Roche v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 25 July 2022
• Neutral Citation: [2022] IEHC 461
• Year: 2022
• Court: High Court
• Docket Number: [Record No. 2020/428 JR]

Between

Emma Roche

Applicant

and

The Commissioner of an Garda Síochána

Respondent

[2022] IEHC 461

[Record No. 2020/428 JR]

THE HIGH COURT

JUDICIAL REVIEW

Unlawful termination – Probation – Extension – Applicant challenging the respondent’s decision to dispense with the applicant’s services as a member of An Garda Síochána – Whether the applicant’s probationary period had been lawfully extended at the date of the decision to discharge her from An Garda Síochána

Facts: The respondent, the Commissioner of An Garda Síochána, made a decision under the provisions of the Garda Síochána (Admissions and Appointments) Regulations 2013 (S.I. No. 40 of 2013) to dispense with the services of the applicant, Ms Roche, as a member of An Garda Síochána. The core issue raised in the proceedings was whether the applicant was a probationer Garda when the respondent issued a notice to her pursuant to Regulation 12(8)(a) of the 2013 Regulations stating that he proposed to dispense with her services as a member of An Garda Síochána. The answer to this question turned on whether the applicant’s probationary period had been lawfully extended at the date of the decision to discharge her from An Garda Síochána. The applicant contended in reliance on the decision of Barrett J in Fahy v The Commissioner of An Garda Síochána [2021] IEHC 440 that at the time of receipt of the Regulation 12(8)(a) notice of discharge her probationary period had expired such that the statutory power to dismiss her as a probationer could no longer be exercised. It was the respondent’s case that the reliance on the decision in Fahy was misconceived in circumstances where, on the facts, that case was easily distinguished. It was the respondent’s case that the power to extend the applicant’s probationary period under Regulation 12(4) was lawfully exercised.

Held by the High Court (Phelan J) that the case was distinguishable from Fahy and that there was no unlawfulness in the extension of the probation period and therefore no unlawful termination of the applicant’s employment on the basis that she was no longer a probationer.

Phelan J refused the relief sought and dismissed the proceedings.

Relief refused.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 25 ^th of July, 2022

INTRODUCTION

1 . These proceedings arise from the decision of the Respondent made under the provisions of the Garda Síochána (Admissions and Appointments) Regulations, 2013 ( S.I. No. 40 of 2013 “the 2013 Regulations”) to dispense with the services of the Applicant as a member of An Garda Síochána. The core issue raised in the proceedings is whether the Applicant was a probationer Garda when the Respondent issued a notice to her pursuant to Regulation 12(8)(a) of the 2013 Regulations stating that he proposed to dispense with her services as a member of An Garda Síochána. The answer to this question turns on whether the Applicant's probationary period had been lawfully extended at the date of the decision to discharge her from An Garda Síochána.

2 . The Applicant contends in reliance on the decision of Barrett J. in Fahy v. The Commissioner of An Garda Síochána [2021] IEHC 440 (hereinafter “ Fahy”), that at the time of receipt of the Regulation 12(8)(a) notice of discharge her probationary period had expired such that the statutory power to dismiss her as a probationer could no longer be exercised. It is the Respondent's case that the reliance on the decision in Fahy is misconceived in circumstances where, on the facts, that case is easily distinguished. It is the Respondent's case that the power to extend the Applicant's probationary period under Regulation 12(4) was lawfully exercised in this case.

BACKGROUND

3 . In June, 2016, the Applicant entered An Garda Síochána Training College in Templemore as a trainee member. The Applicant successfully completed all modules and training and became a sworn and attested member of An Garda Síochána in April, 2017. The Applicant was subsequently required to undergo a period as a probationer Garda. The significance of the probationary period is that a Garda, in the early stages of their career, can lawfully have their employment terminated by the Respondent if they fail to demonstrate ‘during the probationary period the competence to serve as an efficient and effective member.’

4 . From May, 2017 to August, 2018, the Applicant was required to undertake Continuous Professional Development at Store Street Garda Station, Dublin as part of the probationary assessment of the B.A. in Applied Policing [hereinafter the “B.A.”]. She attended a physical competence test as a module of the said B.A. On the 23 ^rd of October, 2017 for this test the Applicant was required to undergo different movement exercises. The Applicant failed one component known as the ‘ bleep test’. Previously, the Applicant had completed this test prior to being accepted into and graduating from the Garda College.

5 . The Applicant repeated the entire physical competence test on two further occasions but failed the bleep test component. She was then required to complete a personal development log by an Inspector of the College.

6 . On the 2 ^nd of August 2018, the Applicant was notified by correspondence that following a meeting of the Examinations Board held on the 20 ^th of July, 2018 that she had failed the professional competence module. The Applicant appealed this decision. She was informed on the 24 ^th of August, 2018 by Professor Kilcommins of the School of Law, University of Limerick that her appeal had been upheld and that she would be reinstated onto the B.A. programme. She was further informed that were she to fail the repeat assessment, the College would recommend to the Exam Board that her enrolment to the programme would be terminated.

7 . The Applicant repeated the physical competence test on the 22 ^nd of October, 2018 and failed the bleep test component again. Thereafter the Applicant was informed that she would be removed from the B.A.

8 . On the 2 ^nd of November, 2018, the Applicant submitted an appeal to the Mitigation Committee, Board of Examiners at the Garda College. Following this appeal, she was granted a further attempt at the physical examinations. She repeated the bleep test on the 7 ^th of January, 2019 but failed again.

9 . On the 25 ^th of January, 2019, the Applicant received correspondence from the Director of Training and Continuous Professional Development at the College advising her that she had been removed from the B.A. programme with effect from the 14 ^th of January, 2019. She appealed this decision to the School of Law at the University of Limerick. She was informed on the 14 ^th of February, 2019 that the decision of the Garda College had been upheld.

10 . On the 12 ^th of September 2019, the Respondent served the Applicant with a notification (dated the 28 ^th of August, 2019) of a proposal to dispense with her services as a member of An Garda Síochána. In this notice the Applicant was allowed a period of 28 days within which to make submissions in respect of the proposal. The Applicant subsequently made submissions to the Respondent dated the 25 ^th September 2019.

11 . At the time the Applicant received the proposal to dismiss her, she was on a probationary period on foot of an extension which was granted on the 24 ^th of July, 2019 pursuant to Regulation 12(4). On this date, the Applicant's probationary period was extended for three months to the 24 ^th of October, 2019.

12 . On the 21 ^st of October, 2019, a further extension was made for a period of three months from the 24 ^th of October, 2019 to the 24 ^th of January, 2020 pursuant to Regulation 12(4). Similarly, on the 13 ^th of January, 2020 the period was further extended for three months from the 24 ^th of January, 2020 to the 24 ^th of April, 2020.

13 . Before the expiry of the extended probationary period, by Notice dated the 26 ^th of March, 2020, the Applicant was notified that she was discharged from An Garda Síochána because of her repeated failure (on six separate attempts) to pass the Phase II fitness assessment aspect of the Professional Competence which meant that she could not progress through and complete Phase 11 of the B.A. in Applied Policing in circumstances where the attainment of the BA in Applied Policing is a necessary requirement to progress through a Garda's probationary period and to become an efficient and effective member of An Garda Síochána.

STATUTORY FRAMEWORK

14 . As in Fahy, the key legislative provisions at play in these proceedings is Regulation 12 of the 2013 Regulations.

15 . Regulation 12(4) of the 2013 Regulations provides as follows:

“Where a probationer has not demonstrated to the satisfaction of the Commissioner an ability to perform the functions of a member efficiently and effectively or otherwise to conduct himself or herself in a manner befitting a member, the Commissioner may, if he or she considers it necessary or expedient for the purpose of ascertaining whether the probationer concerned will demonstrate such ability, direct, on or before the expiration of the probationer's probationary period, that the probationers probationary period be extended for such further period as may be specified in the direction.”

16 . Regulation 12(8)(a) of the 2013 Regulations provides as follows:

“(8) (a) The Commissioner may, at any time, subject to the provisions of this Regulation, having assessed the suitability of a probationer for retention in the Garda Síochána, dispense with the services of the probationer if he or she considers that— (i) that probationer is not suited, physically or mentally, to performing the functions of a member, or (ii) having regard to one or more of— (I) the performance of that probationer, (II) the behaviour of that probationer, (III) assessments made by that probationer's Superintendent of the matters specified at (I) or (II) or of matters...