Kelly v Minister for Agriculture

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 21 December 2012
• Neutral Citation: [2012] IEHC 558
• Court: High Court
• Date: 21 December 2012

Kelly v Min for Agriculture & Ors

BETWEEN

Patrick J. Kelly

Applicant

And

Minister for Agriculture, Fisheries and Food, Minister for Finance, The Government of Ireland, Ireland and Attorney General.

Respondents

[2012] IEHC 558

[No. 319 JR/2010]

THE HIGH COURT

EMPLOYMENT LAW

Judicial review

Dismissal - Applicant dismissed as harbour master - Standard of proof - Involvement of government minister - Whether delay - Whether disciplinary process fair - Whether objective bias - Re Haughey [1971] IR 217; Georgopoulus v Beaumont Hospital Board [1998] 3 IR 132 and Re National Irish Bank (No 3) [1999] 3 IR 145 considered - Relief refused (2010/319JR - Hedigan J - 21/12/2012) [2012] IEHC 558

Kelly v Minister for Agriculture, Fisheries and Food

The applicant was employed by the respondents as Harbour Master at Killybegs Fishery Harbour Centre, Co. Donegal from 1996 to 2009. The applicant was subjected to an investigation by the respondents beginning in 2004 following an anonymous letter being received that alleged that the applicant was engaged in private business activities that contravened the terms of his employment. The final report was produced on the 2 ^nd September 2008 which found that the applicant had been operating a marine services related business; he had carried out pilotage services in the area in exchange for payment whilst on duty as Harbour Master; he had improperly disposed of an oil barge; he had received a personal payment which he had declined to declare to his employer for the cleaning of an oil spillage whilst working in his capacity as Harbour Master; and that he had used Department resources for personal enterprises. The recommendation was the applicant”s dismissal from his post.

The applicant appealed the findings. The appeal board upheld all of the grounds save the finding in relation to the oil barge. The board concluded that the decision to dismiss the applicant was not ‘grossly disproportionate’ on foot of three of the reports findings. The applicant was then informed he could make further representations to the third named defendant which he did but he was subsequently dismissed on the 30 ^th September 2009. He applied to the High Court for leave to apply for Judicial Review seeking an order of certiorari of the decision to dismiss him and orders for arrears of salary and general damages which was granted on the 22 ^nd March 2010.

It was the applicant”s contention that his constitutional rights and fair procedures were breached in that the respondents failed to provide him with details of the allegations made against him and documentation to be relied on in advance of formal disciplinary proceedings. He alleged that he was not made aware that a number of the activities alleged were in contravention of his terms of employment. He further alleged that full witness statements were not provided until an advanced stage and that the investigating officer was biased as he had received complaints about the applicant from the local Dail deputy but did not inform the applicant of these. This same deputy then was involved in the decision to dismiss the applicant which he claimed also amounted to bias. The respondent averred that the applicant was estopped from making complaints regarding the investigative procedure as he had not raised a challenge at any stage beforehand. It was further contended that the investigative procedure was carried out in full compliance with the relevant disciplinary code and was impartial and fair.

Held by Hedigan J that in relation to procedural fairness, the evidence that was before the court suggested that the applicant would have been aware a number of his activities contravened his terms of employment and that he was afforded procedural fairness before and during the hearings. It was also held to be too late for the applicant to raise such objections for the first time at such a late stage. In relation to the full witness statements, it was held that when requested by the applicant, he was offered them on the condition he use them only for the purposes of defending the proceedings. This offer was refused but he received them anyway some time later. It was held that whilst they were received at a later stage, it wasn”t so advanced as to prejudice the applicant in the subsequent proceedings. It was further noted that the witnesses were not called by the applicant suggesting the originally redacted extracts offered nothing of value to the applicant”s case.

In relation to the allegation of bias, it was held that the non-disclosure of the Dail deputy”s complaint did not amount to bias on behalf of the investigating officer as the investigation as there was no evidence demonstrating he was compelled to do so. In relation to the Dail deputy, it was held that she had a right to participate in the decision making process following the complaint she had made as she was acting in two different capacities, an adjudicatory function and an executive function.

Application refused.

CIVIL SERVICE REGULATION (AMDT) ACT 2005

CIVIL SERVICE REGULATION ACT 1956 S5

HAUGHEY, IN RE 1971 IR 217

KANDA v GOVT OF THE FEDERATION OF MALAYA 1962 AC 322 1962 2 WLR 1153

TIERNEY v AN POST 2000 1 IR 536 2000 2 ILRM 214 1999 ELR 293 1999/23/7674

GALLAGHER v REVENUE CMRS & ORS (NO 2) 1995 1 IR 55 1995 1 ILRM 241

O'CALLAGHAN v JUDGE MAHON & ORS 2006 2 IR 32

O'DONOGHUE v VETERINARY COUNCIL 1975 IR 398

MCNEILL v CMSR OF AN GARDA SIOCHANA & ORS 1997 1 IR 469 1996/13/4146

MOLLOY v GARDA SIOCHANA COMPLAINTS TRIBUNAL UNREP HEDIGAN 28.4.2009 2009/40/9893 2009 IEHC 197

MCMANUS v FITNESS TO PRACTISE COMMITTEE OF THE MEDICAL COUNCIL & MEDICAL COUNCIL UNREP KEARNS 14.8.2012 2012 IEHC 350

GEORGOPOULUS v BEAUMONT HOSPITAL BOARD 1998 3 IR 132 1994 1 ILRM 58 1993/12/3656

BECKER v DUGGAN 2009 4 IR 1 2005/4/687 2005 IEHC 376

REIDY v MIN FOR AGRICULTURE UNREP O'HANLON 9.6.1989 1989/8/2233

HUGHES v CMSR OF AN GARDA SIOCHANA & ORS UNREP LAFFOY 20.1.1998 1998/7/2159

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

HENEGHAN v WESTERN REGIONAL FISHERIES BOARD 1986 ILRM 225 1985/5/1208

RSC O.84

NATIONAL IRISH BANK LTD (UNDER INVESTIGATION), IN RE 1999 3 IR 145 1999 1 ILRM 321

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD (NO 2) 2000 4 IR 159 2000/15/5538

CONSTITUTION ART 28.4.2

PUBLIC SERVICE MANAGEMENT ACT 1997 S4

MCCARRON v SUPERINTENDENT KEARNEY UNREP CHARLETON 4.7.2008 2008/36/7808 2008 IEHC 195

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

O LAOIRE v MEDICAL COUNCIL UNREP SUPREME 25.7.1997 1998/29/11470

PUBLIC SERVICE MANAGEMENT ACT 1997 S4(1)(I)

1 1. The applicant in this case seeks the following reliefs:-

(1) An Order of Certiorari quashing the decision of the third named respondent taken on the 30 ^th September, 2009, to dismiss him with effect from that date from the position of Harbour Master at Killybegs Fishery Harbour Centre, Co. Donegal, to which he was appointed in 1996 following an open competition conducted by the Civil Service Commission;

2 ) An order directing that the third named respondent pay to the applicant his arrears of salary;

3 ) An injunction restraining the third named respondent from reinvestigating the matter because of inordinate and inexcusable delay or in the alternative an order that any new investigation which the third named respondent might undertake should be conducted by an investigating officer other than the officer who conducted the investigation the subject of proceedings and such investigation should be carried out in accordance with the provisions of the Civil Service Regulation (Amendment Act) 2005 and Department of Finance Circular 14/2006;

4 ) An order for damages for abuse of process and infringement of, or alternatively interference with, the applicant's right to earn a livelihood and to his good name;

5 ) Damages for loss of earnings;

6 ) Various declaratory reliefs;

7 ) Further or other order;

8 ) The costs of and incidental to these proceedings;

2 2. The applicant is a master mariner and resides at Drumrooske, Donegal Town, Co. Donegal.

Background Facts

2 2 3.1. On the basis of the evidence presented to the court I consider the following to be the factual background to this dispute.

3 3 3.2. The dispute the subject of this case relates to the applicant's suspension and subsequent dismissal from his position as harbour master of Killybegs Fisheries Harbour Centre, Co. Donegal (hereinafter "KFHC").

4 4 3.3. On the 11th August, 2004, an anonymous letter making allegations in relation to the applicant having private business interests in contravention of his paid employment in the Civil Service was received by the Department of Marine & Natural Resources.

5 5 3.4. In light of the above Mr. Tony Fitzpatrick a personnel officer of the first named respondent, initiated an investigation into the applicant's activities in Killybegs under the Civil Services Disciplinary Code Circular 1/92. The decision to do this was initially taken on the 6 ^th September, 2004, and confirmed on the 18 ^th October, 2004.The applicant was informed by letter of the same date that an investigation would be carried out.

6 6 3.5. On the 8th of October, 2004, Mr. Cecil Beamish an assistant secretary of the first named respondent with responsibility for Fishery Harbours had conveyed in an e-mail to Mr. Fitzpatrick, comments made by the then Minister for Agriculture, Minister Coughlan in a phone call with him, where she expressed concern in relation to the applicant's management of KFHC.At a meeting of the 14 ^th...