The Supreme Court has ruled that a former harbour master in Co Donegal who won his appeal over his 2009 dismissal is not entitled to be paid from the time he lost his job to when he would have due to retire.
Last March, the Supreme Court found the September 2009 decision to dismiss Patrick J Kelly should be quashed on grounds including that former minister Mary Coughlan, who had made complaints about him, should not have attended a cabinet meeting when the decision to fire him was made.
Arising out of that decision, Mr Kelly sought certain orders from the court that would have seen him paid from the time of his dismissal to 2016 when he would have been due to retire from the post.
However, in a 3-2 majority decision, a five-judge Supreme Court said while Mr Kelly was entitled to a formal order quashing the government’s decision to dismiss him it refused to make orders directing the state to pay salary and pension entitlements claimed by him.
Mr Kelly was dismissed as Killybegs Harbour Master 12 years ago following a number of complaints about him, including from Ms Coughlan in 2004 when she was minister for social and family affairs.
She had expressed concerns including that Mr 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 against him were found to be proven.
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.
The investigation found he had private marine service business interests which were in conflict with his role as a civil servant.
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 the 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 and upheld the dismissal recommendation.
He brought what transpired to be a lengthy legal action against the State challenging that decision. His claim was rejected by the High Court and in 2019 the Court of Appeal (CoA) dismissed his appeal.
Mr 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 Mr Kelly’s case related to the question of bias.
The Supreme Court held that the former minister and Donegal-based TD’s presence resulted in the then government’s decision being tainted by objective bias, and allowed Mr Kelly’s appeal against his dismissal.
That court rejected Mr Kelly’s claim that he was dismissed contrary to fair process from his post.
Giving the court's lead judgement Ms Justice Elizabeth Dunne said that given that Ms Coughlan had "strong and trenchant views" about Mr Kelly, she should not have participated at the Cabinet meeting at which the decision was taken to dismiss him.
Arising out of that judgement overturning the dismissal, the Supreme Court was asked by Mr Kelly’s lawyers to treat him as if he was a suspended civil servant.
He sought orders from the court that Mr Kelly should be paid the salary and pension entitlements he would have earned between the time of his dismissal to 2016 when he reached retirement age.
The State opposed the application for payments.
In his judgement, Mr Justice Donal O'Donnell, in which the Chief Justice Frank Clarke and Ms Justice Dunne concurred, dismissed the applicant and refused to grant the orders sought.
In the period between 2009 and 2016, the judge held that Mr Kelly was not in a position to render service as a civil servant, and had engaged in other employment.
To hold that he was entitled to be paid as if he was employed as a civil servant would be “to provide him with a windfall.”
Given the unique circumstances of the case, the judge said he was not prepared to deem Mr Kelly to be a civil servant suspended on full pay and entitled to pension during the relevant period.
The judge added that it was desirable in order to avoid any further litigation, that the parties work out any issues over Mr Kelly’s pension entitlements between themselves.
The judge said a just conclusion was an order quashing the 2009 dismissal.
However, while Mr Kelly was entitled to such an order, the findings of the investigation into the complaints against him “remain undisturbed,” the judge said.
The judge also declined to remit the matter back to a lower court. The judge added that he was declining to remit the matter back to the government for a fresh determination.
Given the unusual circumstances of the case the judge said the court did not find it necessary to determine if it were possible to quash the 2009 decision and then remit the matter to the government to ratify it.
Remitting the matter back, he said raised several issues, which the court was not expressing any views on.
In a dissenting, Mr Justice John MacMenamin said this difficult case, where lessons could be learned should be cited as an important test case on issues including the length of any investigation process.
The judge said that the appropriate order for the court at this point would be to remit it to the High Court.
That court he said could consider any issue as to whether Mr Kelly actually did sustain loss or damage which might be recoverable at law, whether in the form of loss of salary or of pension.
In his decision Mr Justice Peter Charleton, who also dissented from the lead judgement, said the Supreme Court's finding last March meant that the remedy Mr Kelly was entitled to must "reflect the wrong."
Had Ms Coughlan excused herself or taken no part in the discussion regarding Mr Kelly’s dismissal, which he said seemed likely but has not been proven, the decision would be unimpeachable on any reading of the law.
Since she was merely one vote out of 15 members of Cabinet, perhaps considerations of proof would require a wider influence, accepting for the moment the divisibility of governmental decisions, he added.
If that is the wrong, the remedy required is for the matter to be reconsidered by Cabinet where Mr Kelly would again be entitled to make submissions on a humanitarian or legal or another attempted persuasive basis.
The Cabinet would be entitled to revisit the original decision and dismiss Mr Kelly, he said.
The judge said that if the Government decided to retain Mr Kelly’s services, then retirement and pension entitlements he might possibly enjoy could then become relevant to any claim for damage he may seek to make, he added.