven in accordance with this provision. While Section 13 of the Interpretation Act 2005 specifically authorises the taking of judicial notice of Acts of the Oireachtas the section does not specifically cover statutory instruments. As regards the Discretionary Performance Bonus reliance is placed on the key provisions of the scheme set out in the Respondent’s written submission. The bonus is expressly stated as being discretionary and subject to both the Claimant and the Respondent’s performance. The employment ended before the payment date. The Complainant did not sign a Performance Acknowledgement Form. Looking at each of these issues: the contract itself excludes from the ambit of an unfair dismissal claim any claim for loss of bonus in the following terms: “In the event of your employment with Twitter coming to an end in circumstances which could give rise to a claim for wrongful and/or unfair dismissal (whether or not it is known at the time of dismissal that such a claim may ensue), you will not by virtue of such dismissal become entitled to any compensation for the loss of any rights or benefits or anticipated rights under any scheme or plan (including any equity or share option plan) operated by Twitter or any Associated Company in which you may participate.” There was no evidence that the Complainant completed a Performance Acknowledgement Form which was a specific requirement of the terms of the scheme. The Complainant’s employment came to an end before the payment date. In any event there was no pay out to any employee who remained. If the Regulations in S.I. 287 of 1997 do involve looking back, there is nothing to look back to as no performance bonus was paid, and it would be bizarre if the Complainant were to receive compensation for a 2022 bonus which no employee who remained received. No legal interpretation of the situation can alter that situation. With regard to the Complainant’s second submission at paragraphs 72-74, the Cleary Case involved different facts to the present case. In the Cleary case, the employer guaranteed a bonus of 6% of basic salary per annum. It was paid twice yearly but at the end of one of those periods the employer unilaterally withdrew the bonus. In that case the bonus was not linked to profitability nor was it contingent on performance and it did not contain clauses such as apply to the Complainant’s contract in the present case. A discretionary bonus is not an entitlement and there is a very high onus on an employee to show that the bonus was unreasonably withheld. As to this Mr. Wegman’s evidence was that the Respondent was in financial jeopardy. This is a classic example of a reasonable basis to withhold a bonus. In 2022 the Respondent suffered significant unprecedented losses. If there is an issue with this decision the Complainant should make a claim in the civil courts. The bonus is discretionary, and the Complainant is not entitled to it by contract. As regards the Equity Incentive Plan, reliance is placed on paragraphs 39 – 46 inclusive of the Respondent’s written submission. Entitlements cease when employment ends. Unvested shares revert to the Plan and even if shares do vest this does not constitute an express or implied promise. Any recovery of any sort of compensation pursuant to the scheme is precluded on termination of employment regardless of the reason for such termination. In Bunyan v. UDT [1982] I.L.R.M. 404 at page 414 the E.A.T. disallowed claims in respect of benefits enjoyed by the employee prior to termination which it held were of a discretionary nature. The finding is applicable to the present case where the discretion was no longer exercised by the employer. The fact that the method of payment in relation to the Equity Grants changed in 2022 merely reflects the change in the Respondent having reverted from a public to a private company. Only the format of payment changed. All of the rules applicable to the scheme continued to apply. If an award is made to the Complainant that encompasses entitlements under the Equity Grant Scheme, that would be a departure from the Bunyan decision in circumstances where discretionary non-vested stock would be awarded by way of remuneration. As regards Mitigation/the Failure to Mitigate pursuant to Section 7 subsection (2) (c), the Complainant could have clicked yes in response to the Fork in the Road Email, and had he done so his loss would have been avoided altogether. The Complainant contributed 100% to his loss and as such he should only receive a maximum of four weeks’ pay at the discretion of the adjudicator where no loss has been sustained. Separately, with regard to failure to mitigate, the Complainant obtained a new job offer in July of 2023. Adopting the reasoning of the Court of Appeal in England in London Underground v Edwards (No.2) [1998] IRLR 364 the Adjudicator should use his knowledge of the world outside and ask how realistic was it for it to take until July 2023 for the Complainant to find another job. The key issue in the case is that Mr. Rooney received an email asking him to confirm that he wanted to remain in the Respondent’s employment. He declined to reply. This constitutes resignation because we know from the messages that he intended to and knew that he was resigning. The correct assessment of the facts is that Mr. Rooney resigned his employment.
FINDINGS AND CONCLUSIONS
Section 1. Summary of Relevant Communications and Events The following events and communications were not disputed. The Fork in the Road Email was dated the 16th of November 2022. It set a deadline for the provision of a response as follows: “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.”
The only response possible to this email was either to click “yes” or not to do so. No other response was possible.
An FAQ (Frequently Asked Questions) Document accompanying the above email was received by the Complainant at 2:19 am on the morning of the 17th of November 2022.
In furtherance of the argument that the Complainant resigned, the Respondent relied on communications made by him on the Respondent’s internal network on the 17th of November 2022 prior to the deadline set by the Fork in the Road Email. These communications were referred to and understood by the parties as “The SLACK Messages”, SLACK being an internal term used to describe a network or series of networks used by the Respondent internally. Where relevant those communications all of which took place on the 17th of November 2022 were as follows: At 02:49 pm and 02:50 pm respectively Mr. Rooney sent two messages to a colleague MO’N as follows: “Hey – wanted to let you know im going” “I need to step away for my own sake. Im deeply troubled by whats going on here these days”
In the course of a stream which began at 09:18 am recording a Direct Message conversation with a colleague SI, at 04:14pm Mr. Rooney wrote: “BTW, iv not changed my mind – still not clicking the button…”
In the course of a stream which began at 11:13 am recording a direct message conversation with LO’B, at 05:02 pm Mr. Rooney wrote: “Hey – iv decided not to click the button” The response was: “Its been a pleasure…” Later on in the stream at 6:10 pm LOB wrote: “30 minutes only for this!” Mr. Rooney replied at 6:24: “This is mental” The immediate reply was “wild!”
At 05:11pm Mr. Rooney wrote In the course of a stream which began at 05:11 pm recording a text conversation with a colleague, KB,: “BTW, iv not changed my mind – still not clicking the button…”
At 5:17 pm on ‘s2p-tweeps-8492’ “Iv made the decision not to press the yes button and wanted to drop in a goodbye here. Not the way I would have wanted this adventure to end, but its best I step away now….I want to thank every one of you for making Twitter the most amazing experience I could have asked for. ….I wish you all the very best of luck…I will be cheering from the sidelines” At 5:19 pm posted on a thread described as ‘emea -accounting’: “Iv made the decision not to press the yes button, and wanted to drop in a goodbye here. Not the way I would have wanted this adventure to end, but its best I step away now….I want to thank every one of you for making Twitter the most amazing experience I could have asked for. ….I wish you all the very best of luck…I will be cheering from the sidelines” At 05:39 and 05:49 respectively in direct messages to a colleague NN, Mr. Rooney wrote: “…I cant stay under this new regime, it would break me” “I was struggling with the decision all day, it’s the toughest Iv had to make. But it feels right.” At 6:00 and 6:02 pm respectively in direct message between the Complainant and a colleague, AK read as follows: “ hey Gary – just wanted to say thanks for sharing your choice, and I have really enjoyed working with you…” Mr. Rooney responded: “…very difficult decision, but it’s the right one for me…”
At 06:10 pm in a direct message to a colleague KS, Mr. Rooney wrote “Twitter 2.0 wont be for you and me”
At 06:15 pm in a message forum Mr. Rooney sent a message to two colleague HK and LJ saying: “Hi L… and H… Wanted to let you both know iv made the call not to stay at Twitter. I will prob loose access by tomorrow, so wanted to say a massive thank you to both of you for everything you have done for me personally over all these years”
Aside from these communications the Complainant virtually attended a large meeting involving a number of staff in the organisation. The meeting started at 6 pm Irish time which the Complainant said was 4 hours before the Deadline. The Complainant said that he did not glean any useful information at this meeting. It is agreed that the Complainant did not click “yes” by the time the deadline passed in Irish Time.
It was also agreed that on the 18th of November 2022 the Complainant’s access to the Respondent’s systems and network, and to his work had been cut off without any form of communication. On the 19th of November 2022, The Complainant received an automated email from the Respondent acknowledging his “decision to resign and accept the voluntary separation outlined to you”. The Complainant responded to this email on the 26th of November 2022 stating that he had not at any time indicated to the Respondent that he was resigning. He conveyed his dissatisfaction with the way in which he had been treated and the stress to which he had been subjected. This email received an automated response that day indicating that he would receive a response within three business days. The Complainant sent a follow-up email on the 5th of December 2022, noting his disappointment that his email of the 26th of November 2022 had not been replied to within three business days. The Respondent’s HR Department emailed the Complainant on the 7th of December 2022 noting that “You decided not to click “yes” in response to Elon’s email entitled “A Fork in the Road” sent on Wednesday, November 16th, 2022….This was treated as you having served notice to resign your employment with” the Respondent. The Complainant’s solicitors responded to this email by letter dated the 13th of December 2022. This letter noted that the Complainant had not confirmed that he wished to terminate his employment and that he was committed to working with the Respondent and was ready to embrace new challenges. A follow-up letter dated the 19th of January 2023 noted that the Complainant had been removed from the payroll and demanding his reinstatement. The Respondent did not respond to this email and there were no further communications or interactions between the parties.
Section 2. The Unfair Dismissal Claim - Liability Part A. How the Employment Ended The Respondent relied completely on the contention that the Complainant resigned voluntarily, and his resignation having been accepted by the Respondent, that is the end of the matter. It is not contended that he was dismissed. The Complainant’s primary contention is that he did not resign. All he did was fail to click “yes” in response to the Fork in the Road Email of the 16th of November 2022 and because of this, his employment was terminated. Thereafter the Respondent refused to engage with him and his solicitor after he was excluded from his work. If the Complainant did not, as a matter of law, resign his employment, then it follows that his exclusion from his employment as and from the 18th of November 2022 and his removal from the payroll in December 2022 was a dismissal. As no grounds for such dismissal (if so found) are put forward, the dismissal will be deemed unfair pursuant to the presumption of unfairness provided for in Section 6. If on the other hand, if it is found as a matter of law that the Complainant did resign, the Complainant contended that such resignation (if so found) was invalid because it was procured improperly or unfairly in the circumstances and thus the purported acceptance by the Respondent of that resignation and subsequent refusal to engage was an unfair dismissal. A further alternative argument was made that if the resignation was valid then the Complainant was constructively dismissed when confronted with a breach of contract and/or unreasonable behaviour on the part of the Respondent The Respondent invited me to consider the SLACK messages as evidence of a clear intention to resign on the part of the Complainant in the sense that they demonstrate that he made a deliberate and conscious decision not to click “yes” in response to the Fork in the Road Email. It was contended that those communications are completely at odds with the communications made (by the Complainant and his solicitor) after the Complainant’s access was denied on and following the 18th of November 2022. Those latter communications denied that the Complainant had resigned and stated his commitment to remain working for the Respondent. Those communications were characterised by the Respondent as disingenuous and lacking in credibility. The evidence of Ms. Wegman was that a resignation can be effected by some other form of documentation which, in the case of the Complainant was the “opt-out” list generated after the deadline, set by the Fork in the Road Email, had passed. Ms Wegman stated in evidence that the failure to opt in by clicking “yes” led to the cessation of the Complainant’s employment. To Ms. Wegman’s knowledge the failure to click “yes” was the only reason this occurred, and the SLACK messages and Tweets were not taken into account. There was no evidence put before me that the SLACK messages were considered or that they played any role whatsoever in the decision to terminate the Complainant’s access to his work the next day, on the 18th of November 2022, nor was any reference made to those communications in the communications from the Respondent to the Complainant on the 19th of November and 7th of December 2022. It is for this reason that I do not make any findings as to whether the SLACK communications could be construed as a resignation. If actual words such as “resign” or “resignation” had been used in any of the messages (which they were not) and any message or communication using such words had been passed up the chain of command and acted upon, that would be a different matter. However that is not what actually occurred. The SLACK messages have no relevance to the question as to what brought about the termination of the Complainant’s employment. The answer to that question is clear. I find on the evidence documentation and submissions presented that the Complainant’s employment came to an end because he did not click “yes” to the Fork in the Road Email of the 16th of November 2022 and for that reason alone This then leads to the net question as to whether the failure to click yes, or, to use Ms. Wegman description, to “opt-in” by way of response to the Fork in the Road Email, was or was capable by itself, of constituting a resignation as recognised by Irish Law.
Part B. Definition of Resignation In the UK case of Sothern v Franks Charlesly & Co [1981] IRLR 278 as cited by the EAT in Cafferkey v Metrotech Services Ltd UD 1036/1988 the following statement was made: “in the normal case if unequivocal words of resignation are used the employer is entitled immediately to accept the resignation and act accordingly”. in Redmond “Dismissal Law” (2017) at para. [22.22] it is stated: “When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned.” In Sothern v Franks Charlesly & Co. the Plaintiff was present at a partner’s meeting as the partnership secretary. At the end of the meeting, she said, “I am resigning” and there and then the partners were held to have accepted the resignation. The next day the Plaintiff attended for work and said that she was staying on and that if the employer wanted her to leave, they would have to dismiss her and give her reasons. All three judges agreed that the words used constituted unambiguous words of resignation which said resignation was accepted by the employer and the Plaintiff had not been dismissed. My attention was drawn by Counsel for the Respondent to a passage from the judgement of Stephenson L.J. wherein he expressed a preference for an instinctive interpretation of the words uttered by the employee which he considered to be unambiguous. Further if this were not so then every employee who told his/her employers that he/she had decided to resign could claim successfully to have been dismissed. The decision in the Court of Appeal was unanimous to the effect that the employee had resigned. The judgement of Fox LJ indicates that “it was not a case of an immature employee, or of a decision taken in the heat of the moment or of an employee being jostled into a decision by the employers.” and this was so even though (as noted by Stephenson LJ) the Plaintiff had a row with the senior partner hours before the meeting. The judgements reflect a conflict of evidence. The Plaintiff’s evidence was that she said that if the senior partner’s attitude towards her remained the same her position would be untenable, and she would be forced to resign. This was supported to an extent by one of the partners present whereas the evidence of other partners present (who could recall what the Plaintiff said) was that her resignation was not conditional. The partner with whom she had the row was not present at the meeting This decision appears to turn on its own facts and given that it was decided in 1981 it is quite possible that a similar set of facts, if presented today might generate a different outcome especially in the light of the practice that has evolved in recent years where it is considered good practice (and quaere an obligation), for an employer to consult with an employee who may have resigned in circumstances of conflict or on foot of a grievance and to afford such an employee the opportunity to re-consider or (where warranted by the circumstances) to “cool off” before proceeding with a resignation. Aside from the foregoing reservation and of more significance to the present case is the fact that in the Sothern case, the Plaintiff made a positive verbal communication to her employer at a formal partner’s meeting. In the present case It is accepted that the Complainant did not click “yes” to the Fork in the Road Email, and this cannot by any reasonable standards be deemed to equate with the use of unequivocal or unambiguous words of resignation. In the present case no words were used at all. For this reason, I find that the Complainant’s failure to communicate to the Respondent by clicking “yes” in response to the Fork in the Road Email was not capable of and did not constitute an act of resignation. Counsel for the Respondent argued that the true question is not whether silence can be deemed acceptance of any offer but rather whether inaction can constitute resignation. I agree with this formulation. However, counsel then went on to argue that employees are frequently deemed to have resigned where they do not present for work or where they refuse to obey lawful instructions. I cannot agree that such situations are commonplace and where employees do not present for work it is common for the employer to make enquiry with an employee as to why he or she has not presented for work, or at very least to warn the employee that his/her continued absence will be deemed a resignation if the employee does not present for work and/or explain his/her failure to do so. As regards failure to obey a lawful instruction it is also commonplace for such an occurrence to trigger a disciplinary process or at very least an engagement between the employer and employee where the employee is advised that he/she will be dismissed if he/she persists in his /her refusal to comply with the instruction. I cannot agree that a mere failure to obey a lawful instruction by itself is commonly deemed a resignation. Either way, neither of these situations arose in the present case. The Complainant was available for and tried to access his work but was prevented from doing so by the Respondent on the 18th of November 2022. It was not contended that the Fork in the Road Email constituted a lawful instruction. It is noteworthy that the letters from the Complainant’s solicitor dated the 13th of December 2022 and the 19th of January 2023 received no response from the Respondent. The Respondent has provided no explanation for the failure to engage with the Complainant’s solicitor and the only explanation which is apparent from the correspondence is that the Respondent relied completely on what it perceived to be the Complainant’s resignation, which it purported to accept. As I have found however, the Complainant did not resign and the purported acceptance of what was wrongly characterised as his resignation, in fact and in law constituted a dismissal. Given the basis of the finding that the Complainant was dismissed, there is no necessity to consider or to rule upon the arguments predicated upon either the purported acceptance of an invalid resignation/resignation wrongfully procured or as to whether what occurred was a constructive dismissal. Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows: Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal. Section (6) Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows: In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
Part C, Unfair Dismissal Claim – Conclusion on Liability In the present case I have found that the Complainant was dismissed by the Respondent. That dismissal enjoys the presumption of unfairness as provided for by Section (6) subsections (1) and (6), which presumption, in the absence of any substantial grounds justifying the dismissal (pursuant to Section (6) subsection (4)) having been offered by the Respondent, has not been rebutted. Accordingly, I find that the Complainant was unfairly dismissed within the meaning of the Unfair Dismissals Acts 1977-2015.
Section 3. Redress for Unfair Dismissal
Both parties indicated at the hearing that the preferred remedy (if any) in the event of a finding of unfair dismissal was compensation. Taking account of that indication and the fact that the Complainant is now in alternative employment, I determine that the most appropriate and workable form of redress is compensation.
Part A Failure to Click “yes” to the Email as a Contribution Requiring a Deduction from Compensation Before addressing the quantum of compensation to be assessed I must first deal with the contention by the Respondent that the Complainant contributed to his loss to the level of 100% by failing to click “yes” in response to the Fork in the Road Email of the 16th of November 2022. This argument was premised specifically on Section 7 subsection (2) (c). it was submitted that the Complainant could have clicked “yes” in response to the Fork in the Road Email, and had he done so, his loss would have been avoided altogether. Thus, it was submitted that the Complainant contributed 100% to his loss and so he should only receive a maximum of four week’s pay at the discretion of the adjudicator where no loss has been sustained.
Where relevant to the present case. Section 7 of the Unfair Dismissals Acts 1977-2015 provides: (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. (d)…[Not applicable to the present case] (e)…[Not applicable to the present case] (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
The Respondent’s argument was only predicated on ground (c), that the Complainant by the failing to click “yes” to the Fork in the Road Email failed to adopt a ‘measure’ to mitigate his loss. I have already found that the Respondent’s actions constituted unfair dismissal. The proximate cause of the loss sustained by the Complainant was that unfair dismissal. It thus follows that the failure to click “yes” is incapable logically of being construed as a failure to mitigate the loss because at the time of the act of omission, or as per the words of the provision, the “failure” to “adopt” the “measure” of clicking “yes”, the loss had yet to occur. It follows that I do not accept the submission as formulated and the failure to click “yes” was not a failure to mitigate the loss.
I have considered and made the foregoing finding on the basis of Section 7 subsection (2) (c) being the specific ground relied upon. It may well be the case that the Respondent felt constrained from relying on paragraph (f) which envisages a dismissal - but that ground could have been argued without prejudice to that denial. As for paragraph (b) it seems to me that this could have been relied upon as it can accommodate the type of factual argument which was made and the evidence which was given. It might also be worthy of acknowledgement that the provisions are not easily interpreted and although they each refer to potentially different specific situations, those situations may frequently overlap or be difficult to distinguish from each other. Typically, in any unfair dismissal case ‘contributory conduct’ as it is commonly known, will arise where the actions (including omission(s)) of the employee bring about or play a significant role in the dismissal. An obvious example is misconduct or insubordination but, in some cases, less egregious conduct (including omission) such as poor judgement can constitute contributory conduct. A simple failure to mitigate is self-explanatory (and will be considered as a separate issue in this case below) but it is also possible that a want of care on the part of an employee could contribute to loss or dismissal or in some cases to both dismissal and to loss. As the paragraphs are drafted, paragraph (b) is capable of capturing conduct contributing either to dismissal or to loss or both, whereas the other two paragraphs are restricted only to mitigation in the case of paragraph (c) and only to conduct contributing to dismissal in the case of paragraph (f). Given the complexity of the provisions involved I deem it appropriate in the interest of fairness and completeness, to offer a ruling on the argument made by the Respondent regarding the failure to click “yes” to the Fork in the Road Email by reference to paragraph (b) and (f) as well as the ground actually relied on which was paragraph (c).
A case cited by counsel for the Respondent – albeit on another point – which deals with the conduct of the dismissed employee is Bunyan v UDT (Ireland) Ltd [1982] ILRM 404. Paragraph (f) was added by s.6(b) of the 1993 Amendment Act and was not in force when the Bunyan decision was made by the Employment Appeals Tribunal. In that decision the E.A.T. applied Section 7 subsection (2) paragraph (b) and concluded that the employee, although unfairly dismissed, had substantially contributed to the loss sustained by him based on his neglect to verify certain matters a year prior to his dismissal together with “a serious breach of confidence” which was held to have “contributed to the strained atmosphere amongst the top executives”. It seems likely that the same decision, if made today might have applied paragraph (f) but even so, it is evident that the deduction from the employee’s compensation was made because of culpable or blameworthy conduct on his part and this theme is at the heart of the proper interpretation of all three paragraphs. I am not aware of any case and none have been cited to me where a deduction of any sort was made from compensation based on conduct which was not blameworthy or culpable in some sense and though such terms do not appear in the statutory provisions I take the view that in order to establish a contribution by act or omission on the part of an employee to his/her dismissal or to the consequent loss ensuing therefrom there must be some evidence of blameworthiness or culpability.
Applying the foregoing analysis to the facts of the present case, the following question arises: was the Complainant’s failure to click “yes” to the Fork in the Road Email culpable or blameworthy or put more simply, did he do anything wrong by not clicking “yes”?
I find that the Complainant was not guilty of a breach of his contract, nor was he instructed to click “yes” such that his failure to do so could be deemed insubordination.
In her evidence, Ms. Wegman stated those who did click “yes” did not have their remuneration changed. A number of employees contacted her directly to discuss their own personal situations. In general, she advised them that what was to follow was at that stage unknown and that the best thing to do was to click “yes” and if they did not like what followed they could then resign. There was, she said, support available to employees who wanted information, and the Complainant would have known who to contact for information. She also expressed the view that if the Complainant had raised a formal grievance within the timeframe set in the Fork in the Road Email, that his employment would probably not have ended.
The implication of this evidence, even if not framed in those terms by the witness or counsel, is that the Complainant acted rashly, that he failed to take such advice and/or to seek such information as was available and that in effect he was the author of his own misfortune insofar as the loss would have been avoided altogether, he had clicked “yes”.
In relation to the advice which Ms. Wegman gave to other employees who contacted her, it is evident that she too was unsure as to what would happen if employees clicked “yes”. As it transpired, the advice she was giving to those who contacted her turned out to be prudent insofar as the remuneration of those who clicked “yes” did not in fact change. However, she did not give this advice to the Complainant, and it is most unfortunate that such advice was not included in the FAQ document (if not in the Fork in the Road Email) in a prominent place – or at all. The FAQ document contains the following entry
“What happens if I don’t confirm that I want to stay at Twitter, but do not agree to the severance offer? Will I be fired or laid off?
[US] If you don’t click “yes”, we will treat that as a resignation. You will stay on payroll and continue to be paid and receive your medical benefits for your non working time but will not receive the additional sums described above
[INTERNATIONAL] If you don’t click “yes”. We will liaise with you in relation to the next steps in accordance with our legal obligations. “
There was no option available where an employee could click “yes” but indicate that he or she was not willing to accept changes to his/her terms of employment. Insofar as it is suggested that the Complainant could have made contact with other HR Partners I am mindful of Ms. Wegman’s evidence when she said that did not think that it was ideal that automated responses were sent to the Complainant’s emails following the termination of his access to his work, but she said that one had to understand the process – that priority had to be given to R.I.F. (reduction in force) employees. This statement is strongly suggestive that the people on the ground in Ireland and London, within the applicable time-zone who were available, were very busy indeed and this lends considerable credibility to the Complainant’s assertion that nobody was available to give him information. As is in fact recorded in the SLACK messages, the Complainant did message LOB one of his line managers on the 17th of November, as the deadline approached, and this individual commented (as quoted above) “30 minutes only for this!”. Mr. Rooney replied: “This is mental” and his immediate reply was: “wild!”. Mr. Musk did not give evidence, but the Respondent indicated that it would stand over its communications and actions such as they are. In such circumstances I am left with the clear impression that the Fork in the Road Email took the vast majority of the Respondent’s personnel completely by surprise. It is also the case that the organisation was already dealing with the compulsory redundancies of 50% of its workforce, which process was still in train when the Email emerged. When it did so it imposed a time limit of no more than a day or so (depending on time zone) during which employees were required to opt in to changes in their terms of employment. In the Complainant’s case this meant that he would be required to work in the office when he had always worked from home. He was likely to be required to work at weekends which he had not done up to that time. As regards “Benefit Changes”, the only information available (from the FAQ Document) was “Additional Information forthcoming in the coming days”. The FAQ document itself was not received by the Complainant until 2:19 am (Irish Time) in the early hours of the 17th of November 2022.
Although the Respondent argued that the Complainant’s contract of employment specifically provided that his place and hours of work could be changed on receipt of reasonable notice, the Complainant maintained that if these changes were contractually permitted, the Respondent would not have called on employees to agree or not agree; it would have simply implemented the changes. In the circumstances It was submitted that the Respondent could not maintain that the changes described in vague terms were contractually permitted, that claim being inconsistent with its own actions of seeking agreement or resignation. My own assessment and finding is that the changes were not clearly set out such that it is impossible to determine whether or not they would have been of the type that would allow unilateral change without consent pursuant to this clause. It is clear however that the Respondent did seek consent which appears to be an acceptance that the changes (either as set out in the FAQ or yet to follow) were beyond the scope of the changes clause.
Most importantly, insofar as the clause permitting changes to contractual terms was relied upon, it was not complied with by the Respondent insofar as 24 hours cannot under any circumstances be considered as “reasonable notice” as required by the contractual provision relied upon. Moreover, I find that 24 hours was insufficient notice to enable any employee reasonably to construe and to make an informed decision as to what to do in response to the Email and this is so even if HR support was readily available to and accessible by the Complainant.
I am not in a position to identify or assess the rationale of the Fork in the Road Email. However judging it and its accompanying FAQs on face value, its purpose appears to have been an attempt to secure agreement to an alteration or an open-ended willingness to accept alteration in terms and conditions of employment and/or to elicit volunteers for voluntary redundancy. However, in neither case was sufficient time or information provided or made available for any prudent employee to make an informed decision as was their contractual right. The choices with which the Complainant was faced were vaguely and incompletely set out and required further information, time and the procurement of properly informed legal advice. No employee when faced such a situation could possibly be faulted for refusing to be compelled to give an open-ended unqualified assent to any of the proposals. There was no facility to agree to anything that was proposed on a ‘without prejudice’, ‘under protest’ or ‘subject to contract’ or any other conditional basis. The plain reality is that the Complainant’s dismissal and consequent loss could have been avoided by clicking “yes” but I do not find that he can be faulted, held responsible, culpable, negligent, careless or in breach of contract in any way within the parameters of Section 7 (2) (b), (c) or (f) or at all, simply on the basis that by clicking “yes” the end result, with the benefit of hindsight, would have been the avoidance of the loss sustained. In conclusion I find that the Complainants failure to click “yes” did not cause or contribute to the dismissal or to the loss.
Part B Preliminary Issue Raised in Relation to The Necessity of Proving the Existence and Content of Statutory Instrument 287 of 1977 Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 Before dealing with the submission of the parties in relation to alleged performance bonus entitlement and how and to what extent the Complainant’s total overall package is recoverable by way of compensation in the present proceedings, I must first deal with a legal proof issue raised by the Respondent. Mr. Curran B.L. on behalf of the Respondent submitted that the delegated legislation relied upon by the Complainant had not been formally proven in the manner prescribed by Section 4 of the Documentary Evidence Act 1925. He contended that although judges (and by extension – Adjudication Officers) are specifically permitted to take judicial notice of Acts of the Oireachtas by Section 13 of the Interpretation Act 2005, that provision does not extend to delegated legislation, in this case, Statutory Instrument 287 of 1977 Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 upon which the Complainant seeks to rely. Section 4 of the Documentary Evidence Act 1925 provides as follows: “4.—(1) Prima facie evidence of any rules, orders, regulations, or byelaws to which this section applies, may be given in all Courts of Justice and in all legal proceedings by the production of a copy of the Iris Oifigiúil purporting to contain such rules, orders, regulations, or byelaws or by the production of a copy of such rules, orders, regulations, or byelaws printed under the superintendence or authority of and published by the Stationery Office. (2) This section applies to all rules, orders, regulations and byelaws made under the authority of any British Statute or any Act of the Oireachtas by— (a) the Governor-General on the advice of the Executive Council, or (b) the Executive Council, or (c) a Minister, or (d) any statutory body, corporate or unincorporate, exercising throughout the whole of Saorstát Eireann any function of government or discharging throughout the whole of Saorstát Eireann any public duties in relation to public administration. “ In considering the Respondent’s submission on this important issue I have had regard to the judgement of the Supreme Court in Director of Public Prosecutions v Collins [1981] I.L.R.M. 447 which arose from a challenge to a criminal prosecution on a number of grounds including that the Statutory Instrument which created the offence under which the Respondent had been convicted, was not strictly proven in accordance with Section 4 of the Documentary Evidence Act 1925. Delivering the judgement of the Court, Hency J said of Section 4: It is to be noted that what s. 4(1) of the Documentary Evidence Act, 1925 does is to enable prima facie evidence of rules, orders, regulations, or bye-laws to be given with almost the same facility as if they were statutes… Further on in the judgement the following observation and finding is made: “However, it is important to observe that the power given by s.4(1) of the 1925 Act to treat as prima facie evidence the mere production of the designated version of the instrument in question is enabling only. It does not extinguish or curb the inherent power of a court in certain circumstances to treat particular matters as worthy of judicial notice, and so to be acted on as if they had been formally proved. That is the position when a course of judicial conduct is so inveterate and unquestioned and of such a nature that it necessarily postulates the existence and validity of a statutory instrument. In such circumstances the court is entitled to take judicial notice of the statutory instrument.” Henchy J. identified an example in the case of The State (Taylor) v Circuit Judge of Wicklow and Others [1951] IR 311 where: “In the course of a careful and fully reasoned judgment Davitt J said (at p. 321):
[The Circuit Court Judge] said that he had been administering the Road Traffic Act since he came upon the Bench and that he was perfectly well aware that it was in force. “
Approving of this approach, Henchy J went on in the judgment to make the following finding:
“This appears to me, of its very essence, to be a sound and reasonable view to take.
I adopt that approach in answering the question I am now considering. I, as well as every judge who has dealt with a prosecution involving the Regulations, cannot ignore the fact that those Regulations have been made by the Minister of the Environment under the power in that behalf vested in him under s. 26 of the 1978 Act, and that they have been published by the Stationery Office as Statutory Instrument No. 193 of 1978. Each member of the court has had that statutory instrument (containing the form prescribed for s. 21 and the certificate prescribed for s. 22) produced to him in this and other cases. Judgments have issued from this and other courts which specifically acknowledge the due making of the Regulations. There must have been hundreds of prosecutions in which prima facie evidence of the Regulations was given in accordance with s. 4(1) of the Documentary Evidence Act, 1925 by the production of a copy published by the Stationery Office. Our judicial experience so informs us. If, as a result of the mere mischance that such a copy was not produced in this case, a judge were to hold that the prosecution must fail for want of proof of the Regulations, such self-induced judicial blindness would bring the administration of the law into disrepute. I reluctantly but unavoidably categorize this defence point as worthless. Whatever thin technicality it represents is outweighed by the fact that the due administration of justice requires that when the making of the Regulations is so notorious, well established, embedded in judicial decisions, and susceptible of incontrovertible proof, a judge could not but take judicial notice of their making.”
The Regulations set out in S.I. 287/1977 are long-established and well known and are often cited in cases before and in decisions issued by the WRC (and its predecessors), the Labour Court and the Civil Courts. The text of the Regulations is readily available and faithfully and uncontrovertibly transcribed in a reliable format on a Government Sponsored website (irishstatutebook.ie). In such circumstances, I adopt the reasoning of the Supreme Court as set out above insofar as I deem the making of the Regulations set out in S.I. 287/1977 to be “so notorious, well established, embedded in judicial decisions, and susceptible of incontrovertible proof” that I cannot but take (the equivalent of) judicial notice of their making. I would add, should this line of argument arise in other cases before warranted adjudication officers or other quasi-judicial making bodies, that it would be most likely that such decision-makers would also take judicial notice of any delegated legislation duly made pursuant to enabling provisions within the statutory matrix of employment and employment equality law and any other area of law where delegated legislation meets the standards enunciated in the decision of the late Henchy J. , as cited above.
Part C Finding in Relation to Recovery of The Performance Bonus Including Findings Regarding the Payment of Wages Claim
This aspect of the Complainant’s compensation package yielded two separate claims as follows:
1. Separate Claim Pursuant to the Payment of Wages Act 1991 The Complainant contended that in the year prior to the year of his dismissal he was paid a performance bonus. He alleged that in 2022 when his employment ended, he had not received the bonus which he contended was earned and to which he was entitled prior to his dismissal. The loss was thus characterised as a loss preceding the dismissal rather than as a consequence of it, and for this reason it was alleged that the non-payment of the bonus entitlement earned and payable prior to dismissal was an unlawful deduction which the Complainant sought to recoup pursuant to the Payment of Wages Act 1991.
2. Unfair Dismissal Claim – Performance Bonus Forming Component of Financial Loss Claimed The Complainant contended for a figure reflecting a bonus entitlement to be included in any calculation of financial loss for the purposes of an award of compensation for Unfair Dismissal.
I take the view that if the Payment of Wages claim succeeds it must do so on the basis that the Complainant had an entitlement to payment of his bonus for the year prior to his dismissal. In this particular case (and other cases may be different) I take the further view that insofar as the Payment of Wages Claim stands or fails on whether essentially a contractual entitlement to the performance bonus is found to exist, the inclusion or exclusion of a bonus entitlement for the purposes of calculation of financial losses for Unfair dismissal purposes must follow the same fate. This is not to say that the two claims are exactly the same but only to identify the fundamental theme which is common to both and that is the issue of entitlement where the bonus is expressed in its terms to be discretionary and the Respondent alleges that this discretion was properly exercised so as to exclude an entitlement to the bonus.
The Complainant contends that the bonus as well as the remuneration (for unfair dismissal purposes) should be calculated by reference to Regulations 7 (a) and (b) of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 S.I. No. 287/1977 – as interpreted in A Sales Executive v A Software Company ADJ-27573 by conducting a ‘Look Back period’ of 39 weeks to assess what sum was earned during 26 weeks of that period rather than what was paid. By this method it was contended the payment of the 2021 bonus in 2022 was captured. However for the purposes of the Payment of Wages Act claim the Complainant contended that the bonus should be calculated by reference to the 2022 salary which would yield a higher figure based on a percentage of the 2022 salary rather than a simple replication of the 2021 bonus which was paid.
Payment of Wages Act Case-Law Regarding Bonus The statement (albeit probably obiter) of the Employment Appeals Tribunal in Devlin v. Electricity Supply Board PW550/2011that: “A discretionary bonus loses its discretionary character once it is declared (Atrill and others v Dresdner Kleinwort Limited and another [2013] EWCA 134.” indicates that a bonus becomes payable or put another way, the contractual obligation to pay it will crystallise when the bonus is declared.
In Lichters v DEPFA Bank Plc [2012] 23 E.L.R. 258 Hedigan J. approved and adopted the following passage from the decision of the Court of Appeal for England and Wales in Clarke v Nomura International [2000] I.R.L.R. 766, “An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way.” However, it seemed to Hedigan J. that “this criterion sets a very high hurdle for the plaintiffs to overcome” and in that case the Plaintiff’s claim failed.
The Reporter’s note indicate that the decision was under appeal to the Supreme Court but there is no further decision available. In any event this decision was subsequently approved and applied by McDermott J. in Cleary v. B & Q Ireland Limited [2016] 27 E.L.R. 121.
The Cleary decision was relied upon by the Complainant and in particular the following passage
“I am satisfied that in the circumstances of this case the overall discretionary nature of the bonus scheme does not extend to a withholding of the bonus due, in respect of that period, in respect of which the bonus was quantified and payable under the scheme, subject to compliance with the eligibility provisions. I am satisfied that the contract of employment and bonus scheme must be interpreted reasonably. The discretion to withdraw the bonus scheme at any time, in my view, was always intended to apply in futuro and attached to the conferring of bonuses, as yet unaccrued, under the terms of the scheme. The payment of the bonus crystallised as a contractual obligation once it was ‘earned’ in accordance with the terms of the scheme as operated”
The Respondent sought to distinguish that case as turning on different facts. Having considered the Cleary decision in detail, and particularly the actual finding made, I too am of the view that it can be distinguished from the facts of the present case.
A fuller insight into the facts of the case can be gleaned from reading the paragraphs immediately preceding the one cited by the Complainant above. Those paragraphs are as follows:
“55. The court is satisfied that the bonus at issue in this case was not declared by the employer at any stage and the Tribunal was not invited to and did not make any finding that a bonus had been declared. There was no announcement that a particular bonus was payable. The bonus scheme clearly operated on a basis that did not require such an announcement. It was payable at the rate of three per cent in June 2012 for the period worked between August 2011 and January 2012. The attempt to categorise the bonus payable in respect of the period from August 2011 to January2012 as a form of declared bonus is therefore misconceived.
56. There is no doubt that the relevant appellants provided their labour during this period and had an expectation, having done so, that the three per cent bonus would be paid. That expectation was based upon the terms of the bonus scheme which provided that an employee was entitled to the payment of the three per cent if he/she had the requisite period of service to enable him/her to benefit from the scheme and had worked the relevant accrual period, i.e. the six months to which it applied. It was unilaterally withdrawn from them. However, the employer contends that this was in accordance with the terms of the contract of employment and bonus scheme which provides that the bonus “may be reviewed or withdrawn at any time”. The employer accepts that their employees' expectations were understandable, if not legally warranted, but submit that whether post or pre- the summer or winter period covered in any particular year, it is entitled to withdraw the bonus. In the case of a period of the relevant year not yet worked, the withdrawal of the bonus simply means that the balance of the three per cent cannot be earned because it cannot accrue. Therefore, it is not payable. Similarly, it is said that the bonus scheme, once withdrawn, means that it is no longer applicable to the first part of the year which has been worked and in respect of which the three per cent bonus would otherwise have accrued: it simply need not and will not be paid. It is submitted that the clear and unambiguous terms of the bonus clause and scheme allow for this result and that the Tribunal was correct in so finding. I respectfully disagree.”
[Emphasis added]
In the Cleary case the employer withdrew the bonus scheme unilaterally in January of 2012. The employees claimed that they were entitled to be paid the bonus which had accrued and was payable up to that time, but they also sought payment in respect of work done after that time. The employees contended that the employer was not entitled to withdraw the bonus at all. The employer contended that it was entitled to withdraw the bonus on the basis of financial difficulties, but the employer went further and claimed that it was not liable to pay any bonus, including the bonus which had accrued prior to January 2012, when the scheme was withdrawn. The outcome was such that the employer was held entitled to withdraw the bonus but that it could only do so prospectively from that date, and it was liable to pay any entitlements that were quantified and payable under the scheme prior to that date. The judgement puts it thus:
“…was the employer, on a proper construction of the contract and scheme, entitled to withdraw it both prospectively and retrospectively? It seems to me that the employer was entitled to withdraw the bonus scheme prospectively. However, it is claimed that though the contract states it may be withdrawn “at any time” this should not be interpreted literally and applied retrospectively in the circumstances of this case.”
The key finding, against the foregoing factual backdrop, was that the bonus earned before the scheme was withdrawn was payable as per the last sentence of the passage quoted by the Complainant - on the basis that “The payment of the bonus crystallised as a contractual obligation once it was ‘earned’ in accordance with the terms of the scheme as operated”
The foregoing analysis leads me to ask the following questions:
1. Was a bonus declared 2. Was the manner in which the Respondent exercised its discretion under the scheme such that no reasonable employer would have exercised the discretion in that way? Even if the answers to the first two questions is in the negative, a third question arguably arises (on the strength of the Cleary Case) as follows: 3. Was any aspect of the bonus “earned” prior to the exercise of the discretion and thus was the bonus payable in whole or in part for such time as it was earned?
The particular scheme in the present case was explained by Ms. Wegman in her evidence as follows: two conditions had to be satisfied before it was paid: firstly, the Respondent had to meet its profitability goals which, if met would then open the ‘bonus pool’ and secondly, the bonus to each individual employee was subject to that employee’s manager’s recommendation. In his evidence under cross-examination, the Complainant accepted that in 2022 the Respondent’s financial results were not meeting expectations and that his bonus would be lower than previous years. He did receive an email in August 2022 which he understood to have indicated that the prospects for the bonus were not looking good and he accepted that things did not improve as the year progressed.
The way this scheme operated was such that the company’s results would be analysed towards the end of the relevant year and based on those results a ‘bonus pool’ would be opened in accordance with those results and bonus payments would be paid out from this pool. In such circumstances there was no guarantee to any employee that he/she would receive any bonus simply by working during a particular period as all entitlements for a particular year were based on the results at the end of that year. From the evidence I find that the Complainant understood the workings of the scheme and that no fixed bonus, or for that matter any bonus was guaranteed. I also note that the evidence - that no employee in the entire organisation received a bonus for the year 2022 - was not challenged.
In the light of the above evidence and findings I would answer the three questions as follows: 1. No bonus was ever declared. In fact, it was the opposite.
2. It is arguable that the non-payment of the bonus was a direct application of the rules of the scheme i.e. results did not open the pool – no pool – no bonus. If this is correct than the issue of the exercise of a discretion does not even arise. However, if this assessment is incorrect and the non-payment can be described as the exercise of a discretion, then the manner in which that discretion was exercised, in circumstances where the financial results were below the threshold was not such that no reasonable employer would have exercised the discretion in that way.
As to the third question I cannot see any basis to find that the Complainant had earned a bonus or any part thereof during the year 2022 given the manner in which the scheme operated. This bonus scheme was different to others where the bonus is earned and quantifiable in accordance with a formula based of percentages of salary applied to a set work period. In this case the bonus was not earned until the end of the year and then only if the results led to the opening of the pool. The Respondent’s statement in its submissions that “Furthermore, the bonus scheme in question no longer exists in light of worsening financial performance and no performance bonuses were received in 2023”- which was not challenged specifically by the Complainant.
The definition of wages appears in Section 1 of the Act and includes “Any sums payable to the employee by the employer in connection with his employment…”. In Sullivan v. Department of Education [1998] E.L.R. 217 the Employment Appeals Tribunal “consider[ed] the word ‘payable’ to be significant. The Tribunal went on the make the following interpretation:
“The definition of ‘wages’ goes on to give examples of types of payments which can amount to ‘wages’ and states that the payments can amount to wages ‘whether payable under [his] contract of employment or otherwise ….’ Although in our view it is not simply a matter of what may have been agreed or arranged or indeed paid from the outset but, in the view of the Tribunal, all sums to which an employee is properly entitled.”
My conclusion is that the Performance Bonus was not earned and is not properly payable for 2022. Accordingly, I find that the Payment of Wages Claim seeking payment of the Performance Bous is not well-founded
As regards the inclusion of a Performance Bonus entitlement in the calculation of the Complainant’s remuneration for the purposes of the Unfair Dismissal claim it follows from the foregoing finding that the bonus claimed, or any bonus, was not in fact a guaranteed contractual entitlement for the year 2022 nor was the same actually earned that year - or paid through the payroll to a comparable employee the next year in 2023 (as per the figures generated pursuant to my directions). In such circumstances I do not deem the performance bonus to form part of the Complainant’s normal total compensation package for the purposes of assessing losses attributable to the dismissal and the figure representing same will be subtracting from the final figures which will be calculated at the end of this decision.
Part D Equity Grants /Deferred Cash Consideration
The Complainant relied on the fact that the shares awarded were converted into cash and their value was paid out to the Complainant through the payroll. It was contended that the clauses whereby the Complainant was to be disentitled to any Equity Grant or Deferred Cash Consideration where his employment ceased would fall foul of Section 13 of the Unfair Dismissals Act 1977.
The Respondent made the following arguments in its written submission with regard to these benefits - The Claimant’s contract of Employment precludes him from compensation for any loss of rights or benefits under any equity or share option plan as a result of his contract of employment terminating; - Restricted Stock Units will not vest in the Claimant once his contract of employment is terminated, regardless of the reason for said termination; - As the Restricted Stock Units have not vested in the Claimant, he has no right to payment in respect of same; - The Respondent has sole discretion in respect of the granting of the Restricted Stock Units. The Respondent reiterates the point as made further above concerning the Bunyan decision; - The Respondent can terminate the Restricted Stock Unit Agreement at any time for any reason; - The Restricted Stock Units cannot be construed as “remuneration” for the purpose of calculating loss; - The Claimant has waived his right to institute proceedings in respect of the Restricted Stock Units; and - Any disputes in respect of the Restricted Stock Unit Agreement and any matters of interpretation in respect of said Agreement fall to be governed by the law of Delaware and are within the jurisdiction of the State of California. Therefore, the Workplace Relations Commission does not have jurisdiction to hear any disputes in respect of same. In addition, in his closing argument, Counsel for the Respondent added the following: In Bunyan v. UDT [1982] I.L.R.M. 404 at page 414 the E.A.T. disallowed claims in respect of benefits enjoyed by the employee prior to termination which it held were of a discretionary nature. The finding is applicable to the present case where the discretion was no longer exercised by the employer. The fact that the method of payment in relation to the Equity Grants changed in 2022 merely reflects the change in the Respondent having reverted from a public to a private company. Only the format of payment changed. All of the rules applicable to the scheme continued to apply. If an award is made to the Complainant that encompasses entitlements under the Equity Grant Scheme that would be a departure from the Bunyan decision in circumstances where discretionary non-vested stock would be awarded by way of remuneration.
Legislative Provisions
Section 7 of the 1977 Act defines financial loss as follows:
“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;
compensation (limited in the present case by Section 7 (1) (c) of the 1977 Act to two years remuneration), defined in Section 7 as follows:
“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay
As to whether the Equity Grants/Deferred Cash Consideration components of the Complainant’s income constitute “benefits” as that term is referred to in the definition of “remuneration” reliance is placed on the decision in Bunyan. The relevant passage from this decision of the Employment Appeals Tribunal is as follows:
“We disallowed, wholly, the claimants claim that he was entitled to have considered as part of his remuneration: · (a) House Mortgage subsidy and · (b) personal Loans subsidy. The claimant enjoyed a rate of interest on borrowings less than that which was generally available, this being the normal practice in the respondent company and, we understand, in banking institutions generally. He undoubtedly received preferred rates and so gained a benefit because he had borrowings. If he had no borrowings he would have had no such benefit. It is a discretionary matter for the respondent as to whether any loan would be made to the claimant. It is therefore the exercise of the discretion in his favour which combines with normal practice to give him the benefit of the reduced interest rate, not the mere fact of his employment. The benefit is not a reward for his services but is a consequence of the exercise of a discretion in his favour.”
The benefit in Bunyan the value of which was disallowed, was a borrowing facility with the Respondent bank whereby, as a member of staff, the employee received preferential rates on loans and a subsidised mortgage. However, the benefit was a facility which required the Complainant to borrow for it be of benefit to him, such that “If he had no borrowings, he would have had no such benefit”. The benefit in the present case was not a borrowing facility but a simple award of stock. It did not require any action of the part of the Complainant and certainly did not involve borrowings. Unlike in Bunyan the benefit did arise from the “the mere fact of his employment”. Insofar as the benefit in Bunyan was disallowed because it was discretionary in nature the fact is that the discretion had not been exercised while the Complainant was in employment insofar as he did receive the benefits of the scheme when he was employed. Moreover, this benefit continued to be paid in a similar manner and in a similar amount to employees who remained in employment after the Complainant was dismissed. In that sense no discretion was exercised to close the scheme or reduce the level of benefits paid.
I conclude that the Equity Grants/Deferred Cash Consideration were benefits within the definition of remuneration.
The purpose of the compensation jurisdiction conferred by the Unfair Dismissal Acta is such that an award should capture a loss which is “attributable to the dismissal”. In this case the loss of the equity grants/deferred cash consideration component of the Complainant’s income was attributable to the dismissal since such a loss clearly would not have been sustained but for the dismissal.
Relevance of Section 13 This section provides as follows:
“13. Voidance of certain provisions in agreements A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.”
The section and the case law regarding it has generally fallen to be considered in relation to disputes arising from or concerning settlement agreements. However, on a plain reading of the wording it does appear to apply to contracts of employment themselves as well and thus it may well be the case that this section essentially invalidates and renders null and void the provision in the Complainant’s employment contract relied upon (as quoted in Respondent’s submissions). I take the view, and I find that even without the application of Section 13, the Respondent cannot rely on the clause for a more basic reason and that is that it would undermine the purpose of the compensation jurisdiction which is to compensate for losses which are attributable to the dismissal. In the present case the Complainant has sustained this loss, and that loss would not have occurred but for the dismissal. It is this situation rather than the operation of the clause in the contract and the terms of the scheme itself as relied upon by the Respondent which has given rise to the loss, and it is this situation which has caused the losses attributable to the dismissal. As the compensation award is based (as it must be) on losses attributable to the dismissal, it is not an order compelling the Respondent to pay the Equity Grants/Deferred Cash consideration by way of an equitable order for specific performance or by way of damages at common law based on a contract footing. For this reason, none of the issues raised by the Respondents based on the rules of the scheme are applicable. This includes the contention that the shares did not or cannot now vest, that the scheme could be discontinued (which did not occur during the currency of the employment), that the benefits cannot be construed as remuneration, that any claims are waived and that the governing law should be that of the U.S.A. For the avoidance of doubt, the compensation award in this case is not based on, dependent on or governed by, those contractual provisions but rather is based on compensating the Complainant for the loss attributable to his dismissal from his employment by the Respondent.
Accordingly, my finding is that the value of the Equity Grants/Deferred cash consideration must be factored into the computation of the Complainant’s loses in calculating the appropriate compensation award pursuant to the Unfair Dismissals Acts.
Section 4. Composition of Final Award for Unfair Dismissal
Calculation of Complainant’s Total Compensation Package
It was submitted on behalf of the Complainant that his compensation package at the time of his dismissal in November 2022 in gross figures comprised the following:
Basic salary €137,000. Health and Dental Insurance valued at € 3,265 Employer pension contribution of 8% valued per annum at € 10,960
The foregoing figures were agreed at the hearing and are Hereafter described as “the Agreed Package” the total of which is €151,225
The following were the subject of dispute (as discussed below)
Performance Bonus comprising a bonus of 30% of basic Salary, which it was alleged was paid in March of each year. The Complainant’s 2021 bonus of €39,901 was paid in March 2022 and the Respondent agreed that this was so.
Impact Award and Equity Grant This was a complex benefit which was made up of several elements as follows:
An impact award bonus of 6720 shares paid over four over years from 1 May 2022. At acquisition price of $54.20 per share. The Complainant calculated this as yielding a sum of US$91,016 per annum.
An allegedly outstanding sum related to a 2022 Equity Grant of 3219 shares paid over four years from 1 May 2022. At acquisition price of US$54.20 per share the Complainant calculated this as yielding a sum of $43,612 per annum.
An allegedly outstanding sum related to a 2021 Equity Grant of 1504 shares paid quarter over four years from 1 May 2021. At acquisition price of US$54.20 per share the Complainant calculated this as yielding a total sum of US$20,379 per annum.
An allegedly outstanding sum related to a 2020 Equity Grant of 2384 shares paid over four years from 1 May 2020. At acquisition price of US$54.20 per share the Complainant calculated this as yielding a total sum of US$32,303 per annum.
By way of summary the Complainant offered the following analysis of the above elements of the Impact Award/Equity Grant:
Stock in the Respondent Company was vested in varying amounts on a year-on-year basis. The most recent Restricted Stock United Agreement provided for 3219 Restricted Stock Unites vested at a rate of either 201 or 202 units per year from 1 May 2022 to 1 February 2026. The value of this stock in the year 2022 was valued on the Complainant’s submission at €177,613. It is my understanding that this figure was reached by combining each of the US$ figures above and converting the total sum using exchange rates applicable during the hearing giving a yearly yield in respect of all of these elements of the compensation package in the total sum of €177,613
Total yearly compensation package Contended for by the Complainant
Agreed package €151,225 Performance Bonus (as paid in 2021) € 39,901 Impact Award and Equity Grant €177,613 Total Contended for By Complainant €368,739
It should be noted that the total figure as per the Complainant’s submissions was higher at €369,937 per annum - a difference of €1,198. However, this discrepancy does not affect the final figure because of the following further adjustment.
By way of a further refinement of the total figure by reference to and including the estimated annual yield from the Impact Award and Equity Grant estimated for 2022, in the sum of €177,613, I will now refer to another set of figures which were generated at my direction by the Respondent (albeit subject to strict reservations as to the Respondent’s liability in relation to those figures as discussed below). The purpose of the directions was to enable me to ascertain the sums which the Impact Award and Equity Grant (if the same are included in the award of compensation) would have yielded to the Complainant in the calendar year December 2022 to December 2023 but for the dismissal. The helpful letter provided by the Respondent’s solicitors dated 17th of April 2024 (the full text of which is quoted above in the “Evidence” section of this decision) describes the payments under this benefit as “Deferred Cash Consideration”. At the hearing, following the provision of this letter by the Respondent’s solicitors, it was indicated that those figures were accepted by the Complainant. This process then facilitates a further and final adjustment as follows:
Agreed package (as before) € 151,225 Performance Bonus (as paid in 2021 as before) € 39,901 Deferred Cash Consideration (as per Letter 17th of April 2024) € 172,335 Total Adjusted Figure Agreed Subject to Liability €363,461
I am therefore taking this total figure of €363,461 as a fair and reasonable estimate of the value of total yearly figure for the Complainant’s overall compensation package taken at the height of the Complainant’s submission and before any findings are made in relation to the composition of the total compensation award arising from this decision.
Taking the figure mentioned above:
Total Adjusted Figure Agreed Subject to Liability €363,461 From this figure will be deducted the performance bonus (which I have disallowed): € 39,901
I will not deduct the sums for deferred cash consideration for the reasons stated above.
Thus, the adjusted total (to reflect the finding in relation to the deduction of the Performance Bonus) leaves a final figure for Overall remuneration in the sum of: €323,560 Dividing this figure by 12 yields a sum per month for full losses of €26,963 per month.
In relation to the new employment obtained and currently held, the overall compensation package in that employment is €129,897. When this is compared to the base agreed package detailed above (total: €151,225), the shortfall is €21,328 per annum which is a comparatively modest amount. The main shortfall arises from the loss of income which would have been provided by the Equity Grants/Deferred Cash Consideration had the Complainant remained in employment. I find from the evidence submitted that the Complainant made appropriate efforts to mitigate. 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.
Losses to Date of Hearing The above finding made I must also take account of the Respondent's contention that the Complainant should have started his present job sooner than he did. The evidence indicates that the Complainant, having undergone a multi-staged selection process eventually procured an offer of employment on the 20th of July 2023 but due to negotiations and queries the contract was not signed until 17th of August 2023. The Complainant did not actually start work until the 18th of September 2023. The reason for the delayed start was so that the Complainant and his spouse could take a family holiday which was pre-booked in February 2023 and the Complainant did not want to start his new job and then immediately go on vacation.
Taking the foregoing factors into account I consider it appropriate and reasonable to run the Complainant’s full or absolute losses up to and to the end of July 2023. This reflects the fact that the delays in the negotiations leading to the signing of the contract should not have taken any longer to conclude than by the end of the month of July 2023. Thereafter although it is understandable that the Complainant needed a holiday and that it was more efficient to commence his new duties rather than start and them immediately take a vacation, the additional losses incurred by these delays should not be borne by the Respondent. Accordingly, given that the Complainant was paid by the Respondent until December 2023 I will allow full losses from and including January 2023 up to the end of July 2023, a period of 7 months which at the rate of €26,963 per month yields a total sum for full losses of €188,741.
The alternative employment yields a monthly income of €10,824 deducting this sum from the monthly income prior to the dismissal (€26,963 per month) yields a sum for monthly income differential as between former and present employment of €16,139 per month. As is clarified by the notional figures for a comparable employee who remained in employment, this differential (which is based on those figures) is accurate for the year following the dismissal up to and including December 2023. As the figures provided by the Respondent do not cover the year 2024 which has yet to end, I am assuming that the losses have continued at a similar rate beyond December 2024 up to and including May of 2024 when the hearing concluded, which is a period of 10 months. On this basis I am prepared to allow a further 10 months (August 2023 to May 2024 inclusive) at the differential rate of €16,139 per month, which yields a further sum to be awarded by way of compensation in respect of differential losses from the date of commencement of alternative employment up to the date of the adjudication hearing of €161,390.
The figures outlined above representing my estimate of total allowable losses from the dismissal to the date of the hearing yield a total sum of €350,131.
Future Losses Section 7 confers a jurisdiction to award compensation in respect of “financial loss” including any estimated prospective loss of income attributable to the dismissal.
It was argued for the Complainant that the Complainant would never be able to achieve such a high rate of income from any alternative employment and this fact was used as the basis for an award to the maximum jurisdiction of two year’s remuneration which in this case would be a sum of €323,560 x 2, totalling €647,120. Such an award would assume that the losses sustained by the Complainant will continue effectively up to and beyond the maximum jurisdiction.
I do accept that there is a probability of a future loss which should be compensated in accordance with the provisions of the Acts, but it seems to me that for that loss ultimately to exceed the maximum jurisdiction is at this stage a possibility but not a certainty. The difficulty with making an estimate of future loss is that it necessarily involves an attempt to predict the future when a number of factors which are as yet unknown and unascertainable would affect the outcome. These factors might include one or other or a combination of the following:
1. The prospects of the Complainant increasing his income either in his present position by advancement/promotion or in the alterative of securing another position attracting higher remuneration than he currently enjoys.
2. The fact that the Deferred Cash Consideration which I have found is a component of the loss attributable to the dismissal, was never proposed to be unlimited or indefinite in its duration. As they stand one of the grants was stated to be of four years duration from May 2021 and another ran for four years starting in May 2020. The other two grants were to run from 2022 for 4 years. There must also be the possibility that those benefits would be withdrawn or severely curtailed in the future
3. The risk of global, regional or sectoral downturns such as would affect the security of the Complainant’s present employment or the level of his remuneration and which would increase his potential loss if his current employment were to become adversely affected or lost altogether.
4. The Complainant’s potential future losses would be reduced if his employment, had it continued with the Respondent, were to become redundant or if his remuneration were to be reduced. In this regard I note that the Respondent has shed 50% of its workforce.
It should be noted that the parties did not provide me with any submissions on these issues nor was expert evidence called which could assist in converting possibilities into percentage probabilities. In such circumstances I must do the best that I can to devise an estimate which is realistic fair and reasonable and, to use the words of Section 7 (1) (c), is “just and equitable having regard to all the circumstances”.
As it is not a certainty that future losses will exceed the maximum jurisdiction, I will not award full jurisdiction, but I will instead try to make a fair and reasonable estimate as to prospective future losses and this estimate is in the sum of €200,000
The total award is therefore made up as follows: Full Losses from January to July 2023 €188,741 Partial Losses August 2023 to date of hearing in May 2024 (inclusive) €161,390 Estimate of prospective future loss future loss €200,000
Total Award €550,131
The Respondent will be directed to pay the said sum of €550,131 after lawful statutory deductions (but subject to all lawful allowances) to the Complainant by way of compensation for Unfair Dismissal.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00054915-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977: The Complainant was unfairly dismissed. The Respondent is directed to pay the sum of €550,131 to the Complainant by way of compensation for Unfair Dismissal pursuant to the Unfair Dismissals Acts 1977-2015 CA-00055009-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991: The claim pursuant to the Payment of Wages Act 1991 (as Amended) is not well-founded |
Dated: 12/08/2024
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Key Words:
Definition of Resignation - Definition of Dismissal – Whether failure to respond to communication constituted resignation - Unfair Dismissals Acts 1977-201 Section 6 (1) and (6), Section 7 (1) (c) and (2) – Section 8 (13) - Section 13 - Workplace Relations Act 2015 - Section 41 (10) - Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 SI 287/1997 - Documentary Evidence Act 1925 – Section 4 - Interpretation Act 2005 - Section 13 - Director of Public Prosecutions v Collins [1981] I.L.R.M The State (Taylor) v Circuit Judge of Wicklow and Others [1951] IR 311- Sothern v Franks Charlesly & Co [1981] IRLR 278 - Cafferkey v Metrotech Services Ltd UD 1036/1988 - Redmond on “Dismissal Law” (2017) at para. [22.22] - ‘contributory conduct’ – Culpable or blameworthy - A Sales Executive v A Software Company ADJ-27573 – Payment of Wages Act 1991 – Section (1) – “properly payable” - Devlin v. Electricity Supply Board PW550/2011 - Lichters v DEPFA Bank Plc [2012] 23 E.L.R. 258 - Cleary v. B & Q Ireland Limited [2016] 27 E.L.R. 121 - Sullivan v. Department of Education [1998] E.L.R. 217 - Bunyan v. UDT [1982] I.L.R.M. 404 – future loss – loss attributable to the dismissal
[See also cases cited in written submissions]
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