Union Accuses Game Studio Of Union-Busting, Studio Denies Employee Was Disciplined For Activism

The UK’s Independent Workers Union accused Monument Valley and Assemble With Care studio Ustwo Games of “union-busting” in a statement today. Threatening legal action, the report alleges that senior Ustwo programmer Austin Kelmore - also the branch chair and founding member of the union’s Game Workers Unite branch - suffered “victimisation” and “unfair dismissal” because of his union actions.

Ustwo denied these allegations in a statement this morning, which several current employees retweeted.

Ustwo Games is a mobile game studio based in London. Recently, the team released Apple Arcade game Assemble With Care, which Kotaku described as a “melancholy adventure in stuff repair.” Kelmore, a main programmer on that game, has been extremely active with Game Workers Unite, a labour initiative advocating for better working conditions in the games industry. (Game Workers Unite UK is a branch of the Independent Workers Union of Great Britain.)

According to the report from IWGB, Ustwo’s human resources department took issue with Kelmore’s focus on “company feedback, diversity schemes and working practices,” reads a cited email from Ustwo HR in October 2018. The email also claimed that “It feels that Austin is a self-appointed bastion of change and sometimes speaks on behalf of others.” A senior manager questioned Kelmore about his union activities, according to the report, which also criticises Ustwo for not giving Kelmore access to a union rep in a disciplinary meeting.

A union rep reached out to clarify that Kelmore did not have access to a union rep, as is his legal right, because he did not know the initial meeting was disciplinary in nature. Kelmore was subsequently put on “gardening leave,” the UK’s term for a notice period pending dismissal.

A statement from GWU UK secretary Jamie Cross reads:

“Despite Ustwo’s claims of being as much a family as it is a company, it has decided to leave Austin, one of its best developers, completely orphaned. Austin and his family are not only left without their main source of income, but also unsure if they will have to uproot their whole lives and leave the country in a few weeks. The union will not stand idly by in the face of this unlawful and vicious act, and is determined to fight back until this decision is reversed, either voluntarily or through the courts.”

Reached over Twitter direct messages, Kelmore declined to comment for this article.

Ustwo claims that Kelmore was dismissed “for reasons unconnected to his membership of a trade union or his undertaking of trade union activities” in a statement posted to Twitter this morning. Ustwo says that they have other union-affiliated employees, adding that the IWGB’s statement contained “inaccuracies and omissions . . . which are misleading.” Retweeting the statement, Assemble With Care lead developer Matt Newcombe said, “It breaks my heart to see the reaction given to a misconstrued situation that people are only hearing one side of, it does not reflect the reality.”

A representative from Ustwo told Kotaku Australia over email:

Austin Kelmore will be leaving Ustwo Games in the near future for reasons unconnected to his membership of a trade union or his undertaking trade union activities. We have other employees who are members of trade unions and we respect the right of our employees to unionise. There are inaccuracies and omissions in what has been stated by IWGB which are misleading. However, to respect our employees’ privacy it is not appropriate for us to comment further on this matter.

Reached over the phone, an IWGB representative told Kotaku that Ustwo’s statement is “obviously ridiculous. What we said was completely true, otherwise we wouldn’t have said it.” They pointed out that Ustwo didn’t say what specifically was inaccurate or omitted. When Kotaku asked whether IWGB had any bias toward Kelmore’s account, as he’s a GWU UK founding member, the representative said that that fact “makes his dismissal more egregious.” The representative would not share where the information in the IWGB’s report was sourced from. (Kotaku has reached out to several employees in hopes of verifying the account.)

The union has given Ustwo until October 4 (UK time) to take back their decision before they initiate legal proceedings.


Comments

    In other news, an Ustwo Games representative told Kotaku "We love unions, unions are really trendy at the moment and we're hip to that. Some of our best friends are union members. One of our daughters even dated a union member. We have no problem with any of our employees being a union member so long as they ensure that all discussion of wages, working conditions, company feedback and diversity schemes occurs entirely within privacy of their own homes and is not disruptive in any way to the way we currently do things in this workplace."

    Reached over the phone, an IWGB representative told Kotaku that Ustwo’s statement is “obviously ridiculous. What we said was completely true, otherwise we wouldn’t have said it.”I'm going to try that if I ever go to court. "It's completely true that I'm innocent your honour otherwise I wouldn't have said it."

      The stupidity of that reasoning is that it also makes Ustwo's statement completely true, because otherwise they wouldn't have said it. It's also conspicuously missing any reference to evidence, aka "it's true because we have proof".

        The IWGB makes a number of verifiable statements which Ustwo makes no effort to specifically refute, simply muddying the water by alleging unspecified "inaccuracies and omissions".

        Court cases rarely involve one party simply lying, most often they are about collecting facts which are rarely in dispute and drawing conclusions from them. In this case IWGB's facts are not in dispute, specifically A) Kelmore was actively organising on the part of the union, B) Kelmore was sacked, C) at least one email exists from the Ustwo HR department complaining about Kelmore's focus on “company feedback, diversity schemes and working practices." These are all irrefutable facts.

        Given these facts, IWGB has established a strong prima facie case that Kelmore was likely dismissed for the reasons previously complained about by the HR department. If he was dismissed for other reasons the onus falls upon Ustwo to provide additional facts that might change how a court interpreted the dismissal. (Something like, "sure we didn't like Kelmore's focus on organising but he asn't sacked for this, instead he was sacked for harassment/being late repeatedly/poor quality work/whatever.)

          IWGB's allegations are in dispute, as Ustwo's statement clearly states. Those allegations include that Ustwo victimised Kelmore, and that Ustwo fired Kelmore because of trade union activity.

          Not all the allegations the IWGB presented are irrefutable, nor publicly verifiable, and the facts you listed don't constitute a strong case for unfair dismissal. Union members are not immune to dismissal and are not above reproach, and Ustwo had already stated at the time the dismissal was for performance reasons. Union representatives in the UK are only permitted reasonable paid time off to work on union issues if the union is officially recognised by the employer and if the union is independent. What constitutes reasonable must be negotiated with the employer, and if Kelmore's union activities unreasonably infringed on the work he was employed to conduct then his dismissal would be fair, regardless of the fact those activities relate to a union.

            The facts I listed don't present a strong case for unfair dismissal (at least not in your extensive legal experience) because I've written a throw away comment on an entertainment website, not a legal brief. IWGB, however, does happen to have a legal brief in which the argument they're making seems fairly straight forward and supported by actual evidence.

            You again conflate allegations and interpretations with facts themselves, and then go on a few wild speculations of your own based on nothing whatsoever that I can ascertain.

            Ustwo are obviously denying that the Kelmore was dismissed for his trade union activities because that would be illegal, however in response they don't actually claim anything that might provide an alternative explanation for dismissal. They just muddy the waters with nebulous and unspecified "inaccuracies and omissions".

            Also worthy of note, the entire second half of your second paragraph is directly contradicted by Ustwo, who expressly state that the dismissal was "unconnected to his trade union activities".

              Not extensive legal experience, just first-hand experience fighting a protracted unfair dismissal case, as well as assisting another person with their own. Both cases were won, so I'm quite well-versed in what the burdens involved are in Australia. UK unfair dismissal laws are largely similar, based on cursory research before I commented.

              You haven't seen IWGB's legal brief because they haven't filed one yet, they've only made a public statement and demand, threatening future legal action. You also don't have access to the evidence for all allegations, so you're not in a position to assess a hypothetical brief's straight-forwardness or strength.

              I haven't conflated allegations with interpretations of fact. The three facts you listed aren't in dispute. But the three facts you've listed do not constitute unfair dismissal because they lack an unlawful act (which requires one of the two allegations I noted above). All the three facts you listed assert is that a union representative was dismissed from his job and that separately the company was concerned with his distribution of time.

              The two allegations I noted ('victimised' and 'dismissed due to union activity') are directly from the statement the IWGB issued, so it's neither speculation nor 'based on nothing'. Since basic diligence would have had you read their full statement before commenting, I'm sure you must know this already.

              Ustwo has provided an alternative explanation for the dismissal: performance reasons. They're under no obligation to elaborate further in a public statement, and opposingly would have been advised by their own legal team not to reveal any details publicly before a potential court case.

              I don't concur that the last part of my comment is contradicted by Ustwo. Hypothetically, if someone repeatedly doesn't show up to work so they can binge Game of Thrones and they're subsequently dismissed, that dismissal is not 'connected to Game of Thrones'. The dismissal is solely because they didn't show up for work, the reason why is immaterial. Likewise, if Kelmore neglected or failed to perform his work obligations and was dismissed on that basis, then it's immaterial what he was doing instead and is indeed 'unconnected to' any activity other than his work performance.

              Of course, neither your reply here nor your original one have much at all to do with what I said in the first place, which was that the response made by the union was stupid. The logic of their response is faulty, and they did fail to mention that they had evidence in their response. I've made no comment on who I think is right or wrong here because, correctly, I don't have all the information necessary to come to a conclusion. Considering your adversarial responses, I'm not convinced you share that view.

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