In the course of a dramatic 80-minute hearing, new details of the sequence of events leading to the dismissal of Science Foundation Ireland (SFI) director general Prof Philip Nolan on Monday last were presented to the High Court.
Of most significance was Nolan’s affidavit claiming his appointment in January 2022 was with a mandate “to achieve and deliver considerable change and reform” of the State agency with an annual budget in excess of €240 million, but this was resisted by senior management.
From the outset he had “encountered profound resistance to change among the executive committee”, he said.
When later appointed as “CEO designate” of a proposed new body Research Ireland – merging SFI and the Irish Research Council – this was seen as an endorsement of him “and did not go down well with those opposed to his reforming agenda”.
The appointment was announced in a press release from the Department of Further and Higher Education, Research, Innovation and Science in April 2023, headed by then minister Simon Harris. This had “on a number of occasions, including several occasions at board meetings, been described by the chair of SFI as ‘the board being fired by press release’”.
Referred to as “the reporters”, five senior managers made protected disclosures against him in December 2023. Most of them were in the executive management team and had “acted in concert”, said Prof Nolan, who came to widespread public prominence as part of the National Public Health Emergency Team during Covid-19.
An independent probe 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 of undermining corporate governance or that his conduct constituted bullying.
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 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 court heard.
Padraic Lyons SC said his client “emphatically” rejects claims he behaved inappropriately and always wanted a hearing to take place to deal with the matter without recourse to law – and had been open to mediation.
In his affidavit, he said the reporters’ disclosures “represented an orchestrated attempt by them to frustrate and avoid change by securing my dismissal or by making it impossible for the changes to be implemented”.
Fast forward to last Monday night. After 9pm Prof Nolan received an email confirming he had been dismissed following a board meeting earlier that day. As a board member, he had received no notice of it taking place. It was due to discuss the findings of the investigation.
The PDG report “clearly and unambiguously anticipates that if anything is to happen it is to happen by way of a process”, his lawyer submitted. However, he said, the board, having received it, did a “volte-face” and took a “most unprecedented course of action that was extremely damaging to Prof Nolan”.
Mr Justice Rory Mulcahy later quoted from the letter, before granting the ex-parte injunction by issuing orders preventing SFI from dismissing Prof Nolan, from treating him as having been dismissed or from appointing anyone else to the position.
In effect, the board had bypassed fair procedures on the basis it had found there had been a “loss of trust” and a breakdown in relations between the director general and SFI executive committee, which was “a threat to its statutory responsibilities” and good governance – and on that basis it had agreed this was the correct course to take.
He noted that in SFI’s own disciplinary process submitted to the court there would be a hearing in all cases of misconduct.
The judge said he was satisfied Prof Nolan made out a strong case that is likely to succeed at trial such that he should make orders preventing his dismissal until the matter returns on Friday afternoon. SFI was not in court when the application was heard but will be notified and can respond to the claims then.
The court heard throughout all his time in public service, including 10 years are president of Maynooth University, Prof Nolan had never before been the subject of workplace complaints.
SFI effectively decided that the very making of allegations was sufficient to terminate his employment, Mr Lyons said. His client had been deprived of the chance to be heard on key matters, and if things were allowed to stand his reputation would be “irredeemably” tarnished.
When details of the misconduct emerged earlier this month, SFI said it had taken the investigation very seriously and was committed to the importance of a “fair, thorough and robust process”.
A spokesperson for Patrick O’Donovan, Mr Harris’s successor as Minister for Further and Higher Education, declined to comment on whether Prof Nolan was still “CEO designate” of Research Ireland.
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