The Supreme Court has quashed the Government’s 2009 decision to dismiss Patrick J. Kelly as Harbour Master of Killybegs, finding that the decision was tainted by objective bias. It refused his requests for salary arrears and a pension calculated as if he had remained in service until 2016.
In a judgment delivered on 15 September 2021, Mr Justice Donal O’Donnell said the dismissal decision should be quashed, but the investigation and appeal board’s findings that Mr Kelly had committed misconduct meriting dismissal remained undisturbed. The court did not decide whether the Government could ratify the original decision after the case was remitted; O’Donnell said it was unnecessary to determine that question.
The case followed earlier Supreme Court rulings. In March 2021, a majority found objective bias in the Government’s involvement in the dismissal. In April, the court made a limited declaration to that effect and awarded Mr Kelly 50% of his costs, while seeking further submissions on any additional orders.
Mr Kelly had been appointed Harbour Master in 1996. An investigation began in 2004, and he was suspended. The investigation found misconduct warranting dismissal; an appeal board allowed part of his appeal but upheld that finding. The Government dismissed him in September 2009. His wider challenge to the investigation, appeal process and governing rules had failed in the High Court and Court of Appeal. His successful Supreme Court ground concerned the Minister’s attendance at the Government meeting.
Mr Kelly argued that quashing the dismissal should restore him to the position of a civil servant suspended on full pay, entitling him to salary arrears through July 2016 and a pension based on service up to then. The respondents opposed further relief or, alternatively, argued that the matter should return to the Government for a decision on his status from 2009.
O’Donnell said the court lacked the pleadings and evidence needed to assess a damages claim, including evidence about earnings from other employment. He also rejected treating Mr Kelly as having served or been available to serve between 2009 and 2016. Doing so, he said, would go beyond undoing the effects of the biased decision and confer a windfall, particularly while the misconduct findings stood.
The judgment noted a separate disagreement over pension rights accrued before dismissal. The respondents said no pension had been withheld and that Mr Kelly had not applied for it; he said it had been withheld because of their costs claim. O’Donnell said that issue did not arise directly in the appeal and expressed a non-binding view that Mr Kelly appeared entitled to recover any pension due for actual service before dismissal. He urged the parties to resolve the matter without further litigation.