The Minister for Research, Innovation and Science intervened in a dispute between Science Foundation Ireland (SFI) and Prof Philip Nolan to suggest they could mediate outstanding issues, the High Court has heard.
Senior counsel for Prof Nolan, who is seeking an extension of orders preventing his dismissal, said it was “striking” that there was a “blanket refusal” from the State-funded research agency in response to his client’s repeated offers to engage in mediation.
Padraic Lyons told the court on Tuesday that in late April a representative for Minister Patrick O’Donovan wrote to SFI noting that an independent barrister’s investigation into claims against Prof Nolan by five senior staff members made no findings of bullying or breaches of corporate governance.
The secretary general of the department, writing on behalf of the new Minister in response to earlier correspondence from SFI, said it would be in the “best interests” of the research agency to resolve matters promptly and that mediation could be an approach to take, the court heard.
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Still to be considered by SFI was the investigation report’s conclusion that Prof Nolan engaged in inappropriate behaviour that could ground allegations of gross misconduct. Prof Nolan emphatically rejects the charge.
Mr Lyons, instructed by Daniel Spring & Co Solicitors, said the SFI board gave a “thin-skinned” response to the Minister’s letter, saying it was surprised he would suggest mediation before a disciplinary process into the outstanding claims was initiated. This reply indicated that there would be a disciplinary process, said Mr Lyons, but the SFI board went on to summarily dismiss his client last May 27th without any such process, which would have allowed his client to defend himself.
It is “untenable” for SFI to now contend it dismissed Prof Nolan not for misconduct reasons but because it was exercising its contractual right to dismiss.
Prof Nolan is asking Mr Justice Rory Mulcahy to extend orders he made in recent weeks preventing his dismissal from his director general role. His lawyers argue there was “no conceivable justification” for the move.
The judge said he would rule on the matter by the end of next week.
Responding to the application, senior counsel Mark Connaughton said that as director general Prof Nolan was the star of the show but he “lost the dressingroom, plain and simple”. The organisation was not functioning normally and in a private company this situation would fall on the head of the chief executive, he said.
He rebuffed any suggestion the SFI board acted otherwise than in the best interests of the organisation. This is a “highly qualified, highly experienced board of great calibre” that takes its responsibilities very seriously, added counsel, instructed by McCann Fitzgerald solicitors.
While Prof Nolan’s legal team argued the board overreacted to a critical letter he wrote in February 2022, which he regrets and apologised for, Mr Connaughton said the reaction demonstrates this board requires “exacting standards”.
He said internal investigations are under way to determine the source of the “completely unauthorised and improper” disclosure of “highly confidential material” to the media. While the plaintiff says he has suffered reputational harm due to the release of information about the investigation, SFI cannot be held legally responsible for the fact these “horrible events occurred”, added Mr Connaughton, appearing with Shelley Horan.
He said Prof Nolan’s case fails to acknowledge other findings in the barrister’s report. His push for mediation under these circumstances demonstrates a “certain lack of insight”, the court heard.
There is also a “fundamental difference” between the parties regarding the legalities at play, counsel added.
In an affidavit to the court, the SFI board’s chair, Prof James Peter Clinch, said the board was supportive of Prof Nolan when he assumed his role but he “struggled” in the first few months.
He said the board noticed a “clear trend” that the director general “struggled with his emotions when challenged or when he did not get his way”. He said the board felt there was a lack of respect in Prof Nolan’s letter of February 2022, which raised “concerns” about the “position and disposition of the board” due to it having refused to sanction his outside role on a hospital board.
He said there was a “dire” situation and a level of dysfunction developing at SFI due to the apparent breakdown of trust between Prof Nolan, senior management and beyond.
In a letter dismissing Prof Nolan on May 27th, Prof Clinch noted an internal group’s report recommended the invocation of disciplinary procedures against Prof Nolan regarding instances of inappropriate behaviour cited in the barrister’s investigation.
He said he board had to consider whether it was in SFI’s best interests to “prolong this matter and the discord it has produced, including the loss of trust at the executive level that is a clear threat to the ability of the foundation to meet its statutory function”.
Prof Clinch said it had been decided it was “neither in the foundation’s interests nor yours to initiate a disciplinary process” and the board “cannot allow the situation to continue”.
He noted Prof Nolan rejects certain findings of the report but said the board has decided terminating his contract is the “correct course”.
Prof Nolan came to public prominence during the pandemic while leading the National Public Health Emergency Team’s (Nphet’s) epidemiological modelling group. He is a former president of Maynooth University.
Prof Nolan, who assumed the director general role in January 2022, argues the claims made against him “without foundation” last December form part of an “orchestrated” bid to frustrate his efforts to substantially reform the organisation.
The Department of Research, Innovation and Science had acknowledged a need for change but, Prof Nolan said, there was “profound resistance” to this aim from the senior management team. He believes most of SFI’s 120 staff members are in favour of reform.
He was appointed CEO-designate of Research Ireland – a planned merger of SFI and the Irish Research Council – in a move he says amounted to an endorsement by the Government of his leadership and strategy.
He believes he can continue to perform his role to the benefit of SFI and Research Ireland if he has the correct support. He noted the SFI board is soon to be dissolved and said the organisation and the research community it serves will be “seriously disadvantaged” if the amalgamation is delayed or halted due to SFI actions.
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