UDD2612

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044246 (CA-00054915-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 9 September 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 17 September 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court case management conference took place on 7 March 2025. Labour Court hearings took place on 29 and 30 July 2025 and 28 January 2026. The following is the Decision of the Court.

DECISION:

1Background to the Appeal

This is an appeal by both parties against Adjudication Officer’s Decision ADJ-00044246 CA-00054915-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Acts).  The Adjudication Officer held that his complaint was well founded and awarded compensation of €550,131. In this decision the parties will be referred to in the manner they were referred to at first instance. Mr Rooney as the Complainant and Twitter International Unlimited as the Respondent. In the course of the hearing the Court was advised that the company name had changed to X Internet Unlimited, and it was agreed that the decision would issue under that name.

The complaint was lodged with the WRC on 07 February 2023, appealed to the Labour Court on 9 September 2024. A case management conference was held on 7 March 2025, and hearings took place on 29 and 30 July 2025 and 27 January 2026.

 The Complainant worked with the Respondent from 23 September 2013 until his employment ended on or about 18 December 2022.  The Complainant submits he was dismissed. The Respondent disputes that a dismissal occurred. There is a linked case PW/24/142.

2 Summary of Complainants submission

Mr P Lyons SC submitted on behalf of the Complainant that he was at all times an exemplary employee of the Respondent with long and distinguished service in excess of nine years. In October 2022 after the acquisition of the company by Mr Elon Musk there was a very sudden change in the established norms in the company. This manifested itself in the dismantling of employee entitlements and in particular in the ‘fork in the road’ email which required signing up to within 46 hours.  Despite the tight timescale set for signing up, the terms that were being signed up to were completely unclear. The extra ordinary nature of this email can be seen from the fact that the Respondent had to clarify in FAQs that this was a genuine demand and not a fishing exercise.

The Complainant was dismissed for declining to click yes in the relevant box and without further notice access to all his working systems was terminated. It is the Complainant’s submission that this is a paradigm case of unfair dismissal. If the Court for some reason is not satisfied in relation to that proposition, in the alternative the Complainant will argue it was constructive dismissal. Mr Lyons SC stated that the Complainant would give evidence that he immediately set about looking for alternative employment. He found a suitable alternative some nine months later on 18 September 2023.  In the intervening nine-month period he was without any income.  Although he has secured alternative work there remains a gap in income between his current income and his income with the Respondent. Mr Lyons SC submitted that his loss currently stood at in excess of €630,000 and his ongoing monthly loss is approximately €17,000. The Complainant is seeking the maximum level of two years compensation. Mr Lyons SC opened to the Court the Complainants P60 for the period 01 January 2022 to 18 December 2022 which shows his pay for the full year less 12 days as €334,114.84. It is the Complainant’s submission that when other benefits are taken into account such as impact award, bonus, and employer pension contribution an additional €10,000 should be added to that figure giving a total income figure of €344,703 in 2022.  That figure is computed as follows;

Base salary €137,000, employer pension contribution €10,960, health and dental €3,265. That gives a subtotal in terms of basic income of €151,225. It was his submission that this figure was accepted at first instance by the Respondent. In addition to that he received at the end of March 2022 a performance bonus of 30% of his then income amounting to €39,901 which is reflected in the P60 figure. In February, May, August and November pay there were total payments having a cash equivalent value of €153,577 which also aligns with the P60 figure.

The Complainant’s loss of earnings for the period 18 December 2022 to 18 September 2023 was €252,185. He also has an ongoing loss of €17,195.78 x 22 months giving a total loss of €630,492 plus a current ongoing loss following a recent pay increase of €16,753 per month.

Mr Lyons SC stated that this is a case which unambiguously warrants a determination of unfair dismissal and unambiguously warrants a determination that the Complainant is entitled to compensation of two years remuneration.

3 Witnesses for the Complainant

The Complainant’s evidence in chief

The Complainant in his evidence to the Court confirmed that he had commenced employment on 23 September 2013 as a Sourcing and Procurement Manager for the Europe, Middle East, and Africa (EMEA) region. Over time his role expanded past the regional role into a more global role with responsibility for accounts payable globally and for the management of travel and expenses globally. He stated he also had other global responsibilities around strategic sourcing elements, and he assumed the role of Director of Source to Pay. Mr Lyons SC took the Complainant through his employment contract. In respect of paragraph 11.1 the Complainant confirmed that he had never given the Respondent one month’s notice in writing of intention to resign as required by that paragraph of his contract. He was then brought to a further provision in his contract which stated that if he had a claim for unfair dismissal he would not “become entitled to any compensation for the loss of any rights or benefits or anticipated rights or benefits under any scheme or plan( including any equity or Share option plan ) operated by Twitter or by any associated company in which you participate.” The Complainant confirmed that he had not sought independent legal advice before signing his contract.

The Complainant stated that in the six months prior to his dismissal he was Director of Source to Pay which is a group within the Finance team. He had a team in Dublin of nine staff, he also had indirect reports in other jurisdictions. He confirmed that he was one of three directors within Source to Pay and that there were not a lot of people at his level in the company. Because the Respondent was a global company, they worked across multiple time zones, and he had to be available to liaise with people in other time zones. In response to a question from Counsel as to how performance was measured the Complainant stated that at the start of each year employees were asked to put together a set of objective or goals and that was what you were measured against. There was usually a mid-year check around July/ August to see if you were on track or if correction was needed. At the end of the year there was a determination as to how the employee did in terms of their goals and objectives for the year.

The Complainant stated that he always met or exceeded his objectives and consistently received high ratings. These then informed the decision about compensation for the future period after the scoring was completed. The Complainant confirmed that he had a performance bonus of 30% which was paid in full in 2022 and was €39,901 and that he received correspondence indicating the Respondent’s “gratefulness for your talent, expertise and contributions”, and recording his base salary as fixed at €137,000 up about 5% on the previous year.

He confirmed that the correspondence indicated that his performance payout was based on Twitter’s performance and his individual performance in 2021. He confirmed that he received an impact award of $240,000 in recognition of his hard work and outsized impact at Twitter. The letter he received stated “The fixed conversion price used to calculate the number of Restricted Stock Units (RSUs) will be based on the average closing stock price of Twitter stock in the month of February 2022” which at the time was $35.73. It went on to say that the shares would vest over the next 16 quarters starting 1 May 2022 and that each RSU would vest provided he was continuously employed with the Twitter group on the designated vesting date. The Complainant confirmed that the value in May and August 2022 was based on the share value on the day but after the acquisition the share price was fixed at $54.20, and it was his understanding that in order to get that money all he had to do was remain in the Respondent’s employment.

The Complainant stated that following the change in ownership the prevailing mood within the organisation was one of uncertainty and fear about what was to come. Very quickly after the acquisition, in the region of 50% of employees were made redundant. There was no engagement and the decisions were made in San Francisco. Five of his team were let go during that process leaving him with a team of four. It was his understanding that about 50% of Twitter employees and about 50% of the staff of outsourced partners based in Bangalore were let go and that the redundancies were across the board.  The Complainant confirmed that he was not dismissed as part of that process. In terms of the role he was carrying out there were impacts as they were informed that they were to hold all payments and not make payments to suppliers or pay staff expenses.  This put him and his staff in a difficult position when suppliers were looking for payment, and he did not know when the payments would be released.

Mr Lyons SC directed the Complainant to an email titled “fork in the road e-mail”. The Complainant confirmed that email was sent at midnight on 15 November 2022, and he first saw it the following morning about 8.00am. The email stated “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 grade.”

It was the Complainant’s evidence that he did not know what that meant. He already worked long hours and was not sure if this meant he would have to work even more hours.  The email went on to say “Twitter will also be much more engineering driven. Design and product manufacturing will still be very important to me, but those writing great code will constitute the majority of our team and have the greatest sway. At its heart, Twitter is a software and servers company, so I think this makes sense. If you are sure you want to be part of the new Twitter please click yes on the link below. Anyone who has not done so by 5pm ET tomorrow (Thursday) will receive three months’ severance.”

The Complainant confirmed that the email had been sent at midnight on the 16 November 2022 and the cut off time was 10pm the following day just 46 hours later. He stated that he did not consider this an opportunity of severance, it seemed to him to be making things worse. An FAQ was circulated at 2.19 am on the 17 November 2022 the opening statement in the FAQs was “Elon’s e-mail is an official company communication; this is not a fishing attempt.” He believed this statement had to be made as it did not seem like an official communication and employees were concerned that if they clicked on the link, it could cause harm to the company.

The Complainant confirmed that the FAQ stated that you were being asked to confirm that you wanted to be part of the new journey and went on to say that if you did not click yes, you would be confirming your decision to resign. While it indicated that you would receive documents relating to severance, the documents were not available at that point in time. He confirmed that he did not know what he was being asked to sign up to. He spoke to his teammates and his manager, but they did not have any more information than he had. The senior leadership within Finance which was where he was located had been sacked a few weeks earlier.  In respect of the exit package, the FAQs stated that the company would comply with legal requirements.  They stated that the severance package of two months non- working time on payroll, one-month base salary, and the cash amounts payable in respect of unvested Twitter equity would be subject to a separate separation agreement. A copy of that separation agreement was not available at that time.   A bullet point in the FAQ stated “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?” the answer was “If you don’t click yes, we will liaise with you in relation to the next steps in accordance with our legal obligations.

The FAQs confirmed that the Performance Bonus Payment would not be included in severance and additional time to consider the offer was not available. In total from the time of the FAQs to the time to sign up there was only 12 hours. The document also clarified that going forward you would be required to work from an office whereas he had a hybrid arrangement of one or two days in the office depending on his schedule.  In respect of hours of work, it stated that you were to work the hours required to do your job at the highest level which would include out of hours and weekend work. It also signalled changes to existing benefits but there were no details of what the changes might be. It confirmed that no details could be shared about the plans for stock options compensation in Twitter 2.0.  On the day of the deadline at about 5.00pm Irish time, there was a webinar where executives from some of Mr Musk’s other companies were talking about what it was like to work for him, that he expects people to put in long hours and that people are expected to be enthusiastic about working for him.

The Complainant confirmed that he did not tick the box. He then received an email on 19 November noting that he had resigned and had accepted the voluntary separation offer outlined to him. It was his evidence that he had not resigned, nor had he accepted the severance package.  His access to systems and platforms were terminated sometime in the middle of the night on 17 November 2022. On 26 November 2022 he sent an email advising that he had not resigned, nor had he seen any separation agreement. He stated that he did not consider the email of 16 November 2022 or the FAQs to be a clear outline of a separation agreement and the timeframe available after nine years’ service was not acceptable. He confirmed other than an automated email he received no response to his email despite the fact the automated email stated they would get back to him as soon as possible within the next 3 business days.

The Complainant confirmed he sent a follow up email on 5 December 2022. On the 7 December he got a generic response not addressing the issues he had raised.  It stated that as he had not clicked yes that was taken as him serving notice of resignation and that he was currently under notice of termination with effect from Friday 18 November 2022. It advised that he would soon receive a settlement agreement a condition of which was that he should take legal advice on it, and that the deadline for execution of the agreement was 21 December 2022.  The settlement agreement contained a number of waiver of rights; he did not sign it. By letter of 13 December 2022 his solicitor wrote confirming that he did not wish to terminate his employment and was not agreeable to executing the severance agreement. No response was received. His solicitor sent a further letter on 19 January 2023 outlining that he was not receiving his salary, and he had substantial payments due to him in the coming months. No response was received to that letter either.

Mr Lyons SC then opened some Slack messages that the Complainant had sent. The Complainant stated that if his access had not been revoked on 17/18 November 2022 he would have turned up for work as usual the next day. He had no intention of not turning up for work. The Slack messages were recognition of the uncertainty at that time about what could happen. In previous weeks people had been locked out of their systems abruptly through the redundancy situation. He stated if he was not at work the next day, he wanted people to know why.  The Complainant stated that he did not believe it was reasonable to give two days with information gaps and expect people to make a significant decision about their career.

The Complainant stated that in terms of mitigating his losses about a week or two after the email of 16 November 2022 he met with a recruitment agent. He also applied for a number of positions which he set out in a spread sheet that was provided to the Court. He indicated that he had applied for between 80 and 90 jobs. The Complainant confirmed that he had applied for jobs at different levels that were appropriate to his skill set with various organisations and he tried to tailor his C.V. to the jobs he was applying for.  He also confirmed that he spoke to about eight or nine different recruitment companies. The general feedback was that the job market was difficult and that there were not many positions at senior level available. He was also informed that compensation packages may be similar in terms of salary and pension but would not have a similar share grant scheme. The Complainant confirmed that his current role is Head of Sourcing and Procurement. He applied for that job on 8 June 2023 and received a job offer on 20 July 2023.  He took up his position on 18 September 2023. He confirmed that the total value of his compensation package at that stage was €130,000 and it is now increased to €135,000. The Complainant stated that he spent a number of hours everyday job hunting. The Complainant confirmed that he was off pay from 18 December 2022 to 18 September 2023. The Complainant then outlined how he had calculated his loss of earnings giving a total loss of €630,492 and confirmed that he has an ongoing loss.

Cross examination by Ms Smith SC

The Complainant confirmed he had a good working experience in Twitter, positive relationships with his colleagues and the same line manager the whole time he was there. He went on to acknowledge that he had the opportunity to participate in an Equity Incentive Plan and in a Global Discretionary bonus plan. He confirmed that there were a number of perks including free canteen food, commuting allowance, wellness budget and trips for staff members. In response to a question from Counsel the Complainant confirmed that he worked for Twitter International which is the Irish subsidiary of the US company and is now called X.  It was put to the Complainant that there was no form signed by him for a bonus in 2022 but there was for every other year. He confirmed that he could not recall if he had signed a form for 2022.

Counsel opened the Twitter Inc 2013 Equity Incentive Plan and asked if Twitter Inc was the parent company of the Irish subsidiary and other subsidiaries around the world. The Complainant stated that he believed it was and confirmed that he had never worked for Twitter Inc.

Counsel took the witness through various elements of the Equity plan and the fact that there were different stock options but the only ones that applied to him were Restricted Stock Units (RSUs). The Complainant accepted that it was the administrator of the plan which is the Board or Committee of Twitter Inc. who actually determines what is going to be granted and not the Irish company. He accepted that the plan states “After the Administrator determines that it will grant Restricted Stock units under the Plan, it will advise the Participant in an Award Agreement of the terms, conditions and restrictions related to the grant, including the number of RSUs”. The plan also set out the vesting criteria and the form and timing of payment and tax obligations. Counsel put it to the witness that awards can give rise to different tax obligations in different jurisdictions, he confirmed that was correct and that the plan provides for mechanisms where there can be withholding of parts of an award to meet those obligations.

Paragraph 16 of the plan states “No Effect on Employment or Service. Neither the Plan nor any Award will confer upon a participant any right in respect to continuing the Participant’s relationship as a Service Provider with the Company, nor will interfere in any way with the Participant’s or the Company right and so on to terminate such relationship at any time with or without cause “

Counsel put it to the witness that the plan did not convey any rights in terms of continuing employment, and the witness accepted that was correct. The Complainant confirmed that in order to avail of a grant of RSUs you have to sign for each grant and accepted that the plan provided that if you ceased to be a service provider for any or no reason before the RSUs vest the right to acquire shares will terminate immediately. The witness stated that you either signed or didn’t sign there was no opportunity to amend the agreement and that when you signed you were signing up to the terms and conditions of the plan. He confirmed that there was a clause in the plan that required participants to confirm they had reviewed the plan and agreed to accept as binding, conclusive and final, all decisions or interpretations of the Administrator and any questions relating to the Plan and Award Agreement.

Ms Smith SC put it to the Complainant that in his calculation of loss he had included his RSUs even though the plans he signed up to clearly state that they are not part of normal or expected compensation. It was also put to him that in consideration of been given RSUs he agreed never to bring claims against the company or its subsidiary. The Complainant stated he did not accept the proposition that he expected Twitter to comply with its obligations, but he was not prepared to comply with what he had signed up to. The Complainant accepted that correspondence was circulated in 2022 about challenges to revenue that the company was experiencing and steps they were taking to try and address same. He confirmed he was not party to the redundancies on 4 November 2022.  He confirmed that his was not a role that was identified to go at that stage. In relation to his evidence that suppliers were not being paid.  It was put to him that an audit was carried out and then suppliers were paid.  The witness stated at the time his employment ended they had not been paid. 

The Complainant confirmed that he did send a tweet on 13 November 2022 expressing his displeasure about what was happening. In respect of the ‘fork in the road’ email Counsel put it to the Complainant that it could be seen as an opportunity for people who did not want to stay in the company to leave with severance. Ms Smith SC took the Complainant through the ‘fork in the road’ email and suggested that it was upfront about what the future in the company would be like, long hours at high intensity.  He has already stated in his evidence in chief that he was working long hours. The next part was only exceptional performance will constitute a passing grade, he had received an impact award, so he had already been assessed as having exceptional performance. It was put to him that the email was quite clear about what was expected and it was clear that if you wanted to stay with the company you had to click yes. If you did not want to stay you could resign and get severance which is not the norm, as usually if you resign you wouldn’t get severance. It was put to him that the FAQs had nearly two pages of information about the exit package, and it again confirmed if you did not click yes, you would be resigning. The Complainant in his response stated that as well as what Counsel had set out there were multiple occasions in the FAQs where it stated that for the international team more information would become available but that information was never provided and he does not accept at the time he had to make a decision that he had full information  as to what pressing yes would mean. Ms Smith SC took the Complainant through his contract suggesting that what was being asked for in the ‘fork in the road’ email was not that much different to the requirements in his contract, and it was always within the gift of the Employer to ask employees to return to work in the office. The Complainant accepted that his contract made no reference to equity or performance bonus.

In respect to the 17 November 2022, it was put to the Complainant that it was clear from the Slack messages he had sent on that day that he had made a decision. He states a few hours before the deadline that he had made the decision not to press yes, he was saying goodbye, and he states that it’s best he steps away. This clearly shows he had made a decision to step away at that point. The Complainant stated that his messages had to be viewed in context of not knowing what he was being asked to sign up to and he knew if he didn’t sign up, he would lose his access to the various platforms. The Complainant disputed that he was saying goodbye because he was leaving, He was saying goodbye because he knew if he did not press yes, his access would be cut off.   He confirmed that at 16.14 he sent a message saying he had not changed his mind, but he was hoping they would have more clarity after the webinar. He confirmed that about 5.00pm he informed his line manager that he had decided not to click the button. Counsel went through other messages of a similar nature that he had shared with various colleagues including the following “I know, but I can’t stay under this new regime, it would break me,” and a message stating “I ve made the call not to stay at Twitter.”

In response to a question from Ms Smith SC, the Complainant stated he did not contact HR as he did not know who he could go to. It was put to the Complainant that there were 20 people left in HR Dublin at the time. He confirmed that he did not attend the office the following day 18 November 2022 when he couldn’t access the systems from home. It was his evidence that he thought the offices were closed.  He confirmed that he received an email on Saturday 19 November 2022 acknowledging his decision to resign.  It went on to say if this was not your intent please contact and gave an email address to contact and the subject heading ‘fork in the road’. It was put to him that he did not respond to the email until a week later on Saturday 26 November 2022 and he did not put ‘fork in the road’ in the heading.  In the email of 26 November 2022, he confirmed that he had not indicated he was resigning and had not seen or signed any separation agreement.  Counsel noted that in the email he did not state that he was going back to work. The first time he states that is in his email of 5 December 2022.  On 7 December 2022 he got the terms of the separation agreement and on 13 December 2022 your solicitor sent in a letter saying you were committed to working with Twitter and ready to embrace new challenges.

Ms Smith SC took the Complainant through the Global Discretionary Performance Bonus scheme noting that though he had signed forms in previous years, no form was signed for 2022.  She put it to the Complainant that there were two elements to the plan and in 2022 the second part funding was missing and no Performance Bonus Pool was available to distribute.

In response to a question the Complainant confirmed that he had equity grants that were vesting into the future, that he knew he had to stay in service to get the benefit of those, and that they would lapse if his employment terminated. It was put to him that it was open to him to avoid all of his losses if he had clicked yes. Ms Smith SC then took him through his mitigation and his various job applications.

Re- examination by Mr Lyons SC

The Complainant confirmed that he never took legal advice in respect of the RSUs or the documentation that came with them.  The Complainant stated it was his understanding arising from a letter of 17 April 2024 that if he had remained in employment his share allocation would have been paid to him or the cash equivalent would have been paid on a quarterly basis. His shares would have run out in 2026. In respect of the grievance procedure the Complainant stated he had raised his concerns with his line manager which is the first step in the grievance procedure.  He also confirmed that at the time of the ‘fork in the road’ email he did not receive any communication telling him who in HR to contact if he had a problem. The Complainant also confirmed that he had no electronic means of getting access to the companies’ policies after the deadline expired and no electronic means of getting into the office.                                                    

4 Summary of Respondents submission

Ms Smith SC submitted that what occurred was not a dismissal, there was no threat of dismissal from the Respondent or no proposal from the Respondent to terminate the Complainant’s employment. It is not disputed that the Complainant had a long and successful and valued career with the Respondent. He had received an impact award in 2022, an award that is reserved for only high performing employees.

The company underwent a very significant reduction in its global workforce shortly before the events of 16 November 2022 which included a programme of compulsory redundancies. The Complainant’s role was not identified as a role that was redundant and there was no suggestion at any point that the Respondent wished to terminate his employment.

The context in which the events of 16 November 2022 occurred is important. The Respondent was in financial difficulty. Early in 2022, cost saving measures were being implemented. In August 2022, all members of staff were advised by the Chief Financial Officer that the company was tracking at 50% of its targeted performance for the purposes of bonus that year.  In fact, the outcome was much worse than the 50% predicted and as the Respondent did not meet its targets in 2022 no bonus pool was achieved.  This is evidence of the Respondent being in difficulty.

 Ms Smith SC submitted that in October 2022 an acquisition proceeded, and a company called X Holdings which is predominantly owned by Mr Musk acquired all the shares in Twitter Incorporated. This was a publicly listed company with its shares on the stock exchange in the US. On 4 November 2022 it was announced that the workforce globally would reduce by 50 %.  At its height the global workforce was close to 8,000 excluding contractors and now it is just north of a thousand.

It was a drastic change for everybody involved and the employees were very vocal, publicly, privately, within the company and with each other about their unhappiness in respect of the new owner. A significant number expressed the view that they wished they had been selected for redundancy and during that time period some people did resign.  It was in that context that Mr Musk sent the email of 16 November 2022.

Ms Smith SC stated that the email of 16 November 2022 was an offer to employees of severance if they did not wish to remain in employment with Twitter. The offer was three months’ severance pay. The email was not about reducing the workforce as this had already happened. The method to accept or reject the severance offer was made clear. The employee could indicate they wished to remain working in Twitter by clicking yes and if they did not click yes, it would be deemed a resignation.  It was clear that it was the Worker’s decision and there was no threat of reprisal.  In this instance they had the opportunity to resign without giving notice and receive three months’ salary.  The Complainant in this case would have received the email at 8.00am Irish time on 16 November 2022 and at 2.00am on 17 November 2022 an FAQ document was made available. The deadline was 10.00 pm Irish time on 17 November 2022. Ms Smith SC opened the FAQ document to the Court and submitted that it provided a lot of clarity for employees. It set out what their actions or inactions would mean and how that was understood by the company. Ms Smith SC submitted that the Complainant understood precisely what the email meant. This was clear from his own communications with his colleagues. At the time there was approx. 270 employees working in Dublin and 35 people opted not to click yes. Everyone else clicked yes so, a relatively small number opted not to click yes, and this was in line with that happened globally.  The Complainant is the only person who has asserted that this was an unfair dismissal and that he was confused about what it meant. The first thing the Court has to decide is whether or not there was a dismissal.  The Employer did not carry out any act that could constitute a termination. The fact that the Complainant could not access his email the next day does not make it a dismissal. The Respondent had a contractual right to pay in lieu of notice but it did not do so. The Complainant remained in employment with benefits for the duration of his notice period. It is accepted that his last working day was 17 November 2022. In the event the Court finds that there was a dismissal they will have to consider remedy.

The Court will have to consider what the regulations say is weekly remuneration. The Global Discretionary Performance Bonus paid in March 2022 should not be included as remuneration under the 2022 salary as it is a discretionary payment in respect of the previous year 2021. No bonus was paid to any of the Respondent’s staff in respect of 2022. The Complainant in his calculation of loss has also included shares which is problematic for a number of reasons. The Complainant did not have share options with the Respondent, he benefited from an Equity Incentive Plan operated by Twitter Inc., the US company but it was not part of his remuneration. It was not paid by the Respondent and was entirely discretionary. 

The Complainant entered into arrangements with a U.S. Corporation. There are also jurisdictional issues because the agreement he entered into and from which he benefitted states that any issues in respect of the RSUs are to be determined by the Court in San Francisco, in California, pursuant to the law of Delaware.  Ms Smith submitted that the agreement he entered into is that the Court in California needs to determine if the benefits should be included and therefore the Labour Court does not have jurisdiction to look into that. The Court will also have to consider mitigation particularly in circumstances where the Complainant chose to walk away.

5 Respondent’s witnesses

 Ms Lauren Wegman

Ms Wegman informed the Court that she is a Senior Director within HR at X Corp. Her areas of responsibility include people analytics, people programmes, HR business partners, people operations teams and learning and development. Her responsibilities are both within the United States and globally. She is based in the Unites States. Ms Wegman set out her qualifications for the Court and confirmed that she had been within the HR function for 15/20 years with multiple tech companies. She confirmed she joined Twitter in 2018 as Head of People Analytics within the HR team. In late 2021 or early 2022 she was promoted to Senior Director of HR and reported directly to the Head of HR who reported to the CEO. Ms Wegman stated that at its peak they had 8,750 employees globally and that was early 2022. The current global figure is about 1,300. In 2022 prior to the acquisition, they were in 25 countries. Dublin was one of their larger offices within the area they referred to as EMEA.

In terms of staff benefits she confirmed there were company global events where everybody from the 35 locations would gather in the one place for a few days. They also provided allowances like wellness allowance, career development allowance, computer allowance.

Ms Wegman stated that the purpose of the Equity Incentive Plan was to attract and retain talent, so it was forward focussed. If you were given a grant there was a time period that you had to remain an employee to get the benefit. The employees above a certain level in the workforce in Twitter Inc or a subsidiary company like Twitter International which was the Irish entity were eligible for the scheme. She confirmed that the Complainant was employed by the Irish entity and although the equity policy was US based, employees within the Twitter groups internationally could participate.  The Complainant never worked for Twitter Inc. In order to participate in the programme once a grant was bestowed you had to actually accept the grant and accept participation within the programme every single time a grant was bestowed. The grant was bestowed within a tool called Schwab where you had to sign to get the award. If you did not sign you would not get the award. This was not a one-time thing; you had to do it every time you got an award. The witness confirmed that the plan was also within the Schwab and you had to sign the acknowledgement of the plan document. She confirmed that if you did not sign the acknowledgment of the plan, you would not get the award.

Counsel put it to the witness that the Complainant’s position was that the equity benefits formed part of his remuneration for doing his job. The witness did not accept that it was part of his remuneration, amongst other things it was discretionary in nature.  She stated that it was separate from his work and was about incentivising for the future. The witness confirmed if the employee opts for withholding tax it is done via payroll and reflected on his payslip. She confirmed that the opt-in occurred within the Schwab system and the company would sell some of your shares to cover the tax liability and this would be reflected on your payslip.  The witness confirmed that she understood that the RSUs were a benefit separate from the employment relationship. The witness stated that an impact award was an additional equity grant outside of the equity grant from the annual refresh. It was to award outstanding performance and to motivate retention. Impact awards were only made to a subset of employees.

The witness confirmed that she was familiar with the Global Discretionary Performance Bonus that was operated by Twitter Inc. and stated that there was a different plan every year. The bonus plan was ratified by the Board of Directors, and they align the target metrics for the company that would fund the pool.  She confirmed that if there was no budget for the pool there would not be a bonus programme. She confirmed the bonus pool was not funded for 2022 and was not sure if that had happened previously. The witness stated that the bonus scheme is a voluntary programme and employees sign up for the bonus each year ahead of the award.

Because of the financial situation in 2022 the company planned a reduction in size which was due to kick off in April 2022. The plan was to reduce the company by about 14 per cent. They implemented strict rules about reducing contractor head count and backfills were not guaranteed. They were trying to reduce costs and their footprint. The witness stated that the deal was signed with Mr Musk in April 2022 and the acquisition was completed 27 October 2022.  As part of the November 4, 2022, reduction in the workforce approximately 3,500 people who were selected for redundancy and were in the consultation stage of the process, were moved out of the active hierarchy so they could see who they had left and where there were gaps. In terms of individuals expenses there were some delays at that time, but the claims were ultimately paid. When the acquisition happened, there was a mass audit of all vendors and suppliers and during that period invoices were not paid. When the audit was completed all bills that were in order were paid but there were some bills for goods and services that had not been received, and those bills were not paid. The witness stated that it was her understanding that the Complainant was a high performer, had been with the company for some time and had a great deal of historical knowledge so they would not want to lose him. 

Around that time there were a lot of negative messages on Slack and Twitter including messages that could be interpreted as threats to the platform and to user data. People were also posting that they wished they had been selected for redundancy. The ‘fork in the road’ email was sent as an opportunity to give remaining employees a choice to stay or to leave the company with an offer of severance. It was not about further job reduction as it was open to everyone, and it provided better terms than just resigning. The witness confirmed that when she received the ‘fork in the road’ email, she understood that she had a choice to make which was did she want to stay with the company or did she want to leave with a severance package.  If she wanted to stay, she had to click yes if she did not want to stay, she did not have to do anything. The witness confirmed that she clicked yes. In respect of the statements in the ‘fork in the road’ email about needing to be extremely hardcore and working long hours at high intensity, she understood that to mean the company was going through a difficult financial time in a competitive environment and in order to survive they would all need to come together and work extremely hard. The witness confirmed that having clicked yes there were some long hours especially in the early days after the acquisition, but it didn’t last indefinitely. There was an expectation of exceptional performance but as a high performer she was not concerned. It was put to the witness that the Complainant viewed the email as an ultimatum.  Her evidence was that she did not view it as an ultimatum.  In terms of the FAQs, she did not draft them, but she did receive them and they talk about if you wanted to resign. The ‘fork in the road’ email had not mentioned resigning. If people did not tick yes, they were coded in the system as a resignation rather than an involuntary termination.  The witness confirmed that the FAQs didn’t have the details of the separation agreement, but it did set out what separation package would be and that all local legal requirements would be abided by.

Ms Wegan stated that the FAQs set out that shares would continue to vest while they remained on the payroll. This would not normally happen where somebody resigned. She confirmed that the terms were more beneficial than a normal resignation.  The FAQs also confirmed any rights in respect of equity would terminate with termination of employment. It was her evidence that globally about 1,500 did not click yes and in Ireland it was 30 or 35 people.

Cross examination by Mr Lyons SC

Ms Wegan confirmed in response to questions from Counsel that she had no reason to believe the Complainant was anything but a good employee and was never the subject of disciplinary or caused any difficulty in his nine years’ service. The Witness confirmed that she was Senior Director of People Experience in HR Global, communications including the communication around the ‘fork in the road’ email were part of a different HR team. Ms Wegan confirmed that she had never spoken to the Complainant’s line manager about any communications he might have had with the Complainant.  Counsel opened the compensation letter the Complaint received February/ March 2022 from Courtney McMilllan, Head of Total Rewards.  The witness confirmed that the statement in the letter “Your equity award is determined based on your position, level and performance and is subject to the equity plan terms and conditions” that related to his role with Twitter International and his performance as there was a range within which the awards fell. She confirmed that the equity range was linked to position and level and accepted that the individual performance was a factor that managers considered.  She accepted that in reference to the Impact Award the Complainant received a letter stating it was in recognition of his hard work and outsized impact as a Twitter employee. She confirmed that equity awards were not made to non-employees. In respect of the RSUs the witness stated that she did not accept it was employee pay, reflecting it in the payslip was an operational necessity to cover the withholding tax.  Counsel put it to the witness that considering her acceptance that the RSUs are reflected in the pay slip and the P60s, the paragraph in the plan stating it’s a separate benefit from his employment is inconsistent with employment reality. The witness did not accept that.

In respect of the bonus, it was the witness’s evidence that the bonus programme is discretionary, and no bonus was paid in 2022. Following the acquisition the bonus programme was not continued. It was put to the witness that the Complainant had given evidence that he was instructed not to pay vendors and not to pay staff travel expenses and she was asked if that was an acceptable practise. The witness stated that it was her understanding that following an audit they were paid so the issue was a delay in the payment rather than non-payment.

In respect of the ‘fork in the road’ email the witness accepted that it was an unusual email and that some staff were wondering if it was real and this was clarified in the FAQs document. The witness accepted that the email stated that if you did not click yes by 5.00pm eastern time the following day your employment would come to an end. The witness accepted that the Complainant may have received the email and FAQs outside of normal working hours and the time allowed to respond was 46 hours.  It was put to the witness that there was no rational connection with the timescale imposed in the email and the consequences of not clicking yes and therefore it was an ultimatum. The witness stated she believed it was an offer for people who were unhappy to leave with a severance package. The witness confirmed that she submitted her decision to stay sometime on the first day when she received the ‘fork in the road’ email. The witness accepted that the Complainant had not submitted any decision and that the effect of that was to bring his employment to an end. She also accepted from a HR perspective it would have been better if more information was available about what would happen to existing benefits and hours of work in the new arrangement prior to employees having to sign up.  It was put to the witness that the requirement to work additional hours in the ‘fork in the road’ email and in his contract were different and the requirement for exceptional performance was different to him deciding he would go above and beyond what was asked of him. The witness did not deny this.

 Mr Lyons SC opened email of 19 November 2022 which stated “This note is to acknowledge your decision to resign and accept the voluntary separation offer outlined to you. If this is not your intent, please contact people questions with the subject line fork in the road. The subject line is critically important for this alias so they can appropriately triage your e-mail given the timeframe. Your last working day at the company will be Thursday 17 November 2022”.

The witness confirmed that she could not say for certain who had sent the email.  It was put to the witness that her position appeared to be that because the Complainant did not click yes, he accepted an agreement that he had not yet seen and would not see until the following month on 7 December 2022. The witness stated that she believed that is what the email was saying and confirmed that she did not believe the email was designed to be a binding agreement. The witness accepted that the Complainant had never submitted a resignation letter and stated that the ‘fork in the road’ was a programme that waived the need for a resignation letter. The Complainant sent an email on 26 November 2022 stating he had not resigned and received a response two days later stating he would receive a reply within three business working days, but he did not receive a reply to his queries. Instead, on 7 December 2022 he got an email stating that as he had decided not to click yes this was treated as him having served notice to resign his employment. The witness confirmed that not clicking yes was treated as a resignation. The witness also confirmed that as a far as she was aware there was no reply to the Complainants solicitors’ letters of 13 December 2022 and 19 January 2023. 

Ms Anna Berry

Ms Berry confirmed that her current role with X is Senior HR manager, HR Business Partner and she is based in London. In 2022 her role was HR manager, and she was based in London, but her remit covered a number of regions. Ms Berry confirmed that post the acquisition of Twitter she was involved in consultations within Ireland but that she did not have any dealings and never formally met the Complainant.  Ms Berry stated that at the time the Dublin Office was the European headquarters and employed about 400 people. It had different business units such as sales, finance, legal, IT, and engineering. It was her evidence that the current staffing levels are about 100 people. In respect of the workforce reduction referenced earlier about 139 roles were identified in Ireland and about 12 of them would have been HR posts out of a HR team of 31 people. The witness stated that in terms of the workforce reduction this was done by the organisational leaders. Some were based in the US and there were some based in Ireland. She confirmed that in terms of consultation she worked with Mr O’ Brien from about November 2022 until he left in March or April 2023. She confirmed that Mr O’ Brien was the Complainant’s line manager and that his post was not one of those considered for redundancy as it was a role they needed.  The witness confirmed if someone was not selected for redundancy and just resigned, they would not have received a severance package. The ‘fork in the road’ email was different as that was sent to everyone and if people did not want to stay in the business and did not tick yes, they were on a months’ notice and then received two months’ severance pay. While she could not remember how many people did not tick the box, she confirmed that 35 people in Ireland accepted the severance package. There was a HR team called People Operations in Dublin at the time they could be contacted via Slack, email and a JERA ticketing system where you could raise initial queries. She confirmed that they were based in Ireland and some of them would have been on site. The witness stated that after the Complainant’s email access was cut off, he could have contacted the HR team by going on site or through his manager. It was her recollection that the site was closed on the Friday but reopened on the Monday after the ‘fork in the road’ email. Even if he no longer had access the foyer was manned and reception would have contacted someone for him. The witness was asked what interactions she had with Mr O’ Brien about the Complainant and it was her evidence that she could not recollect any conversation with Mr O’ Brien about the Complainant. She went on to confirm that no grievance was raised with her by Mr O’ Brien and no grievance was raised directly with HR by the Complainant.

Counsel opened the FAQ document and brought the witness through various clauses in same. The witness confirmed that where people did not tick yes, an email was sent out acknowledging their decision to resign and accept the voluntary separation offer that was outlined. It went on to say if this was not your intention and gave an email address to contact and a subject line to put on the email to ensure it was triaged correctly.  The witness confirmed that after the FAQ an email was sent on 7 December 2022 advising that the settlement agreement would issue shortly with a signing deadline of 21 December 2022 and that his employment would terminate on 18 December 2022. The witness confirmed that she saw the letter from the Complainants solicitor of 13 December 2022. It was her recollection that she did not deal with the letter because it came from a solicitor it was dealt with by the Legal Department. She confirmed that she did not recall seeing the further letter of 19 January 2023 from the Complainants solicitor nor did she see the Slack messages he had sent at the time.  In respect of the ‘fork in the road’ email the witness stated from her perspective as a Senior HR Manager that it was not a typical e-mail, but she interpreted it as an offer that if you didn’t want to be part of the business it was an opportunity to go with severance. The witness stated that she did not accept that the Complainant was sacked as he could have ticked yes if he wanted to stay.

Cross examination by Mr Lyons SC

It was put to the witness that she couldn’t dispute the Complainant’s evidence that he raised concerns about what was happening with his line manager Mr O’ Brien on 16 and 17 November 2022. She accepted that she could not dispute that. Counsel opened the Respondent’s grievance procedure and note that the first stage was informal and was that you should discuss with your manager. The witness confirmed that was correct and accepted that the next phase was stage 2 where if you had not received an acceptable response from your manager within 10 working days you could refer the problem to the next level. The Witness accepted that the ‘fork in the road’ email only gave less than two days to respond to it and that Mr O’ Brien had not raised the Complainant’s grievances with her.

 The ‘fork in the road’ email was opened, and the witness was asked if the Complainant had accepted the offer.  It was her evidence that by not ticking yes, he had, by his silence, accepted the offer. She confirmed that as far as she knew he did not receive the severance and accepted that at the time the decision had to be made he would not have seen the severance agreement documentation as it was not available. The witness accepted that the email that issued on 7 December 2022 did not engage with the fact he stated that he had not indicated that he was resigning in his email of 26 November 2022.  The witness accepted that the email stated, “the failure to click yes was treated as you having served notice to resign your employment,” and that the Complainant had not submitted a physical notice to the Respondent giving notice of resignation from his employment. They had operated on the basis that he had not ticked yes.

The witness was asked in respect of the grievance who she was suggesting that the Complainant should have contacted. She confirmed in the first instance it should be his line manager Mr O’ Brien. In respect of clarifications sought by members of the Court the witness accepted that while she interpreted the email as an offer other people might not have. In relation to a query about various email addresses, she accepted that in the period 16 November 2022 to 17 December 2022 there were five separate email addresses for dealing with different issues arising from the ‘fork in the road’ email.  The witness also clarified that the Complainant did not submit a formal resignation.

Re-examination Ms Smith SC

In response to questions from Counsel, the witness confirmed that during the period 16 November to 18 December 2022, the Complainant continued to get paid but was not required to attend for work. She also stated that a grievance could have been processed during that period or he could have raised any queries he had with members of the people team. In respect of the letter from his solicitors that would have been dealt with by the legal team not HR. She confirmed that there were various ways of resigning some people did it by Slack, sometimes a manager would contact HR to say someone had left they didn’t always receive a formal resignation letter, but they would normally follow up.

 Mr Mason Eaves.

Mr Eaves informed the Court that in his current role in X Corp he heads up the technical accounting function and the record to report function which manages most of the expenses of the company globally and that he is based in the San Francisco Bay area. In 2022 prior to the acquisition, he was the Director of Technical Accounting and was also based in San Francisco at that time. He confirmed that he had some limited interactions with the Complainant and had met him prior to this case.

Counsel opened documents relating to the 2022 Global Discretionary Bonus Plan. The witness confirmed he was familiar with same. He confirmed that he was familiar with the calculation of the performance bonus and with the metrics established by the Compensation Committee.  In response to a query as to what happens if a Performance Bonus Pool is not established the witness stated there would be no funds to allocate and therefore no payment. In respect of 2022 he stated that his responsibility was to account for the Performance Bonus Pool and looking at the expenses and accruals related to it. In order to do that he familiarised himself with the Compensation Committee minutes to learn what the metrics were that were used. He confirmed two targets had to be met, revenue and EBITDA (which is an adjusted EBITDA figure) and both are equally weighted in terms of coming up with what the amount would be that would potentially be funded. Counsel opened a spreadsheet to the Court and the witness confirmed he had prepared the spread sheet and the source of the information he used when preparing it was the Compensation Committee minutes. Counsel took him through the spreadsheet. It was his evidence that the spreadsheet showed a significant shortfall in respect of targets for 2022 and it was on that basis a decision was made not to fund the Bonus Pool for 2022. He confirmed the figures were below the 50% required to fund the bonus pool. The witness confirmed that EBITDA stands for “earnings before interest, taxes, depreciation and amortisation.” He confirmed that EBITDA was a metric that companies use to measure things internally. In 2022 the EBITDA fell well below the minimum funding level and the actual funding ended up being zero.

The witness in response to a question confirmed that Twitter Inc was a public company and was listed on the New York Stock Exchange. They were obliged to report to the Securities and Exchange Commission every quarter. Once the company became privately owned it no longer had those reporting obligations. Counsel took the witness through the quarterly reports for Q4 2021, Q1 2022, Q2 2022 and Q3 2022. It was his evidence that you can see the impact of the economy on the Respondent as revenue had come down and expenses are above the revenue figure, so they were in an operating loss.  The witness stated that the figures showed the business was in decline and it was going to be challenging to make the targets that had been set for the bonus. He confirmed that there was a minimum threshold set by the Compensation Committee that had to be met in order to fund the Bonus Pool. There are three target percentages for Revenue so the fund could be 50% 100% or 200% depending on the targets set. Because of significant shortfall in 2022 it was decided not to fund the bonus pool for 2022.

The witness confirmed the purpose of the Twitter Inc Equity Incentive plan was to attract and retain employees and that the Complainant could get RSUs. The Board referred to in the plan was the board of Directors of Twitter Inc and reference to an employee included employees of subsidiary companies. Restricted stock is a stock unit that is an unfunded and unsecured obligation of the company. When an RSU is granted, the person gets a right to receive shares if they are still employed when those shares vest. In relation to tax liabilities arising from the RSU the Company on the employee’s behalf withhold shares to cover the tax due and sell them at the current market value and remit the taxes to the relevant tax authorities. The witness confirmed that after the acquisition there was a rate agreed at which the stock was exchanged for cash and then going forward on the original vesting dates a cash payment at the agreed value would be made. He confirmed that even after the acquisition, the payments of cash instead of stock were made by Twitter Inc.

Cross examination by Mr P Lyons SC

The witness confirmed that he had no evidence that the Complainant had received the document titled 2022 Global Discretionary Performance Bonus document. He accepted that the plan contained company criteria and individual criterion.  In terms of questions put to him by counsel about the Complainants performance the witness indicated that he could not speak to that. He confirmed that the Compensation Committee minutes as far as he knew were not included in their book of documents that were submitted to the Court. Counsel put it to the witness that the Bonus plan allowed discretion to the Board and that the Bonus metric should have been revisited in 2022 when it became known about the acquisition as that was a significant change. The witness stated that there was no requirement to revisit it and that because of the size of the debt at that point they would not have been in a position to pay a bonus.  It was put to him that there was plenty of cash floating around at the time to fund a bonus pool. The witness stated that was not for him to decide.  It was put to the witness that the issue was not that the Company was unable to fund a bonus pool it was that following the acquisition they decided not to. The witness stated that the bonus plan does allow discretion for the company to fund or not fund but he was not part of those decisions. He confirmed that bonus plan for 2022 was not funded and was not paid and that there is no bonus pool going forward. The Witness accepted that the P60 for 2022 included in gross pay the shares the Complainant had received.  A letter was opened to the witness dated 17 April 2024 which set out the deferred cash consideration that the Complainant would have received had he remained with the Respondent. He confirmed that had the Complainant remained with the respondent the calculations in the letter were the amounts he would have received.

Ms Smith SC re-examination

The witness clarified that the additional awards were retention mechanism and it was provided by Twitter Inc. He confirmed that at the start of 2022 when the award was made to the Complainant there was still fluctuation in the market, so the value of the shares was not guaranteed.

6 Summary of Mr Lyons SC closing statement

Mr Lyons SC submitted that this was an unfair dismissal and the onus of proof lies on the Respondent to show that the dismissal was fair. The Act provides for the reasonableness of the conduct of the employer in connection with the dismissal to be taken into consideration. The conduct of the Respondent in this case was manifestly unreasonable and falls well beyond the bounds of what any reasonable employer could objectively stand over. The ‘fork in the road’ email had a number of striking and utterly unreasonable features, including amongst them the fact that it was issued to employees in this country at the stroke of midnight, that it imposed a completely arbitrary deadline of 5.00pm eastern time in the United States the following day for acceptance.  The fact that it required employees to sign up without any consultation or discussion to a new type of employer, described as “extremely hard core” and to be known as Twitter 2.0 within that incredibly short window. It also required a commitment to undefined longer hours at high intensity without any consultation or consideration as to what that might actually mean. Failing which employees would receive a severance payment of three months which in fact the Complainant did not receive. 

This uncertainty was further demonstrated when the following day the Respondent had to issue an email confirming that it was an official communication.  They attached to that correspondence an FAQ which stated there would be no extension of time allowed to consider the ‘fork in the road’ email and imposed a requirement to sign a separate separation agreement, notwithstanding that no copy of the agreement was provided and that the details of that agreement were not known within the window of time within which the acceptance was to be communicated. It further stated that no information could be provided in relation to stock and other compensation and that changes to benefits could not be disclosed at that time.

When the Complainant did not click yes to the ‘fork in the road’ email within the time frame, he was immediately shut out of all IT systems and received an email on 19 November which purported to acknowledge his decision to resign. He emailed on 26 November 2022 confirming that he had never informed the Respondent that he wished to resign.  On 28 November 2022 he received an email that did not engage with his email of 26 November 2022 but promised a response within three days. The response never materialised. On 7 December 2022 he received an email which stated that his failure to click yes was “Treated as you having served notice to resign your employment with Twitter.”  There is no legal basis for an employer to treat silence as the equivalent of having served notice to resign. In this case the Complainant never served notice of resignation. The Complainant’s contract is quite clear at paragraph 11 and states that if he seeks to terminate that should be on notice and in writing. Case law suggests that where resignation takes place it should be affected by unambiguous words of resignation. In Sothern v Franks Charlesy & Co [1981] IRLR278 relied on by the Respondent it makes clear that where words are unambiguous and clearly expressed and known to the employer then a resignation may take place. In Redmond and Dismissal, [22.21} pg495 it states, “If expressed in unambiguous and unconditional terms, a resignation will bring a contract to an end”. The Respondent has attempted to justify its position by opening Slack messages sent by the Complainant to his colleagues on 17 November 2022. However, the content of those messages would not have been known to the Respondent at the time, and this was clear in the email he received of 19 November 2022 when they state that they have treated his non-clicking of the yes box as being equivalent to the service of a notice of resignation. There was no resignation and there has been no objective evidence of such a resignation.  It is clear from the Complainant’s email of 26 November 2022 that he is affirming that he wishes to remain in the employment of the Respondent, and he never received a reply to that email. Later correspondence by him and by his solicitor were received as we heard in evidence but were never responded to.

Mr Lyons SC submitted that it is an untenable suggestion that he in anyway contributed to his dismissal. The Respondent has sought to imply that the Complainant should have filed a grievance and that it would have been processed and may have altered the outcome. They have also suggested that despite the fact his IT access was shut off he could have turned up to the office and dealt with the security team at reception, both are untenable submissions. Mr Lyons SC invited the Court to find that this was a paradigm case of direct dismissal and the Complainant in no way contributed to that dismissal. In respect of redress the Complainant does not believe that re-instatement or re-engagement are viable forms of redress and submits that compensation is the appropriate form of redress.

 Mr Lyons SC took the Court through section 7 (1) (c) of the Act which sets out how loss should be calculated and the decision by Ms Justice Baker in Brady v Minister for Social Protection {2019} IECA  178 in respect of same.  He then opened the case of Hyph Ireland Limited V Michael Kiely UDD 2633to the Court where the undisputed payslips were relied on to calculate the annual salary. He submitted that in this case the payslips are not in dispute and that nowhere in the Hyph case is there an attempt made to shoehorn the analysis into some sort of weekly remuneration metric, which, is not required under the legislation. However, if the Court believes it is necessary to adhere to a weekly remuneration model it was his submission that regulation 11 and 12 were the appropriate regulations.

 Mr Lyons SC submitted that he was suggesting to the Court that the evidence before the Court having regard to the P60, the 2022 compensation letter, and the various admissions made by Ms Wegman on the first day of evidence it is manifestly clear that the RSUs and the money that was subsequently paid by way of deferred cash consideration were in exchange for the Complainants labour and therefore cannot not be anything other than pay.

Mr Lyons SC brought the Court to the spreadsheet where the Complainant had set out his calculation of remuneration including the bonus and deferred cash considerations. He took the Court through the calculation of his loss to date of hearing. He confirmed that the bonus was included for the purpose of calculating remuneration looking backwards but was not included for the purpose of calculating loss going forward, the Complainant to date of hearing had suffered a loss of €731,010 and has an ongoing monthly loss of €17,195 per month. The RSU has been included as part of forward loss as he had payments that would have vested on a quarterly basis up until 2026.

Mr Lyons SC submitted that to accept that the Complainant had waived his entitlement to rely upon the RSUs and that the RSUs should not form part of the calculation would be to violate the provisions of section 13 of the Act. He opened to the Court the judgment in the Board of Management Malahide Community School vConaty [2019] IEHC 486which states “Freedom of contract is severely restricted by section 13 of the Act. Any provision in an agreement which purports to exclude or limit the application of or is inconsistent with any provisions of the Act is void.”  The judgment then states, “In principle, it may be impossible to contract out of those provisions in the case of informed consent”.

The final paragraph opened  to the Court was paragraph 73 that states “The principle of informed consent is set out in Hurley v the Sunday Newspapers case in Kinsella, mean that in order to contract out of one’s entitlements for the purposes of the Unfair Dismissals Act, there must be a fully informed consent, and that there is an obligation on the employer to put the employee on notice that the entering into of a particular contract will entail the loss of statutory rights acquired by the employee.”

It was Mr Lyons SC submission that any submission by the Respondent to the effect that the approach to loss should be constrained by reference to the provisions of the RSU agreements or the contract is both met and fully met by section 13 of the act as interpreted by Mr Justice Simons in the Conaty case. In his final submission Mr Lyons SC stated that the Respondent submitting that the payments were not made by his employer but rather by Twitter Inc., is utterly at odds with the reality of the employment relationship. The payslips provided to the Court included the RSUs and so did his P60. The fact that the origin of the money may have been Twitter Inc. does not take away from the fact that the obligation of the employer is to pay the wages.

Mr Lyons SC submitted that the dismissal manifested when he did not click the yes box. He was excluded from his employment, his IT access was turned off and the employer acted on the basis that his employment had been terminated. The Respondent without any forewarning created a cliff edge scenario which required the Complainant to either sign up or not to the new Twitter 2.0. The Complainant was being asked to sign up to a radically different organisation in circumstances where it was clear that things were changing for the worse, but it was not clear how precisely that was happening. No reasonable attempt was made to explain the position to the employees. When the Respondent sent the e-mail on 7 December 2022 stating you are being treated as having served notice of resignation that in effect meant they were dismissing him. They are treating him or deeming him to have done something that he unambiguously did not do for the purpose of terminating his contract of employment. They terminated his employment because he did not click the yes box.

If the Labour Court determined that in fact, he did not serve notice of resignation, as they purported to treat him as having done, and then proceeded to exclude him from employment, cut off his IT access, exclude him from the premises, and cease to pay him his wages then that is a dismissal.  In respect of the contention that RSUs were a mechanism solely for the purpose of retention the 2022 compensation letter lists a series of payments and equity allocations which are unquestionably and undoubtedly in recognition of the work and as compensation for the work that the Complainant had done. The letter went on to say, “this is a very special recognition of the great work you already do”.  In respect of the suggestion that he was paid an hourly rate and therefore falls within regulation 7, he was never paid on an hourly rate or piece rate and the calculation that has been presented to the Court is notable for the fact that it bears no relationship to any payslip that was ever given to the Complainant or that was given to the Revenue Commissioners. The attempt to rely upon Regulation 7 is totally artificial. Mr Lyons SC stated that the facts in Brady were overturned by the Court of Appeal but not the passage that he quoted to the Court.   What Judge Peart in the appeal does is that he reverses the outcome in relation to section 6 (1) of the Protection of Employees Insolvency Act.

In terms of section 13 of the Act, it was Mr Lyons SC submission that the section is to be given an expansive interpretation, not a narrow interpretation. The reason the section exists is to enhance and provide for employee protection. Anything that is contained either in  the contract or the RSU agreement  that has the effect of limiting in any way the capacity and power of the Court to have due regard to the reality which is that the Complainant did receive RSUs and deferred cash considerations as part of his compensation and remuneration package for many years within Twitter is impermissible and is in breach of section 13 of the Act and cannot be contemplated.

In response to a clarification sought by the Court Mr Lyons SC submitted that the fact he signed the agreements and benefitted from them did not mean he was estopped from resiling from them in this complaint. In terms of the second question whether section 13 has any application in respect of Twitter Inc. under section 13 unless there were informed consent and the agreement specifically and clearly excluded RSUs from compensation for the purpose of the provisions of the Act he was entitled to include them.  The second point is that he was presented with ‘a fait accompli’. There was no opportunity for him to take legal advice. Mr Lyons SC submitted that the constraints in section 13 do not apply only to a contract of employment.

 7 Summary of Ms Smith SC closing statement

Ms Smith SC submitted that the first thing the Court has to consider is whether there was a dismissal. It is the Respondent’s position that there was no act of dismissal. The lack of access to e-mail is a standard issue that arises in a notice period in many tech offices. He was not locked out of the office; he did not attempt to get into the office. He was not told by the Respondent that they were terminating his employment and there is no evidence of the Respondent writing to the Complainant terminating his employment. While the situation was unusual there was an offer of voluntary separation with severance and the method to accept it was not to confirm that you wanted to stay in employment. While the email was unusual it was not unclear that the employee had a choice if they wanted to stay in employment they had to click yes. The choice was the Complainant’s to make, and the consequences of the choice were clear, that if you did not click yes, the employer would treat this as being a resignation. While the Complainant has raised many issues about uncertainty in regard to the severance offer, he could have rejected same by clicking yes.

At the time the reality was the company had changed and was undergoing a cost cutting exercise. In the ‘fork in the road’ email the new owner spells out the direction of the business and the fact that people will need to work hard and to a high standard. Those are not unreasonable requests; they were the reality of the situation.

It is accepted that the Complainant did not send a letter of resignation, and it has never been suggested that the Slack messages constitute a letter of resignation. However, they are contemporaneous messages sent by Mr Rooney to his colleagues and to his line manager. They are very important to assist the Court in understanding what transpired at the time. They prove the fact that the Complainant made a decision, he made the decision not to click yes. He said his goodbyes to his colleagues and in black and white terms he made it very clear that he was leaving.  This clearly demonstrates that the Complainant knew what the ‘fork in the road’ email meant and he made a decision about it and communicated that decision to his line manager and his colleagues. This indicates that what occurred was not a dismissal. While the Respondent said it would treat it as a resignation it was in fact a voluntary acceptance by the Complainant of an offer to take enhanced severance to terminate his employment. While the method might have been unusual, employees who are being dismissed do not get the chance to opt into their employment. While the Complainant stated that some issues in terms of staying on were not clear at that time, he could simply have stayed on to see what changes if any occurred and if he wasn’t happy at that stage he could have brought a different case to the Court. He in effect walked away from his own investment in the company which was the equity he had been granted over the years which he knew required him to be still in employment at vesting day.  Any loss he suffered was caused by his own actions and not the actions of the Respondent.  The Court must firstly satisfy itself that there was a dismissal.

The Complainant in his evidence to the Court never said he raised a grievance with his line manager, and he acknowledged that he had never reached out to HR. It is the Respondent’s submission that there was no dismissal, no constructive dismissal, this was a voluntary termination of employment by Mr Rooney.

In respect of the question of loss Ms Smith SC submitted there are two aspects to it the first being the statutory cap of 104 weeks remuneration which is established by reference to the wording within section 7 and by reference to the regulations.  Section 7 (1) (c) of the Act sets out the cap on remuneration and what’s included in the calculation and that it should be calculated in accordance with the regulations provided for under section 17. 

Ms Smith SC submitted that the relevant regulations in this case are regulation 7(a) and 7 (b) and noted that section 7 (b) provides it is remuneration for the hours worked in the relevant period. The RSUs were not paid for hours worked. Ms Smith SC referenced  case Executive v A Software Company ADJ00027573  where it was held because the Complainant’s remuneration varied by way of payment to him of commission it fell to be calculated under regulation 7 (a) it went on to say that “it was the remuneration earned in the look back period and not the amount paid that is relevant for the purposes of the calculation”.

Ms Smith SC stated she was relying on this case as there are two issues one is the timing because there are issues between bonuses that were paid and bonuses that were earned. The second fact is connected to work done within hours and the Respondent is relying on the fact that the RSUs were not for work done. The witnesses’ evidence was that the RSUs were for retention and Mr Eaves evidence was the only entity that could have provided the shares was Twitter Inc, the qualifying criteria for getting the payment was to be in service. The fact that it was paid through payroll does not take from the fact it was not in respect of work done. Ms Smith SC took the Court through the calculation of remuneration for the reference period in line with the regulations. They excluded the bonus and the RSUs and that is the main difference between their figures and the Complainant’s figures.

In respect of the Brady case being relied on by the Complainant that case was appealed to the Court of Appeal and completely overturned so it is not binding on the Labour Court. The calculation of remuneration has to be done in accordance with the regulations. Remuneration means something very different from loss in the context of the Act. The significant point between the parties in respect of loss is the exclusion of the bonus and the RSUs. The Respondent submits that the RSUs do not constitute a loss to the Complainant by reason of his dismissal. The Complainant signed the RSU agreements and agreed he had obtained legal advice on them. He agreed with the terms so he could get the benefits and he got those benefits. Clause 10 of those agreements state that he cannot rely on RSUs for the purpose of establishing financial remuneration or making any claim of loss arising from termination of employment regardless of how that might come about. The agreements also say that anything in relation to the interpretation of the agreement is to be interpreted in accordance with the law of Delaware and that the Courts in California would have jurisdiction to determine those disputes.  The Complainant agreed to this clause when he signed the agreements. Therefore, the RSUs cannot constitute a loss for the Complainant.

Section 13 of the Act which the Complainant is seeking to rely on deems that a provision would be void it if was to exclude or limit the application or was inconsistent with a provision of the Act. The RSU agreement does not purport to exclude or limit the application of the Act. Nor is it in any way inconsistent with the Act. It is an entirely different scenario to what pertained in the Conaty case whereby the contract sought to exclude the provisions of the Act entirely.  There is no exclusion of the Act in the RSU agreements. In respect of mitigation the Complainant by not ticking the box caused any loss he incurred and in terms of his current employment and his ongoing loss, it is not enough to get a job he has to continue to mitigate his loss.

Ms Smith SC in response to a clarification sought by the Court submitted that the Complainant is estopped and is in breach of the agreements that he entered into. The Respondent does not accept that he did not have an opportunity to take legal advice. In terms of the second question has section 13 any application in the relationship with Twitter Inc. It is the Respondent’s position that they are relying on the RSU agreements that the Complainant entered into.

8 The applicable law.

Section 1 of the Acts defines dismissal in the following manner

Section 6(1) of the Act states.

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6 (7)

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.]

Section 7

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following [the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

F51[(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, or

(ii) 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,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.]

 Section 13 Voidance of certain provisions in agreements.

13.—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.

S.I. No. 287/1977 - Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977.

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.

9 Issues the Court needs to address

 The following are the issues the Court needed to consider:

• Was there a dismissal.
• If there was what type of dismissal was it.
• If it was an unfair dismissal what is the appropriate form of redress.
• If compensation is the appropriate form what was his remuneration for the purpose of the Act, and what are the various elements that should be taken into consideration.
• Does section 13 of the Act apply.
• What are his losses.
• Did he contribute to the dismissal.
• Did he mitigate his losses.

10 Discussion      

Dismissal is in dispute; therefore, it is for the Complainant to establish that a dismissal occurred.  The following facts are not in dispute.

2022. The employment came to an end on 18 December 2022, and his last day at work was 17 November 2022.
2023. The fork in the road email was issued by the Employer, and it required employees to opt in to stay in employment.

• There was no contractual requirement to opt in to remain in employment.

1. There was no legal requirement to opt in to remain in employment.
2. The Complainant did not tender his resignation.
3. The Complainant did not tick the box to opt to remain in employment.

While the Respondent submitted that it did not dismiss the Complainant both Ms Wegman and Ms Berry in their sworn evidence confirmed that it was the Respondent who decided that an opt in to stay in employment was required and that the time frame for opting in was also decided by the Respondent. They accepted that in terms of Irish jurisdiction this was a period of 46 hours. They also accepted that the ‘fork in the road’ email and the FAQ emails linked to same, were sent outside of normal working time in Ireland.

They did not dispute that the Complainant did not tender his resignation. They confirmed that the Respondent decided that not opting in would be deemed to be an act of resignation and that this was not stated in the ‘fork in the road email’.   They accepted that this was unusual and not normal practise. They also confirmed that information in respect of the terms and condition and existing benefits that would apply if you opted in, were not available prior to the expiry of the time limit for opting in.

In considering whether or not a dismissal occurred the Court has to consider the circumstances that pertained at that time and as set out in section 6 (7) of the Act the reasonableness or otherwise of the conduct of the employer.

The evidence before the Court was that the Respondent deemed the Complainant to have resigned. Resignation is not passive nor conveyed by silence.  In Redmond on Dismissal Law (Third edition) [22.22] page 495 it states, “where 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 the employee has resigned.” It is not disputed that this did not happen in this case.  No contractual or legal basis for the Respondent to presume that failure to tick a box within the designated timeframe could constitute a resignation was opened or argued before the Court.

The Respondent in this case, in setting an arbitrary deadline for a response  to the ‘fork in the road’ email did so in the full knowledge that employees  were being asked to sign up to unknown terms and conditions of employment going forward, unknown changes to benefit packages or to sign up to an unknown settlement package the details of which would be determined by the Respondent.  This decision was to be made within 46 hours commencing at midnight on 16 November 2022. While the Respondent submitted and their witnesses gave evidence that they believed the options were clear, the fact that an FAQ had to be issued stating that this was not a fishing exercise would not support those statements in respect of the general workforce. The FAQs referenced further information in respect of international (outside of USA) employees in particular in respect of the question ‘what if I do not tick the box but do not want to resign.’  No clarification on this was issued within the arbitrary time limit set by the Respondent.

No reasonable explanation was put before the Court as to why such a tight timeline had to be adhered to or why the timeline could not be extended to allow all information to be made available to employees so they could make an informed decision. While the Respondent was experiencing financial and other difficulties there was no evidence before the Court that limiting the response time to 46/48 hours was going to have a significant impact that would justify such an arbitrary deadline.  Taking all of the above into account the Court finds that the conduct of the Respondent  in setting an arbitrary deadline, not providing sufficient information for employees to make an informed decision and deeming an employee to have resigned  when no intention  to resign was communicated by the employee,  was not reasonable conduct and on that basis finds that the Complainant was dismissed.

Having decided that a dismissal has occurred, it falls to the Court to determine if the dismissal was unfair. The Court based on the facts set out above and the Courts finding that the conduct of the Respondent was not reasonable finds that the dismissal was unfair.

The next issue for the Court to consider having found that it was an unfair dismissal, is the appropriate form of redress. Both parties submitted that neither reinstatement or reengagement were appropriate or workable. Taking this into consideration as well as all the facts and evidence before it the Court determines that compensation is the appropriate form of redress.

The parties disputed some elements of what was to be considered as remuneration for the purpose of the Act. The parties agreed a figure for basic salary for 2022 and the value of the Employer Pension contributions and Health and Dental Insurance which came to a total of €151,225.

The Complainant submitted that his bonus and his RSUs should be taken into consideration. The Respondent disputed that the bonus and / or RSUs should form part of his remuneration for the purpose of the Act.

The Court first looked at the bonus scheme. The Respondent submitted that no bonus was earned or paid in 2022. In respect of the bonus paid in his salary in March 2022 this referred to the bonus earned in 2021 and should not form part of his remuneration for 2022.  The evidence before the Court from Ms Wegman and Mr Eaves was that because of financial difficulties the targets to trigger a bonus pool from which the bonus would be paid were not achieved in 2022 and no bonus was paid. The Court was taken through the figures and informed that the bonus was discretionary and certain targets had to be achieved in order to create a bonus pool.  The levels set by the Board were not achieved in 2022, no bonus pool was formed and therefore no bonus fell to be paid. The Complainant did not dispute that the bonus paid in his salary in March 2022 was earned during the calendar year January to December 2021. He also accepted that if a bonus was earned in the calendar year 2022 it would fall to be paid in March 2O23. While the Complainant argued that he would have qualified for a bonus in 2022 based on his performance, he did not dispute the fact that the bonus was discretionary, and no bonus was paid to any staff for the year 2022. Even if he had remained in employment, he would not have received a bonus as no bonus pool was formed from which a payment could be made.  Taking into account the uncontested evidence before the Court that no bonus was paid in 2022 or going forward from that date, the Court finds that the bonus should not be considered as part of the calculation of his remuneration for the purpose of the Act.

In respect of the RSUs these were available to staff at a certain level in the organisation and were granted by the parent company Twitter Inc. The Respondent submitted and their witnesses confirmed in evidence, that they were used for recruitment and retention purposes and were not related to work. However, the correspondence of March 2022 which was opened to the Court clearly references the Complainant’s work and exceptional performance.  It would appear to the Court that there was at least some link to performance in the granting of RSUs

It is not disputed that the grants were awarded by the parent company through the payroll of the Respondent. The Respondent submitted that was to facilitate the Complainant paying his tax liabilities on the RSUs.  The Complainant received 11 grants of RSUs between 2013 and 2022 a period of nine years. Both the Complainant in his evidence and the Respondent’s witnesses in their evidence confirmed that in order to receive the RSUs the Complainant had to sign a contract on each occasion he was granted them. The contracts were opened to the Court and contained the following clauses.

The first contract the complainant signed up to in October 2013 stated

Termination.

“If Participant’s continuous active service as an employee, officer, director or

consultant (not including any notice periods, as set forth below) (“Continuous Service Status”)

terminates for any reason, all RSUs for which vesting is no longer possible under the terms of the Notice of Grant and this Agreement shall be forfeited to the Company forthwith, and all rights of Participant to such RSUs shall immediately terminate. If Participant’s Continuous Service Status terminates prior to an Initial Vesting Event and Participant had not been in Continuous Service Status for at least one year from the Vesting Start Date as of the date that Participant’s Continuous Service Status terminated, then all

RSUs awarded in this Notice of Grant and this Agreement shall be forfeited to the Company forthwith, and all rights of Participant to such RSUs shall immediately terminate. In case of any dispute as to whether such Termination has occurred, the Administrator shall have sole discretion to determine whether such Termination has occurred and the effective date of such Termination.

In the event of Participant’s Termination (for any reason whatsoever, whether or not later

found to be invalid and whether or not in breach of employment laws in the jurisdiction where

Participant is employed or the terms of Participant’s employment or service agreement, if any),

Participant’s right to vest in the RSU under the Plan, if any, will terminate effective as of the date

that Participant is no longer actively employed or providing services and will not be extended by

any notice period (e.g., Continuous Service Status would not include a period of “garden leave” or similar period pursuant to employment laws in the jurisdiction where Participant is employed or providing services or pursuant the terms of Participant’s employment or service agreement, if any); the Administrator shall have the exclusive discretion to determine when Participant is no longer actively employed or providing services for purposes of Participant’s RSU grant (including whether Participant may still be considered actively employed or providing services while on a leave of absence).”

And at paragraph 22 under the heading Governing Law and Choice of Venue it stated

 “the grant of the RSUs and the provisions of this Agreement are governed by, and subject to, the laws of the State of California, USA, without regard to the conflict of law provisions. For the purposes of any action, lawsuit or other proceedings brought to enforce this agreement, relating to it , or arising from it, the parties here by submit to and consent to the sole and exclusive jurisdiction of the Courts of San Francisco County, California, or the federal courts for the United States for the Northern District of California and no other courts, where this grant is made and/ or to be performed.”

The other 10 RSU grants that the Complainant signed up to contain the following clauses.

 Section 9 No Guarantee of Continued Service

“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 AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR 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”.

 Section 10 Nature of Grant.

“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 to 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 to future Restricted Stock Units or other grants, if any,

will be at the sole discretion of the Company.

(d) Participant is voluntarily participating in the Plan.

(e) the Restricted Stock Units and the Shares subject to the Restricted Stock Units are

not intended to replace any pension rights or compensation.

(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”.

Section 11No Advice Regarding Grant.

 “The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations or assessments regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares. Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.”

Section 23 Amendment, Suspension or termination of the Plan.

“By accepting this Award, Participant expressly warrants that he or she has received an Award of Restricted Stock Units under the Plan, and has received, read and understood a description of the Plan. Participant understands that the Plan is discretionary in nature and may be amended, suspended or terminated by the Company at any time.”

 Section 24 Governing law and Venue

 “This Award Agreement will be governed by the laws of Delaware without giving effect to the conflict of law principles thereof.  For purposes of any dispute that arises under this Award of Restricted Stock Units of this Award Agreement, the parties hereby submit to and consent to the jurisdiction of the State of California and agree that such litigation will be conducted in the courts of the County of San Francisco. California, or the federal courts for the United States for the Northern District of California, and no other courts, where this Award of Restricted Stock Units is made and /or to be performed.”

The first question for the Court to consider is whether any or all of these various disclaimers contained in the RSU agreements are contrary to section 13 of the Act. The Court having reviewed the documents finds that nothing in the agreement seeks to exclude or limit the application of the Act or is inconsistent with the Act. Nor do the waivers entail the loss of statutory rights acquired by the employee. The agreement does not in any way prevent or seek to prevent a case being taken under the Unfair Dismissal Act.

In this case it records agreement that the RSUs will not be considered as part of normal or expected compensation for the purpose of any case taken under the Act. In other words, it is excluding the RSUs from the calculation of remuneration.  The requirement that the Law of Delaware only applies to the RSUs and queries arising from same, does not prohibit an unfair dismissal case being taken under Irish law. The Court finds that these disclaimers are not disbarred by section 13 of the Act.

The next thing for the Court to consider is in circumstances where the Complainant has signed up to these agreements on eleven occasions over a nine-year period, benefited financially from the agreements and was aware of these waivers, is it now open to him to seek to have the waivers disapplied?  The Complainant’s evidence to the Court was that he did not seek legal advice on these documents. However, it is not in dispute that on each occasion, he signed up to having received, read and understood a description of the plan as provided for in section 23 of the plan. The Complainant accepted in evidence that in order to get the benefit of the RSUs on each occasion he had to sign an agreement and the Court was provided with signed copies of ten of the eleven agreements he entered into.

Taking all of this into account the Court finds that having benefitted from the agreements and having had the opportunity over a number of years to receive legal advice on the agreements, he is now bound by the terms he signed up to. The Court determines that for the purpose of remuneration and or loss under the Act the RSUs should be excluded.

Having concluded that no bonus was due in 2022 and that the RSUs are excluded for the purpose of calculating remuneration. The Court reviewed the Complainant’s contract and noted the following.

 Under Section 8 remuneration the following are listed: a fixed salary, private medical insurance, membership of Twitter pension scheme and permanent Health insurance.

Under Section 5 his hours of work were 40 hours per week Monday to Friday 9.00am to 6.00pm and that no additional remuneration would be paid for any additional hours worked.

 Section 11.8 of his contract states  “ In the event of your employment with Twitter coming to an end in circumstances which could give rise to acclaim 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 or benefits under any scheme of plan (including any equity or share option plan ) operated by Twitter or by any associated Company in which you may participate”.

The Complainant submitted that if weekly remuneration is the appropriate model for calculating remuneration, then regulation 11 and 12 of S.I No 287/1977 are the appropriate regulations. The Respondent submitted that regulation 7 (a) and 7 (b) are the correct regulations. The Court having reviewed the regulations, the Complainant’s contract and concluding that neither the bonus nor RSUs falls to be included in the calculation of remuneration, determined that regulation 4 of S.I No 287/1977 is the correct regulation. As per the Complainant’s contract he was on a fixed salary and his contractual hours were 40 per week.

The Complainant was paid on a monthly basis, and it was accepted by the parties that his base salary for the full year in 2022 was €137,000 which divided by 52 gives a weekly remuneration of €2,634. The value of the Employer Pension contributions was agreed at €10,960 for 2022 and Health and Dental Insurance was agreed at €3,265 which taken together give a weekly amount of €273. Total weekly remuneration for 2022, being €2,908 x 104 weeks = €302,449, being the maximum award as defined by section7 (1) (c) of the Act.

In considering the appropriate compensation to award the Court has to consider if the Complainant contributed to his dismissal. The Court finds, taking into account the speed at which things happened, the lack of response to specific queries raised by himself and his legal representatives, that the Complainant did not in any way contribute to his dismissal.

The next issue for the Court to consider is the actual financial loss incurred that is attributable to the dismissal.

The evidence before the Court was that the Complainant took up employment in September 2023 and that his loss of earnings for the period December 2022 to September 2023 in respect of base salary, pension and healthcare was €113,419.

His monthly pay in his new job from September 2023 to July 2025 was €10,824.  His monthly base salary, pension and healthcare at time of dismissal was €12,602 giving a monthly difference of €1,777 calculated over a 27-month period to July 2025 gives a total loss of €47,988.

The Complainant informed the Court that he received a pay increase from August 2025 which brought his monthly salary to €11,267. This gives a monthly difference of €1,335 over six months to the time of the Labour Court hearing totalling a loss of €8010.  The Complainant confirmed that he would sustain that loss going forward.

The final issue for the Court to consider was whether or not the Complainant had mitigated his loss. The Complainant provided the Court with details of job applications he had made and gave sworn evidence about his efforts to mitigate his loss. The Court is satisfied that the Complainant had made reasonable effort to mitigate his losses. 

Having come to that decision the Court decides to award his full losses to date of hearing of €169,417 (comprising €113,419 +€47,988 +€8,010). The Court also notes that it was over two years before the Complainant received a pay increase in his current employment and that a substantial monthly differential still exists. Therefore, the Court awards prospective losses of €1,335 for 24 months which comes to a total of €32,041. This brings the total compensation awarded to €201,458 (comprising €169,417 +€32,041).

The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
15th April 2026	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Mr Aidan Ralph, Court Secretary.