Airport operator DAA has committed to the High Court that it will pause a planned investigation into complaints against its chief executive (CEO), Kenny Jacobs, pending the hearing of his legal case seeking to lift his suspension from the company.
Mr Jacobs initiated a High Court action last week against the State airports company seeking his return to work and declarations that the board has prejudged his removal from office.
The CEO claimed in an affidavit – or sworn written evidence – that the decision by the board last month to start an investigation into him around 20 alleged issues is “tainted by reasonable objective bias” and that the outcome has been “predetermined”.
Counsel for DAA, Mairéad McKenna SC, told Ms Justice Marguerite Bolger as the case came before her briefly on Monday afternoon that DAA is “absolutely opposed” to Mr Jacobs’s application.
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Ms Justice Bolger was standing in for Mr Justice Brian Cregan, who is assigned to preside over the case. She said that the court is prepared to give the case an “urgent hearing date” and put it back for mention on January 23rd. A hearing is expected to take place in early February.
Padraic Lyons, SC for Mr Jacobs, said that both sides have agreed that DAA, which runs the Cork and Dublin airports, would file a responding affidavit by 6pm on Friday to an affidavit submitted last week by Mr Jacobs. The legal team for Mr Jacobs has undertaken to file a replying affidavit by 6pm on January 22nd.
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The row between the board and chief executive followed two protected disclosures against Mr Jacobs early last year which were not upheld after an investigation by a senior barrister, Mark Connaughton SC.
Mr Jacobs noted in his evidence that the investigator rejected allegations from one of the complainants that he engaged in “sexist, misogynistic, racist, homophobic and ageist behaviours” in comments to or about employees.
New allegations subsequently emerged, leading to a loss of board confidence in the chief executive and decisions last month to initiate a new investigation and suspend him with full pay in the meantime.
This follows Minister for Transport Darragh O’Brien’s refusal to sign off on an exit package, known to amount to a figure of close to €1 million, for Mr Jacobs that had emerged from mediation between both sides.
Kelly Smith SC has been appointed to carry out the new investigation.
Ms McKenna told the court that the investigator would be instructed not to start her work, pending the hearing of Mr Jacobs’s application.
The terms of reference state that while the investigator can make conclusions on the various allegations and reasons for each finding, she cannot comment on the seriousness – or otherwise – of any findings, Mr Jacobs said in his written evidence.
“The extent to which the board have studiously designed the investigation to ensure that it not only remains the ultimate arbiter of the ultimate outcome of the process, but that no independent person could even make a comment on what the appropriate outcome should be is striking,” he said.
Mr Jacobs said that he was “shell-shocked” coming out of a virtual meeting with DAA chairman Basil Geoghegan on December 15th, where he was informed that he was being suspended.
Claiming that he had been sick at a service station only minutes after having been told by the DAA chairman to leave his office, he has told the court that the stress being caused to him, his wife and his family by his suspension and matters leading up to it has been “immense.”
The board decided that Mr Jacobs be placed off duty during the investigation because of the risk of interference with witnesses and retaliation and potential for leaking of confidential information to the media, according to minutes of a board meeting, quoted in the CEO’s affidavit. He denied that there were any such risks.
A spokeswoman for DAA has declined to comment on the allegations in the affidavit, pending the filing of the semi-state’s own written response to the court.
