Cahill v Dublin City University

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 09 December 2009
• Neutral Citation: [2009] IESC 80
• Court: Supreme Court
• Date: 09 December 2009

[2009] IESC 80

THE SUPREME COURT

Denham J.

Geoghegan J.

Macken J.

Record No. 073/2007

Cahill v Dublin City University

[2009] IESC 80

BETWEEN/

PAUL CAHILL

Plaintiff/Respondent

and

DUBLIN CITY UNIVERSITY

Defendant/Appellant

UNIVERSITIES ACT 1997 S25(6)

UNIVERSITIES ACT 1997 S25(3)

UNIVERSITIES ACT 1997 S33

FANNING v UNIVERSITY COLLEGE CORK UNREP SUPREME 28.10.2008 2008/23/5038 2008 IESC 59

R v HULL UNIVERSITY VISITOR, EX PARTE PAGE 1991 1 WLR 1277 1991 4 AER 747

EMPLOYMENT

Dismissal

University professor - Whether purported dismissal invalid - Tenure - Terms of employment - Job offer from university - Discussions with university regarding proposed departure - Absence of formal resignation - Failure to indicate date of departure - Correspondence seeking date of departure - Dismissal of employee - Entitlement to fair procedures - Necessity for final warning regarding proposed notice of termination - Opportunity to make submissions - Whether termination invalid - Meaning of âÇÿtenure' - Contract of employment - Statutory provisions - Elapsing of time - Impracticability of injunctive relief - Fanning v UCC [2008] IESC (Unrep, SC, 28/10/2008) and R v Hull University Visitor [1991] 1 WLR 1277 distinguished - Universities Act 1997 (No 24), ss 25 and 33 - Appeal dismissed with further hearing scheduled for submissions regarding form of order (73/2007 - Supreme Court - 9/12/2009) [2009] IESC 80

Cahill v Dublin City University

Facts The respondent previously held the post of Associate Professor in the School of Biotechnology at the appellant University. Following discussions with representatives from another University, the respondent informed the President of DCU that there was an offer of employment with that other University. Subsequently, the appellant dismissed the respondent from his employment. The respondent successfully brought proceedings before the High Court contending that the purported termination of his contract of employment was invalid by virtue of 'tenure' which he held and the general terms of employment which he alleged were governed by the Universities Act 1997 and furthermore was invalid due to the fact that the notice of termination was served in breach of fair procedures. The appellant appealed against that decision.

Held by Supreme Court, Geoghegan J. ( Denham, Macken JJ concurring) in dismissing the appeal and affirming the order of the High Court: 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 be lawfully dismissed. In the context of this case and having regard to the appellant's Statement of Terms and Conditions of Employment and Statute No. 3 of 2001, that meant, that the respondent had to be given a final warning and an opportunity to make submissions regarding any proposed notice of termination. The respondent was not afforded that opportunity and consequently, in the absence of fair procedures, the termination was invalid. However, 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 the order and any relief to be granted.

Reporter: L.O'S.

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

2 Judgement delivered by Geoghegan J. [nemdiss]

3 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.

4 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, 1997the purported dismissal was invalid. On three alternative grounds, the learned High Court judge (Clarke J.) held with the respondent. The appellant has now appealed.

5 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 10 ^th 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.

6 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...