The High Court has been told the Director General of Science Foundation Ireland was dismissed from his post because he had “lost the dressing room” and it would be unworkable for him to return.
Lawyers for SFI said Professor Philip Nolan’s contract was terminated because the situation of “discord” between him and senior managers meant the operation of the foundation was dysfunctional and could not be allowed to continue for any longer.
Senior Counsel Mark Connaughton was making submissions to the court in an action by Prof Nolan aimed at preventing his dismissal from his position.
On 30 May last the court granted temporary orders preventing SFI from dismissing Prof Nolan three days after he had had been notified in an email on 27 May that he was being dismissed from his role.
Those orders were today continued and a decision in the case next week.
Prof Nolan’s lawyers say he was dismissed without any disciplinary hearing or opportunity for him to deal with allegations made against him.
The court has heard complaints were made by five people in late December 2023.
An investigation by senior counsel found there had been no breaches of corporate governance and no bullying but concluded Prof Nolan had a case to answer that there had been “inappropriate behaviour” falling short of bullying and a disciplinary process would be required to consider these allegations.
Responding to submissions at the opening of the case this morning, Mr Connaughton said the board of Science Foundation Ireland was “absolutely legally entitled” to say it was not proceeding down the path of a disciplinary process if it would be too harmful to the organisation.
He said the effective operation of the organisation had become so dysfunctional the situation could not be allowed to continue.
“The Director General was the star of the show, the top of the pile, he had lost the dressing room plain and simple,” he said.
He acknowledged there had been “completely unauthorised and improper disclosure of confidential information” to the media shortly before Prof Nolan’s dismissal but said SFI could not be held responsible in law for those “horrible events”.
He said the disclosure of the material was under investigation and to date no internal source had been identified.
Return to SFI ‘unworkable’
Restraining his termination and putting him back into his position was not the appropriate course of action, Mr Connaughton said adding that his return to the organisation would be “unworkable”.
He said Prof Nolan had the option to take an action for unfair dismissal which was the proper course of action.
Unlike others, he had other positions he could return to and was “not out on the street,” he said.
Referring to a submission by Prof Nolan’s barrister that the origin of the difficulties was the board’s overreaction to a letter sent by Prof Nolan in 2022, Mr Connaughton said the board was comprised of highly qualified experienced people of great calibre which requires exacting standards.
The contention by Prof Nolan that matters identified in the investigation of this year could have been sorted out by mediation and that it was “low level” was countered by sworn statements from the chair of SFI who had responded by saying it was far more serious and had provided great detail of how SFI was “heading in a direction of being completely dysfunctional”, according to Mr Connaughton.
In the sworn statement he also expressed surprise that Prof Nolan had on his return to work after a period of sick leave and following the investigation had not acknowledged the other findings of the report and this had drawn a very significant reaction from people directly affected.
“The board took the view that things had just gone too far…he did not have the leadership team with him and in that regard and as a matter of corporate governance that entitles a board to say it may not be you, it may be us, but your position cannot be maintained,” Mr Connaughton said.
‘Inflection point’
However lawyers for Prof Nolan had earlier told the court there were compelling reasons to extend orders preventing his dismissal from his role.
Opening the case today Senior Counsel Padraic Lyons told the court the “historic origin” of some of the discontent related to a letter sent by Professor Nolan in February 2022 shortly after his appointment expressing disappointment that the board had refused him permission to take up a role as chair of St James’ Hospital.
In the letter Prof Nolan said the decision was “profoundly disappointing” and “raises concerns about the position and disposition of the board” on which he would reflect.
Mr Lyons said Prof Nolan had subsequently apologised for sending the letter but the board had “overreacted”.
He said minutes of a board meeting noted that board members expressed shock at the letter suggesting it called into question its bona fides and showed a lack of respect.
Some board members suggested it would be grounds for termination of a chief executive officer in the private sector.
Mr Lyons said the response of the board was an “extreme reaction” which resulted in members openly discussing the proposition that in another context this might lead to termination.
Mr Lyons said this reaction from the board to the sending of the letter was “an inflection point” which seemed to initiate a decision to put in place a performance plan in October 2022.
Mr Lyons said an investigation this year into allegations made against Prof Nolan did not uphold any allegations of bullying or misconduct but found he had a case to answer in relation to what could have been inappropriate behaviour in his interactions with others.
Mr Lyons said the investigation found that Prof Nolan could have engaged in a more collaborative way but “that was the height of it”.
He said it would have been open to the board to determine a course of action or mediation but it could not “jump past” the process to which Prof Nolan was entitled and “simply guillotine all of that” by summary dismissal.
‘Where allegations have been made they can’t be unmade’
The findings of the inquiry could never give rise to someone’s dismissal but the board had however “arrived at the conclusion that this had all created terrible discord and you are to be sacked thereby attributing blame in the context where the media attention would lead one to believe that he had been engaged in terrible behaviour”.
He referred to media reports the day after Prof Nolan’s dismissal linking it to the fallout from bullying allegations.
“A person’s right to reputation is such that where allegations have been made they can’t be unmade,” Mr Lyons added.
“Where they have been publicly made they can’t be unmade.”
He said the reason for the dismissal was clearly linked to the findings of the inquiry despite the foundation stating it was because it was not functioning properly and the situation had worsened and become “dire”.
He said there was never any recording of dysfunction and no credible evidence to support this statement.
Prof Nolan had attended the workplace and fulfilled his role during the investigation, he said.
The court was told that during this time measures were put in place including the presence of an independent observer at meetings.
He had been out sick for a period of four weeks and then “great emphasis” was placed on an email he sent before his return to work.
Issue had been taken with the fact that he had said in the email that allegations had not been upheld, the court was told.
Mr Justice Rory Mulcahy will give his decision on Friday week.
