The court held that former Minister Mary Coughlan’s presence at Cabinet resulted in the decision being tainted by objective bias.
A FORMER HARBOUR master in Co Donegal has won his Supreme Court appeal over his dismissal following an investigation that found he had private marine service business interests which were in conflict with his role as a civil servant.
The Supreme Court found the 2009 decision to dismiss Patrick J Kelly should be quashed on grounds including that former Minister Mary Coughlan TD, who had made complaints about him, should not have attended a cabinet meeting when the decision to fire him was made.
The court held that her presence resulted in the government’s decision being tainted by objective bias, and therefore it was allowing Kelly’s appeal against his dismissal.
The court rejected Kelly’s claim that he was dismissed contrary to fair process from his post.
Kelly was dismissed as Killybegs harbour master in Co Donegal following a number of complaints about him, including from former Minister Coughlan in 2004 when she was Minister for Social and Family Affairs.
The then Minister had expressed concerns including that Kelly had employed his brother-in-law at the harbour without following due process and that he switched off the CCTV system in the harbour.
An investigation was ordered by the Department of Marine and Natural Resources and a number of allegations were found proven against him.
These included providing pilotage services for reward, receiving payments in his personal capacity while on duty as harbour master and using some of the Killybegs harbour workforce in the clean-up of an oil spillage while they were being paid by the Department.
He claimed it was his understanding he could receive payments for pilotage on his own time. His dismissal was recommended in a report to the Minister for Marine.
He appealed and among his submissions to the appeal board was that he never denied doing any of the activities he was accused of as he was “instructed to do them by his superior and by other agencies in the same Department i.e the Coastguard.”
The appeal board found a serious conflict of interest between his duties as harbour master and the carrying out of commercial pilotage work. It did not overturn the dismissal recommendation.
His challenge against that decision was rejected by the High Court. In 2019 the Court of Appeal (CoA) dismissed his appeal. It said it was not necessary to allow him cross-examine all the witnesses during the investigative process and he was not denied fair procedures.
In relation to his claim of not being afforded fair procedures over Minister Coughlan’s complaints, the CoA said neither of the Minister’s initial complaints, about the employment of his brother-in-law or the CCTV system, formed part of the investigation into his conduct.
Kelly secured permission to bring an appeal before the Supreme Court on the basis that the case raised an issue of public importance, which in Kelly’s case related to the question of bias.
‘Strong and trenchant views’
On Tuesday the five-judge court, comprised Justice Donal O’Donnell, Justice William McKechnie, Justice John McMenamin, and Justice Peter Charleton and Justice Elizabeth Dunne unanimously found in Kelly’s favour.
Giving the court’s lead judgement Justice Dunne said that given that Minister Coughlan had “strong and trenchant views” about Kelly, she should not have participated at the Cabinet meeting at which the decision was taken to dismiss him.
“In my view, the hypothetical reasonable observer would have had a reasonable apprehension as to the possibility that the decision taken by the government by reason of the presence of the Minister at the cabinet was tainted by bias,” Justice Dunne said.
The judge said that it should have been apparent to Minister Coughlan that it was inappropriate for her to attend that cabinet meeting given her previous interest and involvement in the matters at issue.
The fact that the government took the decision to dismiss Kelly, did not mean that the decision was immune from objective bias, the judge said adding that there was no question of actual bias in the decision.
The judge also noted that following the 2004 meeting a long and detailed investigation into the allegation against Kelly took place and that the Minister had “no hand, act or part in that process.”
The matter also came before an independent Appeal Board which reached its own conclusions, the judge also noted. Justice Dunne also dismissed Kelly’s claim that his dismissal was done in the absence of fair procedures.
In his judgement, Justice O’Donnell agreed that the decision should be quashed.
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He said the Minister had in 2004 met with the person carrying out an investigation into allegations against Mr Kelly, at a time when Coughlan did not have responsibility for Harbour Masters was also a factor in his decision why the decision to dismiss Mr Kelly should be quashed.
A reasonable bystander, he said, would not be confident that the process was “not affected by the twin involvement of the Minister” as “a complainant at the outset of the process”, and as “a decision maker at its conclusion.”
He said that he had taken a preliminary view that the matter could return before the current cabinet, which could consider the report where it was recommended Kelly be dismissed.
The Judge said the court would hear counsel for the parties on what is the appropriate course taken should be taken in light of the court’s decision.
He said that this was an “unfortunate and complex” case which was also “unusual and unique”. He said that the investigation into Mr Kelly’s conduct was “undoubtedly justified.”
The subsequent inquiry, he added, was very detailed and meticulous and was made more difficult by Kelly’s attitude towards it. What was unfortunate was that it took so long to come to court, he added.
In his judgement, Justice MacMenamin said in his view that the order quashing the dismissal must encompass the entire disciplinary process from the offset.
This was because the judge found the entire process to be tainted with objective bias.
The judge asked why the Minister had met with the investigator in 2004 shortly after that individual had been appointed to conduct a probe into allegations in Kelly, when there was no necessity for such a meeting and that her complaints could have been passed on.
Dealing with the issue of fair procedures Justice Charleton said in his judgement that there was no proof of what Kelly had alleged, and therefore that aspect of his appeal must be dismissed.