The Court of Appeal has dismissed Patrick J. Kelly’s appeal against the High Court’s refusal to quash the Government’s decision to dismiss him from his post as harbour master at Killybegs Fishery Harbour Centre (KFHC).
The appeal concerned the Government’s 30 September 2009 decision to dismiss Kelly, effective that day. He had been suspended in October 2004 while the Department investigated allegations about his conduct. The Court of Appeal judgment, delivered by Ms Justice Costello on 17 December 2019, concluded that the High Court judge had made no error on the grounds raised.
The central issue was Kelly’s commercial pilotage work at Killybegs while he was harbour master. He accepted that he carried out pilotage for North West Marines Services Limited, in which he was a director and 1% shareholder, and that the company was paid. He maintained that he received no personal payment and was entitled to do the work. The independent appeal board concluded that the company’s retained profits meant he could benefit from its work, and found a conflict with his official duties. It upheld dismissal as an appropriate sanction for the pilotage conduct.
The board also upheld misconduct findings concerning an oil-spillage clean-up at Abbott Engineering and deployment of a department boom at Sligo Harbour, but considered dismissal too severe for those incidents. It recommended substantial penalties instead. The Court of Appeal said the board had considered the merits and could reach its own conclusions; it was not limited to reviewing the investigator’s procedure.
Kelly argued that the disciplinary process was unfair, including because he lacked legal representation during the investigation, could not cross-examine witnesses, received unredacted statements late, and was not told of complaints made to the investigator by then-Minister Mary Coughlan. The court rejected those grounds. It said legal representation at the investigative stage was not required in the circumstances, and cross-examination was not necessary where the relevant facts were not in dispute. Kelly received unredacted statements in 2007 and did not use them to make submissions in his disciplinary defence. The complaints raised by Coughlan, other than the pilotage issue, were outside the investigation; the court found no resulting unfairness.
The court also rejected claims of actual or objective bias, including the claim concerning Coughlan’s participation in the Cabinet decision. It found no basis to quash the decision over delay, the investigator’s authority after leaving his post, or the standard of proof. The appeal was dismissed. The ruling did not reopen the Government’s decision or alter the dismissal.