The Supreme Court has dismissed Patrick J Kelly’s appeal over the procedure that led to his dismissal as harbourmaster of Killybegs Fishery Harbour Centre, affirming the High Court order that rejected his application to overturn it for apparent bias.
In a judgment delivered on 30 March 2021, Mr Justice Peter Charleton said he agreed with the reasoning of Ms Justice Elizabeth Dunne, whose judgment dealt with the appeal. The Supreme Court appeal concerned whether the investigation was biased; it did not reopen the underlying factual findings, which Kelly had not challenged through the appeal process available to him.
Kelly was dismissed on 30 September 2009. The judgment says he had run or directed ships to a pilotage service, North West Marine Services Limited, while serving as harbourmaster. It records that he held a 1% shareholding in the company and that it had retained profits of €142,978 in 2003 and €172,548 in 2004. Kelly denied receiving profit, while accepting his involvement in running a pilotage service. The investigation found that he had run the service and profited from it.
The Department began an investigation after receiving an anonymous letter in August 2004. Kelly was suspended and told of the investigation on 18 October 2004, four days after a minister from another department visited and raised concerns. The judgment describes unofficial notes of the visit as containing strongly expressed views about Kelly, including matters outside his harbourmaster duties. The court found no evidence that the minister ordered a particular outcome or that the investigator, Tony Fitzpatrick, was influenced by her remarks. It assessed apparent bias in light of the whole process, including the investigation’s examination of the facts.
The court said a civil service employment investigation does not generally need to copy a court trial. Fair procedure requires notice of the conduct in question and an opportunity for the employee to respond. It also said Kelly’s appeal had challenged the penalty rather than the investigation’s factual findings.
Kelly had also complained about the Government’s dismissal decision, arguing that the minister’s earlier views affected the Cabinet decision. The judgment said there was no evidence about whether she voted or about lobbying of other ministers. It expressed no view on the broader question of applying the rule against judging one’s own cause to Cabinet discussions, saying that issue was outside the appeal on the evidence before it.
The Supreme Court dismissed the appeal and affirmed the High Court order dismissing Kelly’s application. It did not set aside the dismissal.