Professor Philip Nolan has failed in his bid to secure further High Court orders preventing his dismissal as director general at Science Foundation Ireland (SFI).
Mr Justice Rory Mulcahy also refused to grant orders permitting Prof Nolan’s return to work at the foundation pending full determination of his court case.
However, his earlier short-term injunction preventing dismissal will remain until he makes final orders in this pretrial application.
It was not disputed that the director general’s contract permitted the SFI board to dismiss him “for no reason at all”. The principal question for the court in this application was whether Prof Nolan was dismissed for misconduct (which would have entitled him to fair procedures) notwithstanding SFI’s claim to the contrary.
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The judge said the SFI board gave some reasons for the dismissal which are “no doubt connected” to disruption following claims made against Prof Nolan by five senior staff members last December. Prof Nolan may be able to show at the full trial that this was, in substance, dismissal for misconduct, the judge said.
However, he said, the current evidence does not establish he was dismissed for misconduct and he has not met the “high” threshold for granting longer-term mandatory orders.
The judge said Prof Nolan may have achieved some of what he sought from these proceedings by having SFI confirm “in clear terms that he was not dismissed for misconduct”.
The case will return to court on July 4th to finalise matters.
Prof Nolan is understood to be considering “all his legal options” following the decision.
Sources close to Prof Nolan said after the ruling that he was grateful the judgment clearly recognised that there was no misconduct on his part at the agency and that there should be no impact on any future roles”.
They said Prof Nolan was “disappointed” with the lack of a continuing injunction.
Prof Nolan has been appointed CEO-designate of Research Ireland – a planned merger of SFI and the Irish Research Council. SFI told the court it has no role in the appointment of the CEO of Research Ireland. This is a matter for the Minister for Research, Innovation and Science.
Three weeks ago, Mr Justice Mulcahy granted Prof Nolan orders halting his dismissal from SFI for one day, after which SFI said it agreed, without prejudice, to a temporary extension of these.
A former member of the National Public Health Emergency Team (Nphet) who came to public prominence during the Covid-19 pandemic, Prof Nolan first turned to the High Court days after receiving a letter from the SFI board terminating his contract.
The letter noted two reports on claims made against him by five senior staff made no findings of bullying or corporate governance breaches against him.
However, the board believed there was a “breakdown” in relations between Prof Nolan and the executive committee and a “threat of the most serious kind” to the foundation’s performance of its statutory duties.
While a barrister’s investigation into the claims against Prof Nolan made no findings against him, it concluded he engaged in inappropriate behaviour that could ground allegations of gross misconduct. Prof Nolan emphatically rejects the charge and says he should have been permitted to contest it via a disciplinary process.
His lawyers said that instead of invoking a disciplinary process over this, the SFI board did a “volte face” and terminated their client’s contract without warning or fair procedures last May 27th.
SFI, represented by Mark Connaughton SC and Shelley Horan BL, instructed by McCann Fitzgerald solicitors, said Prof Nolan was let go pursuant to his contract terms. Fair procedures were not required for this “no fault” termination, the foundation submitted.
Mr Justice Mulcahy said the characterisation of the termination as “no fault” somewhat belies SFI’s own arguments, particularly in affidavits alleging multiple instances of dysfunction at the foundation.
The reference in the dismissal letter to not “prolong[ing] this matter and the discord it has produced” seems to reference the disciplinary matters, and Prof Nolan reasonably understood that board’s decision related to the allegations against him, the judge said.
SFI’s submissions sought to make a virtue of it having been made clear to Prof Nolan that he had not been dismissed for misconduct, but the letter to him “left significant doubt that that was the case”, added Mr Justice Mulcahy.
However, the SFI affidavits “make clear” its contention it did not decide to dismiss him because of misconduct.
Welcoming the court ruling, Science Foundation Ireland (SFI) said the judgment brought “greater clarity and stability to the leadership of SFI after a challenging period for the agency, its staff and our stakeholders”.
“SFI and its board have at all times sought to adhere to the culture and values of the agency; to promote accountability, to safeguard public money, to demonstrate best-in-class corporate governance, to maintain high ethical standards, and to ensure a culture of dignity and respect in the workplace,” the State agency said.
The agency said it was an important part of a board’s job “to take difficult decisions that are in the best interest of the organisation and to deal with crises when they arise”.
“SFI board members have taken their public service seriously in challenging circumstances and the staff of SFI have demonstrated exceptional professionalism and commitment to persevere with the Foundation’s important work,” the organisation said.
“Following this decision, SFI can now refocus on its goal to support Ireland’s ambitions to be a global innovation leader in scientific and engineering research to support the advancement of the Irish economy and society.”
The Department of Further and Higher Education said on Friday that the necessary legislation to enable the establishment of Taighde Éireann – Research Ireland had recently passed all stages in the Oireachtas and had been signed by the President.
It said the establishment date for the new agency would be designated by the Minister and that drafting of the required secondary legislation arising out of the Act was under way.
The department said it “would not be appropriate to comment on potential future arrangements at this stage”.
“Science Foundation Ireland is fully operational and continues to deliver on its mandate to fund and support excellent and impactful research and innovation for the benefit of Ireland’s economy and society. There will be no disruption to existing services and supports for researchers, or to ongoing research programmes.”
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