Orlaith Fahy v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 30 June 2021
• Neutral Citation: [2021] IEHC 440
• Docket Number: [2020 No. 294 JR]
• Court: High Court

Between

Orlaith Fahy

Applicant

and

The Commissioner of an Garda Síochána

Respondent

[2021] IEHC 440

[2020 No. 294 JR]

THE HIGH COURT

Judicial review – Employment – Garda Síochána (Admissions and Appointments) Regulations 2013 – Applicant seeking an order of certiorari quashing the respondent’s decision – Whether the respondent misapplied and/or misconstrued the Garda Síochána (Admissions and Appointments) Regulations 2013

Facts: The applicant, Ms Fahy, during her time as a trainee Garda and on into her time as a fully attested member of An Garda Síochána, failed a fitness test some six times, with the eventual result that she was dismissed from An Garda Síochána. She contended that: (i) the determination to dispense with her services was done otherwise than in accordance with reg. 12(8) of the Garda Síochána (Admissions and Appointments) Regulations 2013; (ii) the respondent, the Commissioner of An Garda Síochána, mis-applied and misconstrued the 2013 Regulations; (iii) the respondent deployed Ms Fahy’s probationary period (and extensions thereof) for a purpose/objective that was not in compliance with the 2013 Regulations; (iv) the Commissioner represented to Ms Fahy during a critical phase of her probationary period that it was possible for her to complete her probationary period; (v) there was a pre-ordained conclusion to the reg. 12(8) proceedings and the invitation to make submissions was an empty process; (vi) the procedures adopted by the Commissioner were artificial, futile and had no appreciable prospect of conferring any benefit on Ms Fahy; (vii) the practice and procedures adopted by the Commissioner lacked the required transparency; (viii) the Commissioner failed to provide any (or any sufficient) reasons for the decision made; and (ix) there was no provision in the 2013 regulations that entitled the Commissioner to deem the attainment of the B.A. in Applied Policing as an essential prerequisite to becoming an efficient and effective member of An Garda Síochána or, if there was such provision, that Ms Fahy should have been advised of this prerequisite in the reg. 12(9) notice.

Held by the High Court (Barrett J), on 3rd June 2021, that it did not see any flaw in how the Commissioner proceeded, save in one potential respect: whether the extensions of the applicant’s probationary period were done in accordance with the 2013 Regulations. Because that point had not been argued in detail, the court considered that it should give the parties the opportunity to make oral or written submissions regarding same. The court heard the parties further on this matter on 24th June 2021. The applicant contended that the point was properly before the court and agreed with the court’s analysis. The Commissioner contended that the point raised was not properly before the court and thus was not prepared to make any submissions on the point in question. On 30th June 2021, Barrett J held that decisions were made to extend Ms Fahy’s probationary period and that the various extensions did not amount to probation as envisaged by the 2013 Regulations. Barrett J held that the vires in respect of the extensions was central to the issues before the court. Insofar as the Commissioner unlawfully extended the probation for a period outside that contemplated by the 2013 Regulations, Barrett J held that the Commissioner’s purported dismissal of Ms Fahy under the 2013 Regulations was unlawful.

Barrett J granted Ms Fahy: (i) an order of certiorari quashing the respondent’s decision given on or about 7th February 2020, whereby the respondent, in purported compliance with the powers conferred by reg. 12 of the 2013 Regulations, determined the applicant’s employment; (ii) a declaration that the Commissioner misapplied and/or misconstrued the relevant provisions of the 2013 Regulations; (iii) a declaration that through his misapplication of the 2013 Regulations the Commissioner did not act lawfully when he proceeded under reg. 12(4) of those Regulations instead of under reg. 12(10), following upon his issuance of the reg. 12(9) notice, thus unlawfully using Ms Fahy’s purported probationary period to facilitate a purpose or objective not authorised by the 2013 Regulations, viz. her dismissal as a probationer Garda when she was no longer a probationer.

Reliefs granted.

JUDGMENT of Mr Justice Max Barrett delivered on 30 ^th June 2021 (comprising [A] an interim judgment of 3 ^rd June 2021 and [B] an addendum of 30 ^th June 2021 to that interim judgment) .

[A] INTERIM JUDGMENT

I

Further Submissions Necessary?

1 . The parties will see as they read this interim judgment that the court does not see any flaw to present in how the Commissioner proceeded, save in one potential respect, as identified in Part XIII below. Because the point in Part XIII has not been argued in detail, the court considers that it should give the parties the opportunity to make oral or written submissions regarding same, which submissions may conceivably include the submission that the court should not receive further submissions and/or treat with the ‘Part XIII issue’. The reason that the court considers that further oral/written submissions should be made regarding the ‘Part XIII issue’ is that the said issue seems ostensibly to have the potential to ‘flip’ this case from one in which the Commissioner succeeds to one in which Ms Fahy succeeds, notwithstanding that throughout the rest of this judgment the court respectfully prefers the Commissioner's case to that of Ms Fahy. The parties should note that in affording this opportunity for further submissions the court is not inviting an appeal against any aspect of this interim judgment: after hearing from the parties regarding Part XIII it will add an addendum to this interim judgment in which it will treat with those further arguments. This interim judgment and that addendum will then form the court's final judgment. If the parties then wish to appeal all or any aspect of that final judgment that is a matter for them. The court emphasises that it has reached no conclusions regarding any of the matters addressed in Part XIII.

II

Introduction

2 . Ms Fahy is a sporting-woman who plays camogie for her local GAA team, does long-distance charity cycles, and has, at times, attained a level of fitness that would doubtless be the envy of many, albeit that, regrettably, she has not escaped injury. Despite her generally high level of fitness, and perhaps because of injury sustained through sport, she was unfortunate enough during her time as a trainee Garda and on into her time as a fully attested member of An Garda Síochána (during the period that she was still designated, by reference to her length of service, as a ‘probationer’ Garda), to fail a fitness test some six times, with the eventual result that she was dismissed from An Garda Síochána. For my part, I admit to having felt very sorry throughout these proceedings that Ms Fahy finds herself in the position that she is in – repeatedly failing a fitness test when she is clearly a woman who enjoys sport and who appears generally to have attained a very high level of fitness, at least until she was blighted by injury. However, as she no doubt appreciates, courts are required to proceed dispassionately by reference to the law, not on sympathy. The critical question of law presenting here is whether the Commissioner acted in accordance with law in dismissing Ms Fahy as he did.

III

Probationer Gardaí

3 . This Court's judgment in Murphy v. The Commissioner of An Garda Síochána [2021] IEHC 354 was handed down on the day that this case was at hearing. In that judgment, the court observed, amongst other matters, as follows, at para.2:

“ This application is brought by Probationer Garda (or ‘P/Garda’) Murphy. However, his counsel claims that in law there is no such thing as a ‘probationer’ Garda, that one can be a ‘trainee’ Garda and then, once attested as a member of the force, one becomes a ‘Garda’ but that the concept of a probationer Garda is something unknown to law. There is no doubt that a so-called ‘probationer’ Garda is an attested member of An Garda Síochána. However, that does not mean that it is not possible for the Commissioner to distinguish between e.g., probationer Gardaí and non-probationer Gardaí (the latter being Gardaí within typically the first two years of their careers as Gardaí, though this period is subject to extension). Section 123 of the Garda Síochána Act 2005, which is concerned with the making of disciplinary regulations, expressly provides, amongst other matters, at subsection (6), that ‘The regulations may…(b) provide for the taking of different forms of disciplinary action against members of the Garda Síochána based on their rank or on any other factor’, the phrase ‘any other factor’ patently including the period of time that has elapsed since once's attestation as a member of An Garda Síochána.”

4 . So, in legal terms, as a probationer Garda, Ms Fahy was a fully attested member of An Garda Síochána and so not a trainee Garda, albeit that she was among a cohort of early-career Gardaí whom the Commissioner, acting pursuant to s.123 of the Act of 2005, had lawfully elected to distinguish from non-probationer Gardaí by reference to time spent as members of An Garda Síochána, and who might colloquially, but not in a legal sense, be described as being at a training stage of their careers.

IV

Facts: Overview

5 . Perhaps the best way of generally identifying the facts at play in this application is by way of summary chronology:

11.04.2016. Ms Fahy commences Phase I of her B.A. in Applied Policing at the Garda College in Templemore.

15.04.2016. Ms Fahy signs the Conditions of Service and Acceptance of Admission as a Trainee.

17.11.2016. Ms Fahy is attested as a member of An Garda Síochána. Thereafter she commences Phase II of the B.A.

31.05.2017. Ms Fahy fails the fitness assessment component...