The recent judgement of the Supreme Court in Patrick J. Kelly v. the Minister for Agriculture and others,[1] quashed the dismissal of the former harbour master, Mr. Patrick Kelly (the “Employee”), on the basis that the decision was tainted by objective bias.

This is an important judgement for a number of reasons. Not only because of the protracted nature of the legal proceedings, which, as described by Justice Charleton “involved a saga of four years of investigation…an appeal process spread over three days, ten days of argument in the High Court and two in the Court of Appeal.” It also highlights the pervasive effect that an objective perception of bias can have on a decision-making process.

Background ⚓︎

The Employee was appointed to the Civil Service position of harbour master at Killybegs Fishery Harbour Centre (“KFHC”) in Donegal. It was a condition of his employment that he could not be “connected with any outside business which would interfere with the performance of his official duties”.

In 2004, an investigation was launched on foot of an anonymous letter to the Department of the Marine and Natural Resources, alleging that the Employee had engaged in private business interests in contravention of his employment. In particular, that the Employee was a director and 1% shareholder of North West Marines Services Limited and provided commercial pilotage services to vessels using the harbour.

The Minister for Agriculture at the time, Mary Coughlan (the “Minister”), also expressed “a range of serious concerns” regarding the Employee’s management of KFHC.

An investigation commenced into the Employee’s activities at KFHC under the Civil Services Disciplinary Code Circular 1/92. Following a Cabinet meeting on 30 September 2009, the government dismissed the Employee from the Civil Service in accordance with Section 5 of the Civil Services Regulation Act 1956 due to gross misconduct.

The Employee initiated judicial review proceedings in the High Court, seeking, inter alia, an order of certiorari quashing the decision of the government to set aside his dismissal due to a lack of fair procedures.

In particular, the Employee alleged that the Minister’s involvement in the process created an objective bias. Firstly, because the investigating officer failed to disclose the Minister's complaint, which gave rise to a reasonable apprehension of bias and described this non-disclosure as concealment. Secondly, because the Minister should not have participated in the Cabinet decision to dismiss the Employee due to her previous complaints.

The High Court’s decision ⚓︎

In 2012, the High Court refused to grant the Employee the order, finding that the process, which led to the Employee’s dismissal was fair and that no bias existed during the investigation process or the subsequent decision to dismiss the Employee. The Employee subsequently appealed this decision to the Court of Appeal.[2]

The Court of Appeal’s decision
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The Court of Appeal upheld the High Court’s decision and dismissed the Employee’s appeal, finding that the Employee had been afforded fair procedures throughout his disciplinary process.[3]

The Court rejected the arguments related to objective bias, as the Employee had failed to establish that the government’s decision was tainted by objective bias by reason of the Minister’s complaints during the investigation and her participation in the Cabinet meeting which took the decision to dismiss the Employee.

The Employee was granted leave to appeal this decision to the Supreme Court due to the case raising issues of public importance.

The Supreme Court’s decision ⚓︎

In March 2021, the Supreme Court allowed the Employee’s appeal, overturning the decisions of the High Court and the Court of Appeal. While the Court stated that there was no proof to substantiate the Employee’s allegations that he was not afforded fair procedures during the investigation, it found that the decision to dismiss him was tainted with objective bias and as such, ought to be quashed.

Justice Dunne, who provided the principal judgement in the Supreme Court, noted while the Minister was entitled to make complaints in relation to the Employee, “bearing in mind her trenchant views”, she should not have participated in the Cabinet meeting, at which the decision to dismiss the Employee was taken.

As the Minister acted as a complainant and a decision maker in the process, Justice Dunne held “the hypothetical reasonable observer would have 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 meeting was tainted by bias.”

Accordingly, while there was a finding of objective bias, Justice Dunne added that there was no question of actual bias.

While the Supreme Court found that the decision to dismiss the Employee was tainted by objective bias, given the time that had elapsed since the decision to dismiss the Employee, and the “unusual and unique” circumstances of the case, the Court directed that the parties provide written submissions as to the appropriate course of action in light of its findings.

Both parties were directed to provide submissions on the following issues:

• Whether, in light of the Court’s findings, the Court can refrain from making an order of certiorari quashing the government decision and, if so, the considerations which are applicable;
• Whether, if the Court makes an order of certiorari quashing the government decision, the Court may remit the matter to the government and, if so, the considerations relevant to that decision;
•  The effect of the declaration already made on the validity of the government and/or the appellant’s status;
•  Whether, and in any event, the Court could make declarations as to the status of the appellant, his entitlement to (a) salary; (b) increments; and (c) pension, and if so the considerations relevant to any such orders.

As no formal decision has been published from the Supreme Court determining the appropriate relief, we continue to await the Supreme Court’s final decision in this matter.

Conclusion ⚓︎

The absence of bias on the part of decision makers is a fundamental tenet of any disciplinary process. Notwithstanding the Supreme Court’s finding that there was no actual bias during the investigation, the perception of bias was sufficient to undermine the entire process leading to the Employee’s dismissal. This highlights the importance of eliminating any inference of bias, such that justice is not only done but is also seen to be done. This is an important lesson which all employers must bear in mind in order to conduct a fair and independent disciplinary process that is beyond reproach.

[1] [2021] IESC 28

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