The Supreme Court quashed the Government’s decision to dismiss Patrick J Kelly, the Harbour Master of Killybegs, after finding that a Minister’s involvement at both the start and end of the disciplinary process created a reasonable apprehension that it had been affected.
In a judgment delivered on 30 March 2021, Mr Justice O’Donnell agreed with the other judgment’s conclusion that the dismissal decision must be quashed, though for somewhat different reasons. He stressed that the circumstances were unusual and that he was reluctant to decide the case on a broad principle.
The inquiry began after an anonymous complaint. The Department of Agriculture, Fisheries and Food decided on 6 October 2004 to investigate Mr Kelly’s conduct and appointed Mr Fitzpatrick to conduct the inquiry. A Minister in another department, who was a local TD, contacted a senior departmental official two days later. At the official’s arrangement, the Minister met Mr Fitzpatrick on 15 October and expressed strong views about Mr Kelly. Mr Kelly was not told about the meeting, and no official note was kept. An unofficial note was later relied on in the case.
The investigation was lengthy and detailed. Mr Fitzpatrick recommended dismissal on several grounds. The Civil Service Appeal Board overturned some recommendations, upheld others and recommended a reduced sanction, but upheld an additional misconduct allegation and the recommendation of dismissal. The Government accepted that recommendation at a Cabinet meeting on 30 September 2009. The Minister had attended and was a member of the Government.
O’Donnell J said the initial investigation was justified and noted that Mr Kelly did not dispute its essential factual findings. The decisive concern was the Minister’s dual role: the Minister had made a complaint or representation at the outset, met the investigator and expressed strong views, then participated in the Government’s final decision. In these unusual circumstances, the judge said, a reasonable bystander could not be confident that the process had remained unaffected.
The Court’s ruling concerned the validity of the Government’s dismissal decision. O’Donnell J said the Court should hear counsel on the appropriate next step. He expressed a preliminary view that the matter could be remitted to the Government to decide again on the report, taking account of the factual matters set out in Dunne J’s judgment. The judgment does not record a final order on that next step.