December 01, 2022
Just a month or so into his tenure at the helm of Twitter, Elon Musk has left little doubt – for both denizens of the platform and casual observers alike – that he appears to believe the adage about there being no such thing as bad publicity.
Were this a tale of an obscure, new tech start-up or a novice executive, the deluge of barely half-baked ideas, hastily promulgated and swiftly publicized policies, and quarrelsome rhetoric would be easy to brush aside as awkward growing pains or perhaps even charitably characterized as an admirable if wrongheaded willingness to think outside the box.
However, because of Mr. Musk’s high profile and the supersized influence that Twitter has on our public discourse, Mr. Musk’s idiosyncratic views and erratic style are difficult to ignore. More than that, they are also worth taking seriously to the extent that they have the potential to set the tone on topics ranging from freedom of expression to employment relations.
Mr. Musk’s most recent edict came in the form of an ultimatum to Twitter employees on November 16, 2022: commit to being “extremely hardcore” and working “long hours at high intensity” or see themselves out the door, receiving “three months [sic] severance.” In Canada, this pronouncement would raise not only eyebrows but also some serious questions of employment law.
First it is worth noting that the terms of the bargain, such as it is, are likely far too light on specifics to be enforceable if they were to be accepted. In the absence of a “hardcore” scale, there is no objectively defined set of criteria against which employees’ above-and-beyond dedication and performance could be measured. As a result, even if employees were inclined to take the plunge Mr. Musk demands they do, such an agreement would likely lack the certainty of terms required for it to constitute a binding contract.
But second, and arguably more importantly, in common law jurisdictions across Canada, the “fork in the road” – as Mr. Musk entitled his message to staff – has a third prong, namely constructive dismissal.
Constructive dismissal can be thought of as a forced resignation. It refers to the conduct of the employer, or circumstances which the employer creates or permits to exist, that make it impossible for an employee to continue in the same job. Often, as in the case of the “Twitter 2.0” Mr. Musk envisions, this takes the form of the employer attempting to unilaterally impose changes to a fundamental aspect of the employment relationship. This can be substantial reduction in pay, a demotion, or a substantial increase in workload. While an employer can propose such changes, employees are generally at liberty to either accept them or insist that the employer continue to abide by the terms of the existing employment relationship. Where the employer refuses to do so – either explicitly or by its conduct – an employee may be able to treat that refusal as a constructive dismissal. Constructively dismissed employees, in turn, may seek damages measured by the severance and termination pay to which they may be entitled under the provisions of their contracts and applicable law.
This is not to say that employers’ hands are completely tied when it comes to making reasonable changes in the workplace. In fact, the courts have consistently confirmed that employers enjoy a degree of latitude that allows them to operate and adapt to changing circumstances. Minor changes to scheduling, duties, reporting requirements or remuneration are not likely to give rise to a constructive dismissal. What this example highlights, is the importance of employers proceeding thoughtfully and in a measured and deliberate manner. This call for caution is only amplified as employers and employees adjust to a workplace environment profoundly changed by the pandemic. The disruption caused by COVID-19 has clearly highlighted the importance of flexibility and dispelled many long-held views about productivity, making it that much more important that drastic shifts be approached with caution.
As for Twitter, the tenor of Mr. Musk’s ultimatum leaves little doubt as to the profound changes he seeks to implement. One wonders whether his chosen approach is an optimal way of motivating employees and inspiring genuine dedication on the part of Twitter staff but there is no doubt that he is free to ask them to commit to the new “hardcore” ways of Twitter 2.0. There is also no doubt, however, that at least in Canada, employees have a choice in the matter. Those who are not prepared to embrace Mr. Musk’s vision may be entitled to severance compensation as provided in their respective employment agreements and the applicable law rather than an amount unilaterally imposed by their employer.
The tech industry is replete with catchy if vague mottos: from Google’s “Don’t be evil” to Facebook’s “Move fast and break things” and Apple’s “Think different.” It increasingly seems that a good one for Mr. Musk to consider adopting may be the less flashy but time-honoured “Measure twice, cut once.”