Decision to dismiss probationary garda over fitness test quashed by High Court

In February 2020, the Garda Commissioner notified her of his decision to "dispense with her services" after she had failed fitness tests six times
Decision to dismiss probationary garda over fitness test quashed by High Court

A decision to dismiss a probationary/trainee garda following her failure to pass fitness tests has been quashed by the High Court.

Orlaith Fahy had been stationed at Finglas and Blanchardstown Garda Stations in Dublin during her probationary period since 2016.

In February 2020, the Garda Commissioner notified her of his decision to "dispense with her services" after she had failed fitness tests six times.

Mr Justice Max Barrett noted she plays camogie in her local team, does long distance charity cycles and attained a level of fitness that would be "the envy of many", but unfortunately sustained an injury and she failed the fitness tests, which ultimately resulted in her dismissal.

She brought judicial review proceedings against the Commissioner claiming he had not acted in accordance with law in dismissing her as he did.

In an interim judgment quashing the decision, the judge also granted her a declaration the Commissioner had misapplied and/or misconstrued the relevant provisions of the Garda Síochána (Admissions and Appointments) Regulations 2013.

Misapplication

Through that misapplication, the Commissioner did not act lawfully when he proceeded under a particular regulation rather than another which meant he unlawfully used her purported probationary period to facilitate a purpose or objective not authorised by the regulations of 2013, he said. That meant she was dismissed as a probationer garda when she was no longer a probationer.

The judge said however that before finalising his judgment he wanted submissions from the parties in relation to arguments about the application under the regulations of extensions to her probationary period before the dismissal decision was taken.

While this ostensibly seemed to have the potential to "flip" the result in the Commissioner's favour, the judge emphasised the court had reached no final conclusion in relation to it, and it was not an invitation to appeal the interim judgment. The court would add an addendum to the interim judgment and the parties could appeal that if they so wished.

Studying for BA

He also said it should be clear to the parties from his interim judgment that, save for the potential issue yet to be decided, the court saw no legal deficiency in the Commissioner's actions including that there was nothing to suggest a pre-determined decision as alleged by Ms Fahy.

In her action, Ms Fahy said she was studying for a BA in Applied policing but after failing a fitness test she was told last February that as she was now ineligible to complete the BA course, this was "an essential prerequisite" to becoming a garda.

She claims there is no provision in the garda regulations entitling the Commissioner to deem the attainment of the BA is an essential prerequisite.

It was argued she performed her duties with distinction, demonstrating exceptional proficiency and completed her period of service, on probation, with an unblemished record.

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