Cahill v Dublin City University

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 09 February 2007
• Neutral Citation: [2007] IEHC 20
• Court: High Court
• Docket Number: [No. 3378P/2006]
• Date: 09 February 2007

CAHILL v DUBLIN CITY UNIVERSITY

BETWEEN

PAUL CAHILL

PLAINTIFF

AND

DUBLIN CITY UNIVERSITY

DEFENDANT

[2007] IEHC 20

[No. 3378P/2006]

THE HIGH COURT

EMPLOYMENT

Dismissal

University - Tenure of officers - Statutory interpretation - Fair procedures - Audi alteram partem - Extent of obligation - Fanning v University College Cork [2005] IEHC 264 (Unrep, Gilligan J, 24/6/2005) distinguished - Universities Act 1997 (No 24), s 25 - Relief granted (2006/3378P - Clarke J - 9/2/2007) [2007] IEHC 20

Cahill v Dublin City University

The plaintiff was previously employed by the defendant as Associate Professor in the School of Biotechnology. Following discussions with representatives from another University, the plaintiff informed the President of DCU that he would probably take up employment with that other University. Subsequently, the plaintiff received three months notice of the termination of his employment. The plaintiff contended that the termination of his contract of employment was invalid having regard to certain provisions of the Universities Act 1997 and furthermore was invalid due to the fact that the notice of termination was served in breach of fair procedures.

Held by Clarke J. in allowing the claim: That the plaintiff was a permanent fulltime member of the academic staff of the defendant and therefore was an officer to whom the provisions of section 25(6) of the 1997 Act applied. The dismissal of the plaintiff did not occur in accordance with procedures specified in the statute enacted by the defendant and therefore was in breach of the provisions of section 25(6). Furthermore, the purported specification by the defendant in that statute of tenure was an invalid exercise of the entitlement of the defendant to specify tenure. Furthermore, the termination of the plaintiff’s contract was in breach of fair procedures as he was not given any notice of the defendant’s intention to terminate his contract. Consequently, the defendant was obliged to take reasonable steps to ensure that appropriate academic duties were given to the plaintiff.

Reporter: L.O’S.

UNIVERSITIES ACT 1997

UNIVERSITIES ACT 1997 S25

UNIVERSITIES ACT 1997 S25

UNIVERSITIES ACT 1997 S14

UNIVERSITIES ACT 1997 S25(6)

UNIVERSITIES ACT 1997 S25(3)

UNIVERSITIES ACT 1997 S25(4)

UNIVERSITIES ACT 1997 S25(5)

UNIVERSITIES ACT 1997 S25(8)

UNIVERSITIES ACT 1997 S25(7)

UNIVERSITIES ACT 1997 S25(2)

UNIVERSITIES ACT 1997 S25(1)

OXFORD ENGLISH DICTIONARY "TENURE"

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

R v LORD PRESIDENT OF THE PRIVY COUNCIL, EX PARTE PAGE ON APPEAL FROM R v HULL UNIVERSITY VISITOR, EX PARTE PAGE 1993 AC 682

FANNING v UNIVERSITY COLLEGE CORK UNREP GILLIGAN 24.6.2005 2005/24/5042 2005 IEHC 264

DUBLIN CITY UNIVERSITY STATUTE NO3

UNIVERSITIES ACT 1997 S33

CIVIL SERVICE REGULATION ACT 1956 S5

UNIVERSITIES ACT 1997 S12

UNIVERSITIES ACT 1997 S13

GARVEY v IRELAND & ORS 1981 IR 75

WALSH v DUBLIN HEALTH AUTHORITY 1964 98 ILTR 82

FENNELLY v ASSICURAZIONI GENERALI SPA 1985 3 ILTR 73

Mr. Justice Clarke

1 2 1.1 The plaintiff ("Professor Cahill") held, at all relevant times, the post of Associate Professor in the School of Biotechnology of the defendant university ("DCU") and was also Director of the Vascular Health Research Centre of the Faculty of Science and Health of DCU. Professor Cahill has had a distinguished academic career in the United States during the 1990s, culminating in the holding of Associate Professorships at Georgetown University Medical Centre and a Professorship at University of Rochester Medical Centre. As of the 1st October, 1999 Professor Cahill was appointed to DCU, initially as a senior lecturer, and later to the position of Associate Professor in 2001.

2 3 1.2 It is common case that in early months of 2006 Professor Cahill was engaged in discussions with representatives of the National University of Ireland Galway ("NUIG") with a view to exploring the possibility of Professor Cahill, together with his research team, moving to NUIG with Professor Cahill taking up the position of Chair of Molecular Medicine in that University. While there are some disputes as to the precise content of a discussion which took place between Professor Cahill and the President of DCU, Professor Ferdinand Von Prondzynski, it is common case that, at a meeting in early March 2006, Professor Cahill, at a minimum, informed Professor Von Prondzynski of the high probability that he would move to NUIG. In that context matters dragged on for a number of months with DCU pressing Professor Cahill for a definite date for his departure but Professor Cahill indicating that he was not yet in a position to resign in a formal manner. Against that background Professor Cahill received a letter on 14th June, 2006 from Marian Burns, the Director of Human Resources at DCU, which purported to give Professor Cahill three months notice of termination of his employment, as a result of which it was stated that his employment would end on 10th September, 2006. The decision was stated to be that of the President of DCU Professor Von Prondzynski.

3 4 1.3 Professor Cahill contests the validity of the termination of his contract in that manner. It is accepted by both sides that the terms of the relevant contract of employment provides for termination on three months notice. However, Professor Cahill contends that the termination of his employment is either:-

4 (a) invalid having regard to certain provisions of the Universities Act1997 ("the 1997 Act"); or

5 (b) is invalid in circumstances where it is alleged that the notice of termination was served in breach of fair procedures.

6 2 2.1 Professor Cahill initially sought a number of interlocutory injunctions restraining DCU from treating him as having been dismissed and, furthermore, from interfering with the performance by Professor Cahill of his duties and responsibilities as Associate Professor. That application first came before the court on 31st July, 2006 when it was, by consent, adjourned to the 13th September, 2006. At that time, in accordance with the notice of termination, if valid, Professor Cahill's employment was due to terminate on the 13th September, 2006. When the case came back before the court on that date it was agreed between the parties that the interlocutory hearing should be adjourned until 13th October, 2006 and also that the substantive case be listed for mention on 2nd October, 2006 for the purposes of seeking an early trial of the full action. On that basis DCU agreed, without prejudice, to treat Professor Cahill as continuing in employment until 16th October, 2006. The process of seeking an early date for the trial of the full action continued at a pace but such a date had not been fixed as of the 16th October.

7 3 2.2 The interlocutory application came before me on that date. There was a measure of agreement between the parties subject to one matter. At the hearing before me on 16th October, DCU indicated that it was prepared to continue, until a trial which was then anticipated to be likely to occur in relatively early course, its agreement to the effect that it would continue to pay Professor Cahill's salary pending that trial. The issue between the parties at the interlocutory hearing was as to whether Professor Cahill was also entitled to an interlocutory order which would allow him to continue to perform his duties pending trial. Having heard argument and submissions on both sides I reserved judgment until the following day (17th October, 2006).

8 4 2.3 In a brief ruling delivered on 17th October I indicated that I was prepared to make that further order as sought by Professor Cahill and further indicated that I would, at a later date, give more detailed reasons for making such an order. Events were overtaken by the need to apply court time to the necessary case management measures required to ensure an early trial of the full issues between the parties. The full trial was heard before me between 13th and 21st December, 2006.

9 5 2.4 Thereafter I delivered a brief judgment on 23rd January, in which I indicated the principal conclusions which I had reached and further indicated that I proposed finding:-

10 (a) that the purported dismissal of Professor Cahill was contrary to the provisions of the 1997 Act and therefore invalid; and

11 (b) that I was not satisfied, at that stage, that it would be appropriate to make any mandatory order which would direct the duties which Professor Cahill was to carry out in the light of the finding at (a) above.

12 6 2.5 I also gave some brief indication of the principal conclusions which lead to my forming a view as to those two findings. I further indicated to the parties that I would, in early course, deliver full reasons for so finding.

13 7 2.6 In this judgment I set out those reasons. I also propose to set out in more detail the reasons for coming to the conclusions which I did, in respect of the interlocutory application.

14 8 2.7 While there are a small number of factual matters which are either in dispute or, at least, are the subject of differing suggestions as to how they should be construed, the principal basis upon which the case was argued on behalf of Professor Cahill concerned the contention that a dismissal in the manner effected by the President of DCU was not permitted having regard to the provisions of the Universities Act1997. I will return, in the course of this judgment, to the areas of fact upon which the parties have differing positions. However it seems to me that the key issue for resolution concerns the proper interpretation of the 1997 Act and I therefore first turn to that question.

1997

15 2 3.1 The 1997 Act introduced a range of measures which govern aspects of the manner in which universities operate in Ireland. DCU is a...