Court of Appeal: Former Killybegs harbour master loses appeal in challenge to his dismissal

About this case:

• Citation:
  [2019] IECA 299
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Caroline Costello

After a lengthy investigation, it had been found that the commercial pilotage services the man had provided after becoming harbour master represented a serious conflict of interest.

Rejecting the man’s argument that there had been several breaches of his right to fair procedures, Ms Justice Caroline Costello was also satisfied that the decision to dismiss was not tainted by objective bias.

Background

In 1996, Patrick Kelly was appointed to the position of harbour master at Killybegs Fishery Harbour Centre in Donegal.

A condition of the post was that Mr Kelly could not be “connected with any outside business which would interfere with the performance of his official duties”. Despite this condition, Mr Kelly was a director and 1% shareholder of North West Marines Services Limited (NWMS) and provided commercial pilotage services to vessels using the harbour.

In the present proceedings, the critical issue between Mr Kelly and the State was whether he was entitled to carry out these activities, and whether he did so for personal gain.

Investigation and dismissal

In 2004, the Department of Communications, Marine and Natural Resources was conducting a review of KFHC when it received an anonymous complaint alleging that Mr Kelly had engaged in commercial pilotage at KFHC over a number of years. Mr Kelly was investigated in relation to allegations of financial improprieties and to conduct an investigation under the Civil Service Disciplinary Code, Circular 1/92.

The Assistant General Secretary of the Department also received complaints from Mary Coughlan, who was the Minister for Agriculture at the relevant time.

Thereafter, Mr Kelly was suspended pending completion of the investigation in accordance with section 13 of the Civil Service Regulation Act 1956.

Mr Kelly submitted that, prior to setting up NWMS, he had piloted vessels without remuneration, that he received no payment from NWMS, and that he was involved in NWMS to secure insurance cover for commercial pilotage work and to provide cover for the department. This explanation was not accepted and it was concluded that Mr Kelly knew the conflict of interest between his duties as Harbour Master and his involvement in commercial pilotage.

In September 2009, pursuant to section 5 of the Civil Service Regulation Act 1956, Mr Kelly was dismissed from his position by the government.

In the High Court in December 2012, Mr Justice John Hedigan refused to grant Mr Kelly an order of certiorari quashing the government’s decision.

Court of Appeal

Mr Kelly alleged that the government’s decision was based on an investigation process which was unfair, did not have regard to his right to constitutional/natural justice, did not have regard to his good name and his right to earn a livelihood, and was carried out in excess of, or without, jurisdiction and breached his rights guaranteed by the ECHR.

In written submissions filed in support of his appeal Mr Kelly identified six bases upon which he alleged that there was a fundamental breach of his right to fair procedures.

Satisfied that Mr Kelly had been afforded fair procedures throughout the disciplinary process which led to his dismissal, Ms Justice Caroline Costello found that Mr Kelly was:

1. Not entitled to be legally represented during the investigative phase of the process, and that when he was so entitled he chose not to be;
2. Not entitled to cross-examine witnesses in a disciplinary process;
3. Informed in writing of the allegations under investigation and provided with comprehensive reports;
4. Afforded opportunities to respond to and rebut the allegations;
5. Provided with redacted versions of witness statements prior to being furnished unredacted versions in 2007, and thereafter he made no use of the same.

Furthermore, Ms Justice Costello said the delay in the procedure was “neither so egregious nor prejudicial as would justify quashing the decision on grounds of delay”.

Ms Justice Costello also rejected arguments regarding the alleged “objective bias” of the personnel officer of the Department who carried out the investigation, and said that Mr Kelly failed to establish that the government’s decision was “tainted by objective bias arising out of the involvement of Minister Coughlan in October 2004”.

Concluding that “a reasonable independent observer with knowledge of the facts could have no reasonable apprehension that the decision reached was not one reached by an impartial decision maker”, Ms Justice Costello dismissed the appeal.