“Losing the dressingroom” in football-speak at Premiership level is inevitably the precursor to the manager getting the sack. Such a path to the dismissal of Science Foundation Ireland (SFI) director general Philip Nolan was outlined by counsel for the State agency.
“He lost the dressingroom, plain and simple. That is a judgment call the board is entitled to make,” said Mark Connaughton SC at a resumed High Court hearing on Tuesday.
The organisation had become dysfunctional following issues that had arisen in Nolan’s relationship with the board and with senior staff, including fallout from five protected disclosures made against him.
The board indicated it was going to initiate a disciplinary process, he accepted, after investigator Tom Mallon SC concluded he had displayed “inappropriate behaviour” towards senior managers concerned. This was at the “upper level” in respect of two senior staff but did not constitute bullying, and there had been no breaches of corporate governance.
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SFI, however, was entitled to decide not to go down that route in a scenario where board chairman Prof Peter Clinch believed there were dire circumstances threatening the effective operation of the organisation. The employer had the “unfettered right to dismiss unless the contract says otherwise. That is the cornerstone of the law in this area.”
Mr Connaughton acknowledged there had been unauthorised disclosures of highly confidential material relating to the protected disclosures, which featured in the media, “that are horrible” and damaging to Nolan – but this was a separate issue. The source of the leaks had been investigated and nobody within the organisation had been identified.
There was no question of Nolan being dismissed for misconduct, he said, while he could go back to his position at Maynooth University without any stain on his character. Whether he would continue to be “CEO designate” of a new agency merging SFI and the Irish Research Council “is a matter for the Minister”.
There was, however, in the weeks prior to his dismissal, clear indication of how the controversy might be resolved by going down the mediation route. It was outlined in a letter sent to the board from secretary general of the Department of Further and Higher Education, Research, Innovation and Science, Colm O’Reardon, on April 26th – at the behest of the Minister, Patrick O’Donovan. Nolan had suggested this course, while rejecting all allegations of misconduct against him.
The letter stated: “Given that there has been no finding of a breach of good corporate governance nor any finding of bullying, the board may wish to consider whether mediation would be appropriate with a view to facilitating a resolution of the matter. It is understood that this approach is in keeping with Science Foundation Ireland’s Protection of Dignity at Work Policy.”
The board, however, at that point believed SFI was operating in a way that undermined its statutory functions, and decided to dismiss Nolan without notice a month later on the basis that “he didn’t have the leadership team with him”. Returning to his position now was “unworkable”.
[ What next in the Philip Nolan saga?Opens in new window ]
Padraic Lyons SC, for Nolan, said reputation was at the core of the case, and for his client this was “at the very highest level of seriousness”.
It was particularly egregious that there were allegations of misogyny made against him that were made public when they had been dismissed by the investigator as hearsay, he said. “This represents a repeated attempt to damage his reputation in the worst way imaginable, with no opportunity to answer the allegations and clear his name.
“For that reason, fair procedures must be applied... There has to be engagement at a profound level [by SFI] because it relates to reputation,” he added. “As an unsuspended employee, he is entitled to return to work.”
Following the interlocutory hearing, Mr Justice Rory Mulcahy extended orders preventing Nolan’s dismissal until he issues a decision next week.
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