Dismissal of academic dismissed for potential departure without fair warning procedures under Universities Act 1997.

THE SUPREME COURT

Record No. 073/2007

Denham J.

Geoghegan J.

Macken J.

BETWEEN/

PAUL CAHILL

Plaintiff/Respondent

and

DUBLIN CITY UNIVERSITY

Defendant/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 9th day of December 2009

The plaintiff/respondent in this appeal held the post of Associate Professor in the School of Biotechnology, Dublin City

University. That university is the defendant/appellant.

The appellant purported to dismiss the respondent from his post. The respondent instituted High Court litigation claiming

that by virtue of “tenure” which he held and the general terms of employment which he alleged were in part governed by

the Universities Act, 1997 the purported dismissal was invalid. On three alternative grounds, the learned High Court judge

(Clarke J.) held with the respondent. The appellant has now appealed.

The circumstances giving rise to the alleged dismissal in this case were unusual. Without going into the detail which is well

set out in the High Court judgment, what broadly happened was as follows: On the 10th March, 2006, the appellant had a

meeting with Professor Von Prondzynski, the President of the DCU. Whilst there is some disagreement as to the contents

of the discussions, it is clear that the respondent informed the President that there was an offer on foot from NUI Galway

for the respondent to move to Galway and take up the chair of Molecular Medicine with NUIG. The offer also involved the

respondent taking his research team with him, the two researchers be appointed to appropriate posts in NUIG if the offer

was accepted. The respondent’s case was that he had informed the President of all of this as a matter of courtesy and

with a view to ascertaining whether there might be an improved offer to him from DCU in the light of his proposed move.

He consistently denied that he informed or indicated to the President that his departure from DCU was a certainty. This

aspect of the discussions is disputed by the President who, in evidence, claimed that he had been left with the clear

impression at the meeting that there was no doubt whatsoever about the respondent leaving DCU and moving to Galway.

It was common case however at the High Court hearing that the respondent never tendered a formal resignation. In fact

it was common case that if his employment had terminated it was by virtue of a dismissal. I will be explaining the context

in which this arose.

In the months following that discussion, the respondent never indicated the date of his proposed departure despite

constant requests to him to do so. Unsurprisingly, this exasperated the appellant. Obviously, the appellant would require

reasonable notice of when the respondent was leaving so as to provide time for new arrangements be put in place. The

full details of the communications between the university and the respondent are to be found in the judgment of the High

Court. For the purposes of the appeal, it is sufficient to say that correspondence was entered into with the respondent

by the university’s Director of Human Resources on behalf of the President. Some of that correspondence was not

consistent with the later concession that the respondent had never made a formal resignation. Matters came to a head

when after pressure being exerted over a long period, the respondent would not name a date for departure. The appellant

decided that the only course open to it was to dismiss the respondent.

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. I find myself in agreement with the

learned High Court judge that the respondent as an officer of the university and under the terms of the Universities Act,

1997 and the appellant’s own statutes, the respondent was entitled to fair procedures before he could lawfully be

dismissed. In the context of this particular case, that meant, quite simply, that the respondent had to be given a final

warning, that in accordance with the terms of the contract which he had entered into with the university (and to which I

will be referring), it was proposed to serve notice of termination of his employment and then had to be given an

opportunity to make submissions to the appellant as to why that should not be done. No such opportunity was afforded

to him and for reasons which I will elaborate on somewhat more fully, I am satisfied that in the absence of such fair

procedures the termination was not valid. As to what relief should be granted to the respondent in those circumstances is

quite another matter and I will deal with it towards the end of this judgment.

The respondent was successful in the High Court on three alternative grounds, as is perfectly clear from the “Conclusion”

paragraph of the learned High Court judge’s reserved judgment. The relevant extract reads as follows:-

“Therefore, for the reasons which I have indicated earlier, I was satisfied that the purported termination of

Professor Cahill’s employment was invalid principally because it did not occur following appropriate procedures

specified in the university statute so as to comply with s. 25(6) or alternatively by virtue of the reasons identified

concerning the meaning of the word ‘tenure’ or, as a further alternative on the procedural grounds which I have

also addressed.”

That third ground is explained in an earlier part of the judgment in paragraph 7.6 which reads as follows:

“In those circumstances it does seem to me that, even if I am wrong concerning the contractual/statutory basis

for Professor Cahill holding office, he would also be entitled to a determination from this court to the effect that

his contract of employment was not validly determined on the basis of a failure to at least give him some

opportunity to make representations as to why his contract of employment should not have been determined.”

In concluding that the appeal should be dismissed, I am basing my judgment only this last ground. This does not mean

that I am necessarily agreeing or disagreeing with the two other grounds put forward by Clarke J. Travel down that road

would involve, in my view, a detailed analysis of the exact meaning and ramifications of section 25(6) of the Universities

Act, 1997. That subsection reads as follows:

“A university may suspend or dismiss any employee but only in accordance with procedures, and subject to any

conditions, specified in a statute made following consultation through normal industrial relation structures

operating in the university with recognised staff associations or trade unions, which procedures or conditions may

provide for the delegation of powers relating to suspension or dismissal to the Chief Officer and shall provide for

the tenure of officers.”

It is self-evident from the citation that that is not a simple task and given the unusual circumstances in which dismissal

arose in this particular case, it is not advisable unless it was absolutely necessary that I should attempt to give a precise

meaning to that subsection. Furthermore, any such analysis would lead to a judgment as to meaning of “tenure”. This

was debated at the hearing of the appeal. I am satisfied that the word “tenure” has different meanings and different

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. “Tenure” has a very definite meaning in the USA. It more or less equates with

permanency in a university post and it is widely sought after. The same word does not necessarily, however, have that

meaning in this jurisdiction. It can have different meanings, one of them being merely the period of time for which the

office can be held or the method of calculating that period. These kinds of problems would usually arise in a case of some

alleged misbehaviour on the part of a professor or a lecturer in the way he or she carried out his or her duties. This is not

such a case and unless it was absolutely necessary to do so, I do not think it desirable to go beyond the general right to

fair procedures which is required, for reasons which I will explain, prior to a purported termination of the contract of

employment.

The contract of employment arises in the following circumstances.

Section 25(3) of the Universities Act, 1997 provides as follows:-

“Except as otherwise provided by this section, the employees of a university shall be employed on such terms and

conditions as the university from time to time determines”.

As I have already indicated, subsection (6) of that section qualifies the complete freedom of the university to impose its

own terms and conditions.

The respondent was appointed to his post with the appellant by a letter of appointment of the 24th July, 2001. That

letter contained (inter alia) the following sentence:

“The main terms and conditions of your employment are set out in the attached Statement of Terms and

Conditions of Employment which is given to you for record purposes and in compliance with the Terms of

Employment Information Act, 1994.”

Paragraph 14 of that Statement of Terms and Conditions of Employment contains the following provisions:-

“14.1 Your contract of employment will be terminable by yourself on giving the university not less than one

academic term’s notice in writing, and by the university on giving you the higher of

14.1.1 Three month’s notice; or

14.1.2 One week’s written notice for each complete year of service up to a maximum of twelve week’s

written notice.

14.2 The university reserves the right to terminate your contract without notice if it has reasonable grounds to

believe you are guilty of gross conduct or gross negligence.”

The rest of the paragraph is not relevant. Section 33 of the Universities Act, 1997 empowers the university to make

statutes and regulations “as it considers appropriate to regulate the affairs of the university”. In pursuance of this

power, the governing authority of the appellant made Statute No. 3 of 2001 which is headed “Suspension and Dismissal of

Employees”. Paragraph 1 of this statute provides that it shall apply “to all employees and officers of the university.” The

same paragraph contains the following provision:-

“The procedures set out in this statute shall not apply to dismissals by reason of a redundancy which may be

effected by decision of the President of the University following consultation through normal industrial relations

structures operating in the university with recognised staff associations or trade unions, as appropriate.”

It is implicit in that provision that the procedures “set out in this statute” are to apply to all other kinds of dismissal. The

procedures that are specified in the statute for the most part relate to allegations of misconduct and they cannot be

expressly construed as applying to the facts of this case. But it seems clear both from the Act and the statute and at

any rate from the fact that the appellant was clearly an officer of the university, that an obligation to afford him fair

procedures before dismissal must be implied. The fair procedure that was required here was a warning that a notice of

termination would follow if within a specified reasonable period the appellant did not clarify his position as to whether or

when he was leaving the university. That 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.

Not only did time elapse between the purported termination and the hearing in the High Court but almost three further

years have elapsed since the High Court hearing. In accordance with well established principles neither the High Court nor

this court can permit an injunction to be made against the appellant which is wholly impracticable or cannot properly be

supervised by the court. In my view, the appeal should be dismissed but no final decision should be made as to the form

of order without a further hearing preceded by written submissions from both parties as to the form of order and any relief

to be granted.

There is one other matter which I should mention. I have not thought it necessary to refer to case law. As in so many

employment cases, previous court decisions are not of much assistance. I say this with particular regard to Fanning v.

UCC [2008] IESC 59 (28th October, 2008) unreported judgment of the Supreme Court (the High Court judgment by

Gilligan J. having been referred to in this case) and R v. Hull University Visitor [1991] 1 WLR 1277. Neither of these

cases seem to me to be directly in point.