A Supreme Court judge said a disciplinary process that led to the dismissal of harbour master Patrick J. Kelly was tainted by objective bias from its outset, citing a minister’s meeting with the investigator and the damaging comments recorded at that meeting.
In a judgment dated 30 March 2021, Mr Justice John MacMenamin agreed that the Court of Appeal’s order on objective bias should be quashed because a minister had attended the Cabinet meeting at which the decision to dismiss Mr Kelly was taken. He went further than the reasoning he described in Ms Justice Dunne’s judgment, concluding that the same objective bias test applied to the earlier stages of the process.
The judgment says the minister complained to a senior department official, Dr Beamish, on 8 October 2004. An email recording their call referred to concerns about harbour management at Killybegs, the alleged employment of Mr Kelly’s brother-in-law without due process, and the CCTV system being switched off.
A week later, the minister met Dr Beamish and investigator Mr Fitzpatrick. Mr MacMenamin said Mr Fitzpatrick’s notes recorded a wider range of complaints, including highly prejudicial comments about Mr Kelly’s character and conduct. The judgment reproduces those notes, which include allegations of bullying, assault and shooting dogs. These were recorded comments and allegations, not findings of the Court.
Mr MacMenamin said the meeting was unnecessary and that the complaints could have been passed to the investigator without a personal meeting. He considered the investigator’s role central: under the disciplinary procedure, Mr Fitzpatrick both investigated and decided whether allegations were substantiated, and recommended sanctions. The appeal board’s review was limited and was not a fresh hearing of the case.
The judge said the objective test did not turn on whether the investigator was actually influenced by the meeting or whether some complaints were later rejected or found irrelevant. He also noted that the meeting was not disclosed to Mr Kelly during the investigator’s process. According to the judgment, the meeting notes were disclosed over time, with a full typed version provided in July 2011.
Applying what he described as a cumulative test to the beginning and end of the process, Mr MacMenamin concluded that the entire disciplinary process leading to dismissal was tainted by objective bias. The supplied excerpt contains his separate judgment and conclusion; it does not state the Supreme Court’s final orders on the appeal as a whole.