Academic's challenge upheld by Supreme Court

 

THE SUPREME Court has upheld a challenge by Prof Connell Fanning, head of the economics department of University College Cork (UCC), to the conduct by the college authorities of an investigation into allegations he grabbed a female member of the college staff by the throat during an incident in the college car park.

The three-judge court yesterday unanimously rejected UCC's appeal against a High Court decision that the disciplinary procedures invoked by it towards Prof Fanning were beyond its powers.

Where a proposed disciplinary action interferes with rights of tenure or conditions of service, Prof Fanning and anyone else appointed prior to the 1997 Universities Act may only be dealt with under pre-1997 statutes, Mr Justice Nicholas Kearns said.

The case arose after UCC sought to suspend Prof Fanning arising from an incident on August 31st, 2001 in a staff car park on the university campus.

Mr Justice Kearns said Prof Fanning was walking his dog in the car park and speaking to his wife on his mobile phone. Joan Buckley, of the university's language department, was leaving in her car when Prof Fanning suddenly gestured to her to stop out of concern she might injure his dog which she had failed to see.

This led to "a fairly heated exchange" between Prof Fanning and Ms Buckley and she alleged Prof Fanning put his hand in the window and grabbed her by her neck, squeezing and shaking her. She alleged she drove off, ultimately causing him to release her. Prof Fanning accepted there was an incident but vehemently denied assaulting Ms Buckley.

Ms Buckley reported the matter to the university's department of human resources but made it clear she wished merely to report it and was not making a complaint as such. However, UCC contended it was obliged to investigate the incident and to suspend Prof Fanning on full pay pending the outcome of its investigation.

Mr Justice Kearns said one would have thought the incident would have been deemed closed after Ms Buckley's solicitor told UCC in October 2001 she was withdrawing her report. It would be "an exercise in unreality" not to acknowledge there was a "significant background of unhappy differences" between Prof Fanning and UCC, he remarked.

The High Court in 2001 restrained Prof Fanning's suspension pending the outcome of his court challenge against UCC. In the High Court in 2005, Mr Justice Paul Gilligan ruled in favour of Prof Fanning and UCC appealed to the Supreme Court.

Giving the Supreme Court judgment, Mr Justice Kearns said Prof Fanning was appointed prior to the Universities Act 1997 and was therefore subject only to a limited disciplinary regime.

As he was appointed under an 1951 NUI statute, he could only be removed from office by the NUI Senate. While UCC could exercise disciplinary jurisdiction over him short of his removal, the 1951 NUI statute regulated conduct only relating to the carrying out of lectures and providing assistance to students. An incident such as allegedly occurred in the car park could not be regulated.

Prior to the enactment of the 1997 Universities Act, UCC had not enacted any statutes or regulations under which it could seek to exercise some other disciplinary jurisdiction over Prof Fanning, Mr Justice Kearns added.

The right of tenure which Prof Fanning enjoyed was of security of office. It entitled him to expect he would remain in office except if the UCC governing body asked the NUI Senate to remove him due to a lapse in good conduct or failure to fulfil his duties.

While the 1997 Act applied to Prof Fanning, the disciplinary procedures enacted by UCC under it which provided for suspension or demotion did not, the judge said. A different situation would apply if Prof Fanning had agreed to the disciplinary procedures invoked but it was never open to UCC to discipline Prof Fanning in the "omnibus manner" suggested.

The judge stressed he was "far from suggesting" that other provisions of the disciplinary procedures did not apply to a pre-Universities Act officer. The system of warnings in the disciplinary procedures seemed "eminently sensible and appropriate" to deal with misconduct which would prompt the invocation of severe disciplinary action against persons appointed before or after the 1997 Act.