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What next in the Philip Nolan saga?

Science Foundation Ireland will in the High Court attempt to justify its decision to dismiss Nolan as director general of the State agency

Prof Philip Nolan. His lawyers contend there was 'no conceivable justification' for his firing 'in the most egregious fashion' and fair procedures were not applied. Photograph: Colin Keegan/Collins

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Kevin O'Sullivan
Tue Jun 11 2024 - 01:00

The next stage in the controversial dismissal of Science Foundation Ireland (SFI) director general Prof Philip Nolan is about to play out in the High Court, when the embattled State agency will attempt to justify its decision.

Nolan’s lawyers contend there was “no conceivable justification” for his firing “in the most egregious fashion” and fair procedures were not applied.

The State-funded research agency announced on Tuesday, May 28th, that Prof Nolan was no longer its director general and that a new acting head had been appointed. Nolan lodged a High Court application to prevent his dismissal on May 30th, and that is due to return to the High Court on Tuesday.

Counsel for the SFI said in a previous hearing the “only basis” for terminating his employment was by reference to the “express terms” of his written contract. The board decided it was “not going down the road of invoking disciplinary proceedings”.

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They did so on the basis of what it believed was a breakdown in relations between Nolan and his executive management team that undermined proper functioning of the organisation – which employs 120 people and has an annual budget of €240 million.

Two short hearings in late May revealed new details about five protected disclosures against Nolan, made by four senior managers and another staff member, four of which were made on the same day in December 2023.

As Nolan sees it, his appointment in May last year as “CEO designate” of a new body, merging SFI and the Irish Research Council “amounted to an endorsement by Government of my leadership and strategy” – and this contributed to the board and executive committee belief they “were being sidelined and disempowered”.

An independent inquiry by Tom Mallon SC into the misconduct allegations found he had not been in breach of corporate governance. It did not make any findings of misconduct against him, or that his conduct constituted bullying. Nolan has repeatedly denied all allegations and criticised how the process was conducted.

However, the investigation concluded he had displayed “inappropriate behaviour” towards the managers concerned, which was at the “upper level” in respect of two senior staff.

The investigation report submitted to the protected disclosure group (PDG) – a three-person board subcommittee – said there may be a case to answer by way of a disciplinary hearing. The board accepted this finding, while Nolan sought unsuccessfully to have this resolved by mediation while vehemently denying all allegations against him.

Mr Justice Rory Mulcahy, following an ex-parte application, said he was satisfied Nolan made a strong case and ruled he be allowed remain in his post but not physically return to work while awaiting the return of his High Court application, due Tuesday.

In his affidavit opened in court, Nolan said he found the PDG report “and its immediate acceptance by the board without any engagement with me to be truly alarming”.

“I had engaged in the process in good faith but it now clear, in light of developments that have taken place, that this process was part of an orchestrated effort to exit me from SFI.”

Specifically, the investigator had declined to interview witnesses from Mazars and consultants Praesta who had witnessed multiple interactions between him and the executive committee. He had retained the latter as executive coaches “to support the team to find a way to work better together”.

The leaks

Nolan indicated he believes documents were leaked by someone within SFI, noting media coverage had referred to misconduct allegations with “extraordinary level of detail which could only have been provided by someone who had seen or was in possession of the investigation report and/or the PDG report, which was limited to members of the board and the reporters [who made protected disclosures against him]”.

“There was a persistent reference to ‘medical leave’ with the use of inverted commas as though casting aspersions as to the genuine nature of my illness,” he submitted. “SFI’s response to the media coverage was for the deputy director general [Dr Ciaran Seoighe] to issue an email to staff ... which in no way addressed the serious breach of confidentiality in the leaking of the report and neither did the email seek to protect my good name and professional reputation.”

The dismissal letter

Nolan’s dismissal letter from chairman Prof Peter Clinch was emailed to him late on May 27th after a board meeting, which he did not attend. It discussed the implications of the investigation report and PDG findings.

The letter opened to the court said the board had “repeated its great concern about the current functioning of the foundation”, adding that “it is [their] considered view ... that there now exists a threat of the most serious kind to the performance by the foundation of its statutory responsibilities”.

It noted there were “no findings of bullying against you or breaches of good corporate governance, but that the PDG had recommended the invocation of disciplinary proceedings against you in respect of the instances of inappropriate behaviour found in the investigation report, which findings we understand you do not accept”.

Clinch added the board had to consider whether it was in the interests of SFI “to prolong this matter and the discord it has produced, including the loss of trust at the executive level that is a clear threat to the ability of the foundation to meet its statutory functions”.

The board concluded “it is neither in the foundation’s interests nor yours to initiate a disciplinary process on foot of the PDG report but it can’t ignore the breakdown in the relationship between you and the executive committee”. SFI management “is not functioning effectively” and it could not allow that situation to continue.

“Your position in rejecting certain findings of the investigation report is noted but the board has decided, with regret, that termination of your contract of employment ... is the correct course,” the letter added.

The chairman said SFI would contact Maynooth University on terminating a secondment arrangement, but that Nolan “may wish to inform them ahead of time that you will be returning”. Nolan has a permanent research position at the university, which allows for his return there. After starting his academic career in UCD, he became president of MU before moving to head the SFI.

What happens next

Nolan at one point said because of the manner where he was isolated from and by the board he had become “understandably fearful that any disciplinary process would be tainted, biased, predetermined and unfair to me”.

In his affidavit, he said: “It is inevitable that if SFI is permitted to terminate my employment that I will not be retained as the CEO designate of Research Ireland and then not be appointed” to the new position.

He believed, however, that was no good or substantial reason why he could not return to his job “and continue to perform it pending the amalgamation into Research Ireland”.

The SFI and the research community it serves “will be seriously disadvantaged if the amalgamation is delayed or stopped”, he said. “For as long I, as the best qualified person for the role of director general, am not in the job the more the organisation and the research system will suffer.”

It is understood the Government wants the merger, a critical strategic move to enhance future economic development and Irish competitiveness, to proceed.

A spokesman for Minister for Further and Higher Education, Research, Innovation and Science Patrick O’Donovan said the legislation to establish Taighde Éireann – Research Ireland – “is nearing completion of the required Oireachtas legislative processes”.

“The establishment date for the new agency will be designated by the Minister through secondary legislation, after the primary legislation has been enacted. It would not be appropriate to comment on potential future arrangements at this stage,” he added.

He declined to indicate if Nolan is still chief executive designate of the new agency.

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