The High Court quashed the Garda Commissioner’s decision to dismiss Orlaith Fahy, ruling that her probation had been extended under the wrong regulation after the Commissioner began proceedings to dispense with her services.
In a judgment comprising an interim decision and an addendum, Mr Justice Max Barrett found that the Commissioner acted unlawfully by relying on regulation 12(4) to extend Fahy’s probation in August 2019. The court held that once the Commissioner had issued a notice proposing dismissal under regulation 12(9), any extension had to be made under regulation 12(10), which permits an extension of up to 28 days to allow the probationer to make submissions or obtain advice.
Fahy, a fully attested Garda who was still classified as a probationer because of her length of service, failed the Garda College Phase II fitness assessment six times between May 2017 and December 2018. She was removed from the BA in Applied Policing programme after exhausting the opportunities to repeat the assessment. The Commissioner issued a notice proposing to dispense with her services in July 2019 and invited submissions. He decided in February 2020 to dismiss her, citing her inability to complete the degree and the fitness requirement.
The Commissioner had extended Fahy’s probation for three months in August 2019, after the notice, under regulation 12(4). The Minister for Justice and Equality later consented to a further three-month extension in November. The court concluded that the August extension should instead have been made under regulation 12(10). It reasoned that the subsequent extension depended on a valid extension already in place; without one, Fahy’s probation had ended and she could not be dismissed as a probationer under regulation 12(8).
The issue was addressed in an addendum after the interim judgment. The Commissioner argued that the point was not properly before the court and declined to make submissions on its substance. The judge found it arose from Fahy’s pleaded case and that the parties had been given an opportunity to address it.
The court granted an order of certiorari quashing the February 2020 dismissal, and declarations that the Commissioner misapplied or misconstrued the 2013 regulations and acted unlawfully in using regulation 12(4) instead of 12(10) after issuing the notice. The judgment does not order Fahy’s reinstatement or determine what further action, if any, followed.