The Court of Appeal has dismissed an application from Prof Philip Nolan asking to maintain his employment status with Science Foundation Ireland (SFI) pending determination of his appeal of what he claims is a “fundamentally incorrect” High Court decision.
His legal team did not push for him to return to his day-to-day functions as director general of the research agency but requested that he would not be treated as dismissed for the purpose of protecting him if, ahead of his appeal, SFI is dissolved to make way for a new proposed research body.
Prof Nolan, who is a former member of the National Public Health Emergency Team (Nphet), has been appointed CEO-designate of Taighde Éireann (Research Ireland), which is a Government-proposed merger of SFI and the Irish Research Council.
Padraic Lyons SC argued his client’s employment status must be preserved until the appeal hearing next October as he does not know when SFI will be dissolved to make way for the new body. The court heard this decision will be made by the Minister for Research and Innovation.
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Mr Lyons submitted that a “fundamentally incorrect” higher threshold was applied by the High Court judge who refused to extend an injunction restraining Prof Nolan’s dismissal pending a full trial of his case.
SFI’s senior counsel, Mark Connaughton, with Shelley Horan BL, argued the interim order sought was inappropriate and, crucially, unnecessary. Instructed by McCann Fitzgerald solicitors, Mr Connaughton said it is “clear as night follows day” that Prof Nolan’s position is protected if he wins his overall case.
Mr Justice Charles Meenan said he had “some doubts” about whether Prof Nolan’s October appeal of the injunction refusal is arguable, which is a requirement for granting the order sought. However, he proceeded on the basis that it was arguable.
The next legal test was considering the balance of justice in making or refusing to make the interim appeal order.
The judge held that Prof Nolan’s concern regarding the SFI dissolution was not a reason to grant the order, as, if he is successful in his full High Court claim, his dismissal will be declared null and void and his employment status will be intact.
There was no reality to Prof Nolan carrying out his director general functions on foot of the requested orders, the judge said. He could not see how any potential injustice could be lessened by making the order sought.
This was a preliminary application ahead of Prof Nolan’s appeal of the High Court’s refusal to extend an injunction temporarily preventing his dismissal from SFI. His substantial High Court case is due to be mentioned in court in December.
In his decision last month, Mr Justice Rory Mulcahy said the director general’s contract permitted the SFI board to dismiss “for no reason at all”.
If he was dismissed last May 27th for misconduct he should have got fair procedures, but denies this was the reason, instead maintaining the termination came pursuant to his contract terms.
Mr Justice Mulcahy 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 full trial that this was, in substance, dismissal for misconduct, but the current evidence did not establish this, the judge said.
An inquiry into the December allegations made no findings against the director general but concluded he engaged in inappropriate behaviour and this could ground allegations of gross misconduct. Prof Nolan strongly denies this charge. He argues he should have been permitted to defend himself via a disciplinary process but was instead dismissed.
Giving his ruling on Friday, Mr Justice Meenan said the case presents “a truly unfortunate situation” involving individuals and an organisation who are “highly qualified”.
It is not in dispute that Prof Nolan is a person of eminence in his profession and that the public “had the benefit of that eminence during the dark days of Covid”.
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