The High Court has dismissed a former Garda’s judicial review challenge to the extensions of her probationary period and her subsequent discharge from An Garda Síochána. Ms Justice Siobhán Phelan ruled that the case was distinguishable from an earlier decision concerning a different probationer, Fahy v the Commissioner of An Garda Síochána.
The applicant, Emma Roche, joined the Garda training college in Templemore in June 2016 and became a sworn member in April 2017. She repeatedly failed the bleep-test component of a physical competence assessment, including on six attempts, and was removed from the BA in Applied Policing programme. The judgment said completing that programme was necessary to progress through probation and become an effective Garda member.
The Commissioner notified Roche in August 2019 of a proposal to dispense with her services and gave her 28 days to make submissions. She submitted them on 25 September. Her probation had already been extended to 24 October 2019, so the 28-day submissions period fell within the existing extension. The Commissioner later extended her probation again, including to allow time to consider her submissions and assess her suitability. She was discharged by notice dated 26 March 2020.
Roche argued, relying on the 2021 Fahy judgment, that after a notice proposing dismissal was issued, the Commissioner could not use the general extension power under Regulation 12(4). She contended that her probation had therefore expired and that the power to dismiss her as a probationer was no longer available. The Commissioner argued that the extensions were lawful and that Fahy was distinguishable because, in that case, the probation period was due to expire during the 28-day period for submissions.
Justice Phelan found that Regulations 12(4) and 12(10) serve different purposes. Regulation 12(10) provides for an extension, where necessary, to allow a probationer to make submissions or obtain advice after receiving a proposed-discharge notice. Regulation 12(4) allows an extension where the Commissioner needs time to assess whether a probationer may demonstrate the required ability and conduct.
Because Roche’s existing extension ran beyond the submissions deadline, the court found no further extension was necessary under Regulation 12(10) to give her the 28 days. The later extensions were made to allow the Commissioner to consider her submissions and assess her suitability, purposes the judge found permitted under Regulation 12(4). The court held that Fahy did not prevent use of that power in every case after a proposed-discharge notice.
The court concluded there was no unlawful extension and no unlawful termination on the basis that Roche was no longer a probationer. It refused the relief sought and dismissed the proceedings. The judgment did not order reinstatement or otherwise alter the discharge decision.