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Latest in Employment Law>Case Law>Patrick Kelly v Minister for Agriculture and Others [2012]
Patrick Kelly v Minister for Agriculture and Others [2012]
Published on: 07/03/2016
Issues Covered: Tribunal Practice, Procedures & Jurisdictional Issues
Article Authors The main content of this article was provided by the following authors.
Eamon Harrington
Eamon Harrington
Background

1. Background

The plaintiff was dismissed from the position of Harbour Master at Killybegs Fishery Harbour Centre. He challenged various procedural aspects of the manner in which the investigation into the following allegations was conducted:

(i) that he operated a private company providing marine services; 

(ii) the imposition of compulsory pilotage by him; 

(iii) the provision by him of pilotage for reward; 

(iv) that he had kept large amounts of personal cash on the department's premises; 

(v) the illegal disposal of a fishing vessel; 

(vi) requiring staff to convert punts to euro. 

His challenge led to the Court considering the following issues:

(a) The fairness of the disciplinary process set out in the Departmental Circular including the standard of proof and the alleged absence of a full appeal. 

(b) The involvement of the Minister and objective bias. This was described by counsel as the main issue in the case. 

(c) The failure to provide the Employee with the full statements of certain witnesses until August 2007. 

(d) The conclusions of the investigating officer were tainted by bias. 

(e) Incorrect procedure - alleging the investigating officer was witness, prosecutor, judge, jury and appeal court.

2. Witness Statements

The Employee had a number of complaints. This note focuses on the complaint that the employer did not initially provide to him full witness statements until after preliminary findings were made, following an investigative phase.

The Investigator at an early stage in the investigation chose to furnish the Employee with only the extracts from certain witness statements that related to allegations made against him that were being investigated as part of the disciplinary process (in accordance with the Department’s Circular, which stipulates this approach). However, the Employee sought access to the witness statements in their entirety on the grounds that he required them to defend his position in the context of the disciplinary investigation. The Investigator agreed to make un-redacted statements available to him on condition that he give a written undertaking to use such documents only for those purposes. The Employee did not accept this offer. 

In August 2007 the Investigator’s successor released full witness statements to the Employee without qualification as to his use of them.

The Employee argued that the Employer failed to provide him with the full witnesses’ statements of some of his accusers until the autumn of 2007, by which time the investigating official had made his decision on the culpability of the Employee as per his report of February 2007. Those statements relied on were extremely prejudicial to the Employee, and there was a well-grounded suspicion of bias in respect of same. 

Consequently, the Employee said he was not in possession of the complete statements when the formal disciplinary hearing was heard and following which the investigating officer formed definitive conclusions as to the Employee's culpability. These conclusions in turn formed the basis of deliberations of the appeal board, resulting in a deeply flawed process from the outset. 

The Employee argued that the there was a breach of his constitutional rights and fair procedures in that the Employer failed to inform him of all and every allegation made against him. The Employer failed to furnish the Employee with crucial documentation in advance of formal disciplinary hearings, which was of the greatest materiality to the conduct of the investigation and to the issues arising and such failure amounted to concealment. The Employer argued that full witness statements were made available to the Employee in August 2007 and he was given ample opportunity to make representations in relation to them.

Decision

The Court noted that the statements were made by certain individuals to an officer of the Department of Communications, Marine and Natural Resources who had been engaged to assist in the investigation. The statements were made by a clerical officer, a general operative and a foreman. Initially these statements were only furnished in extracted form. 

The investigating officer said they contained a considerable degree of information extraneous to the allegations he was attempting to investigate. When pressed to release the full statements, he offered to do so on condition they were not used for any purpose other than the investigation. This offer was refused. Ultimately, in August 2007, the successor did release the full statements. 

Although the Employee complained of the initial withholding of these statements, the fact he chose not to call any of the authors of these statements as witnesses at the appeal board hearing demonstrates that there was nothing of value in the unreleased parts of these statements to the Employee's defence of the allegations. Once the full witness statements were furnished to him, he appears to have had no further comment of any kind to make upon them.

The court said the Investigation officer was prepared to release the statements in unredacted form upon conditions that appear reasonable. The Employee's failure following their unconditional release to him to engage with the contents of the statements confirms the view of the investigating officer that the redacted sections were of no relevance to the disciplinary process. This original decision thus was vindicated and cannot give rise to any reasonable apprehension of bias.

The Court dismissed the Employee’s challenge on this ground, as well as other grounds.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 07/03/2016
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