There are likely to be more former Irish workers who were treated similarly to the Twitter employee who received a record unfair dismissal award this week, but decided not to take a case, according to an employment lawyer.
Elon Musk's company was ordered to pay an Irish record unfair dismissal award of €550,131 to a former senior employee at the Workplace Relations Commission (WRC) last week.
Former source to pay director Gary Rooney received the record settlement after he was dismissed over failure to respond to the billionaire's 'Fork in the Road' email.
On November 16th, 2022, Mr Musk sent all Twitter staff an email that read: "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.
"If you are sure that 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 will receive three months of severance.”
Speaking to BreakingNews.ie, Dublin-based employment lawyer Barry Crushell explained that many X/Twitter employees who were on lower salaries may have chosen to accept settlements.
"Although this is a record amount, there are other employees who have lower salaries who have been treated in a comparable manner. However, because their compensation isn't as high as this employee's, in many cases they go unnoticed.
"Furthermore, in my experience, tech companies making people redundant will try to avoid litigation by offering employees settlement agreements prior to their exit.
"This may be an offer of salary ranging in multiples of weeks or months, in return for a commitment not to bring a claim. For junior employees, they may feel compelled financially to accept such an offer given they would not have the safety net that more seasoned and higher-paid executives may have had to weather out unemployment over a period of time while pursuing a claim against their employer.
"In my experience, although this decision may give some confidence to others who are considering rejecting a settlement proposal, unfortunately, the way the compensation process works for claims of unfair dismissal is that the compensation payable is limited to loss of earnings only.
"The employees normally have an obligation to mitigate their losses, so in many instances, given settlement proposals will often come close to what an employee would be expected to lose in terms of future income, bringing a claim against that employer is not necessarily a financially, strategically wise decision."
He explained that tech company bosses based in the US often mistakenly think employment law is the same everywhere, or hope to ignore it.
'At-will contracts'
"In the United States, most contracts are known as 'at-will' contracts of employment. This means either party can terminate the agreement at any stage without suffering any significant degree of ramification.
"Quite often, when a decision is made by management in the US to carry out a particular course of action, there is an expectation that it can be applied uniformly across all jurisdictions, but a significant proportion of most tech companies are based in Ireland, where we have a very different regulatory regime. In particular, the Unfair Dismissals Act, which was enacted in 1977, is there to prevent arbitrary dismissals of the kind that we saw in relation to this Twitter employee."
While €550,000 is a large amount of money, Mr Crushell feels Mr Musk may see it as a small price to pay as he slashed the workforce and transformed Twitter into X.
"In this case, I don't think Elon Musk really cared about the consequences that followed on foot of any of those aspects of consideration, because he had a particular objective, and regardless of the consequences, would probably regard the legal, commercial and reputational damage that followed, to be a form of inevitable collateral that was required in achieving a greater objective.
"He has slashed the number of people working in X, formerly Twitter, and it seems to be a cost he was willing to pay."
Musk demands
Mr Musk is infamous for placing extremely high demands on his workers in his many companies, which include the likes of Tesla and SpaceX.
Known to have an extremely high workrate himself, he places the same expectations on others, according to many who know him, including Walter Isaacson, who published a biography of the 53-year-old last year.
Looking at the expectations lined out in the email, Mr Crushell said it pointed to other areas which may be contrary to Irish employment law.
"It appears to me that Elon Musk's communication signalled an intention to disregard any norms that would ordinarily be expected in the employment relationship in Ireland.
"For example, the Organisation of Working Time Act limits the amount of hours that can be worked in any given week, out of health and safety concern for employees.
"It appeared as if Elon Musk wanted to disregard the legislation that is there to protect the physical and mental wellbeing of employees by hammering home an ethos or culture where individuals would be working excessive hours and there would be a heightened expectation in respect of output that could only have an adverse consequence on the employees concerned.
Based on what Elon Musk was striving for, it would appear to me that he is setting himself up for a raft of claims.
"It would be interesting to see, for those employees who have remained, if there has been such a seismic change in the work culture, how long will they be able to sustain working in such an environment and what claims may follow in the future.
"Based on what Elon Musk was striving for, it would appear to me that he is setting himself up for a raft of claims in respect of excessive working hours, failure to pay adequate compensation for hours worked, and ultimately constructive dismissal claims if conditions become so intolerable that the employee is forced to resign in order to protect their physical and mental wellbeing.
"At the same time, it appears to me, he still will not care because this will be a price he is willing to pay for a culture he wants to create."
