Professor's purported dismissal from DCU did not observe fair procedures
Cahill -v- DCU
Judgment was delivered by Mr Justice Hugh Geoghegan on December 9th, 2009, with Mrs Justice Susan Denham and Ms Justice Fidelma Macken concurring.
The court affirmed the High Court judgment finding that the appellant, Dublin City University, had not applied fair procedures in purporting to dismiss the respondent, Prof Paul Cahill.
Prof Cahill is associate professor of biotechnology in Dublin City University.
On March 10th, 2006, he had a meeting with the president of the university, Prof Ferdinand Von Prondzynski, when he told him he had an offer of a position as chair of molecular medicine in NUI Galway.
The offer involved him taking his research team with him.
His case was that this conversation was as a matter of courtesy and in order to establish whether there might be an improved offer to him from DCU.
He denied that he had informed the president that his departure from DCU was a certainty.
Prof Von Prondzynksi claimed that he had been left with the clear impression that there was no doubt that Prof Cahill was going to NUI Galway, though he agreed he did not tender a formal resignation.
In the following months, Prof Cahill gave no indication as to his intended departure date, despite repeated requests to do so, as the university required reasonable notice in order to make new arrangements.
After pressure over a long period, Prof Cahill would still not name a date for departure and the university concluded the only course open to it was to dismiss him, which it purported to do.
Prof Cahill challenged this decision in the High Court, which found that the purported dismissal had been unlawful as it did not comply with fair procedures.
Mr Justice Geoghegan said: “I think it only fair to say that a decision by the university to bring matters finally to a head in such a way that it knew exactly where it stood as to what [if any] new arrangements had to be put in place was more than reasonable.
“Nevertheless, whatever course the appellant took towards that end had to be lawful.”
He found himself in agreement with the High Court that, under the terms of the Universities Act 1997 and the university’s own statutes, the respondent was entitled to fair procedures before he could lawfully be dismissed.
These would have entailed giving Prof Cahill a final warning that, in accordance with the terms of the contract into which he had entered, it was proposed to serve notice of termination of his employment.
He should have then been given an opportunity to make a submission as to why this should not be done.
No such opportunity was afforded to him, therefore the termination was not valid.
He recalled that High Court judge Mr Justice Frank Clarke had found for the respondent on three grounds, but said he was refusing the appeal only on one, that the respondent had not been given an opportunity to make representations as to why his contract should not be terminated.
He said he was not entering into discussion of the other two grounds, as this would have required analysis of section 25(6) of the Universities Act 1997, dealing with the dismissal of employees by universities.
Given the unusual circumstances of this case, it was not advisable that the court should give a precise meaning to that subsection, Mr Justice Geoghegan said.
“Furthermore, any such analysis would lead to a judgment as to the meaning of the word ‘tenure’,” he added. “I am satisfied that the word ‘tenure’ has different meanings and connotations partly depending on its context and partly depending on the particular understanding as usually given to it within the country in which it is used.”
He added that it did not necessarily have the same meaning in this jurisdiction as it did in the US, where it meant permanency in a university post.
He said it was clear from both the Universities Act and the university statutes that the appellant was an officer of the university and was obliged to afford fair procedures before making a dismissal, which was not done.
“That failure is sufficient to determine the case in favour of the respondent, but it must be said that his position is less than fully meritorious,” Mr Justice Geoghegan added.
Referring to the order to be made following the finding, he pointed out that time had elapsed between the purported termination and the High Court hearing and almost a further three years since the High Court hearing.
The court could not permit an injunction to be made which is wholly impracticable, so no final decision should be made as to the form or order without a further hearing preceded by written submissions.
The full judgment is on www.courts.ie
Paul Sreenan SC and Tom Mallon BL, instructed by Arthur Cox, for the appellant; Gerard Hogan SC and Peter Ward SC, instructed by Sheridan Quinn, for the respondent.
* This article was amended on September 3rd, 2010