A Supreme Court judgment dated 30 March 2021 records that Justice Dunne would allow Patrick J. Kelly’s appeal against the Government’s decision to dismiss him as Harbour Master at Killybegs Fishery Harbour Centre. She concluded that a reasonable observer could apprehend bias because a minister who had made complaints about Kelly participated in the Cabinet decision to dismiss him. The supplied judgment contains Dunne J.’s reasons; it does not state the Supreme Court’s final disposition of the appeal.
Kelly was appointed to the established Civil Service post in 1996. The disciplinary process followed an anonymous complaint received by the Department in August 2004 alleging he had engaged in commercial pilotage while harbour master. The Department decided to investigate on 6 September 2004. Kelly was suspended pending the investigation.
In October 2004, then Minister and local TD Mary Coughlan raised concerns about harbour management with Department officials and met the investigating officer, Tony Fitzpatrick. His notes recorded complaints about Kelly, including allegations in pejorative terms. Dunne J. said those complaints did not form part of Fitzpatrick’s investigation. She rejected Kelly’s claim that Fitzpatrick was actually biased, finding no evidence that he reached his conclusions irrespective of the evidence.
An independent Civil Service Appeal Board later considered the disciplinary findings. It found that Kelly had carried out commercial pilotage through North West Marine Services Ltd, in which he was a director and 1% shareholder, and that the company received payment for the work. The Board did not accept his explanation that his involvement was primarily to provide insurance cover, and concluded that dismissal was not grossly disproportionate in light of the pilotage findings. It considered other allegations, but did not regard two incidents as serious enough to warrant dismissal on their own.
The Government decided on 30 September 2009 to dismiss Kelly under section 5 of the Civil Service Regulation Act 1956. Coughlan was present. The High Court refused judicial review, and the Court of Appeal upheld that decision in 2019. The Supreme Court granted leave to appeal in June 2020 on issues concerning the 2004 meeting and the minister’s participation in the Cabinet decision.
Dunne J. disagreed with the Court of Appeal on the latter issue. Although she accepted that Coughlan was entitled to make complaints and had no further role in the investigation, she concluded that her earlier trenchant views and participation in the ultimate dismissal decision created a reasonable apprehension of bias. She would allow the appeal on that ground. In the supplied text, this is Dunne J.’s conclusion; the final outcome for the Court is not provided.