Roche v The Commissioner of An Garda Siochana (Approved)

Factual and Procedural Background

These proceedings concern a judicial review initiated by the Plaintiff challenging the decision of the Defendant, made under the Garda Síochána (Admissions and Appointments) Regulations, 2013 ("the 2013 Regulations"), to dispense with the Plaintiff's services as a member of An Garda Síochána. The central factual dispute revolves around whether the Plaintiff was lawfully a probationer at the time the Defendant issued a notice proposing to terminate her employment pursuant to Regulation 12(8)(a) of the 2013 Regulations. This depends on whether the Plaintiff’s probationary period had been lawfully extended when the termination decision was made.

The Plaintiff began training in June 2016, became a sworn member in April 2017, and entered a probationary period thereafter. During probation, she repeatedly failed a physical competence test component ("bleep test") required for her B.A. in Applied Policing, which is necessary to progress in her career. Despite multiple attempts and appeals, she was ultimately removed from the B.A. programme and subsequently served with a notice proposing dismissal in September 2019. Her probationary period was extended multiple times between April 2019 and January 2020 pursuant to Regulation 12(4), with the final discharge notice issued in March 2020 citing her failure to pass the required fitness assessments.

Legal Issues Presented

1. Whether the Plaintiff was a probationer at the time the Defendant issued the notice proposing to dispense with her services under Regulation 12(8)(a).
2. Whether the extensions of the Plaintiff's probationary period under Regulation 12(4) were lawfully exercised.
3. The proper interpretation and application of the extension powers under Regulations 12(4), 12(9), and 12(10) of the 2013 Regulations, particularly in light of the decision in Fahy v. The Commissioner of An Garda Síochána [2021] IEHC 440.

Arguments of the Parties

Applicant's Arguments

• The Plaintiff relied on the decision in Fahy, arguing that at the time she received the Regulation 12(8)(a) notice, her probationary period had expired, removing the statutory power to dismiss her as a probationer.
• She contended that the Defendant could no longer lawfully exercise the power to extend her probation or dismiss her under the probationary provisions once the probation had expired.

Respondent's Arguments

• The Defendant argued that the Fahy decision was distinguishable on the facts and that the power to extend the Plaintiff’s probationary period under Regulation 12(4) was lawfully exercised in this case.
• The Defendant maintained that the extensions served different purposes than those contemplated in Fahy and that the Plaintiff’s probationary period was validly extended at all relevant times, including after the Regulation 12(9) notice was served.
• It was asserted that the Regulation 12(4) power is a broad discretionary power to extend probation to ascertain whether a probationer can demonstrate the required ability, whereas Regulation 12(10) is a narrower, mandatory power to extend probation solely to allow a probationer to make submissions or obtain legal advice following a dismissal proposal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed statutory interpretation of Regulations 12(4), 12(9), and 12(10) of the 2013 Regulations, emphasizing their distinct purposes and the different contexts in which each applies.

Regulation 12(4) grants the Defendant a broad discretionary power to extend a probationary period when it is "necessary or expedient" to ascertain whether a probationer can demonstrate the required ability to perform their functions efficiently and effectively. This power is not limited in time except by an overall maximum probation period of three years.

In contrast, Regulation 12(10) is a mandatory and narrowly defined power to extend the probationary period for a maximum of 28 days, strictly for the purpose of allowing the probationer to make submissions or obtain legal advice following a notice under Regulation 12(9) proposing dismissal.

The Court distinguished the facts of this case from those in Fahy, where the probationary period was due to expire during the 28-day submission period, necessitating an extension under Regulation 12(10). Here, the Plaintiff’s probationary period had already been extended beyond the 28-day submission window at the time the Regulation 12(9) notice was served, making an extension under Regulation 12(10) unnecessary and inappropriate.

The Court reasoned that the Defendant lawfully exercised the Regulation 12(4) power to extend the probationary period to consider the Plaintiff’s submissions and assess her suitability. It rejected the Plaintiff’s argument that the Fahy decision precluded such extensions after a Regulation 12(9) notice, holding that Fahy was fact-specific and did not address the scenario where submissions are made within an already extended probation period.

Further, the Court noted that the Defendant’s failure to argue fully in Fahy deprived that Court of the benefit of argument on the scope of the extension powers, justifying a different conclusion here based on fuller submissions and differing facts.

Holding and Implications

The Court DISMISSED the Plaintiff’s claim and refused the relief sought.

The holding confirms that the Defendant lawfully extended the Plaintiff’s probationary period under Regulation 12(4) and validly terminated her employment as a probationer. The Court clarified the distinct functions and applications of Regulations 12(4) and 12(10), emphasizing that the mandatory extension under Regulation 12(10) applies only when necessary to secure the probationer’s right to make submissions within 28 days following a dismissal proposal.

This decision does not overturn Fahy but distinguishes it on factual grounds, limiting its ratio to the specific circumstances of that case. No new precedent was established beyond this factual differentiation. The ruling reinforces the Defendant’s discretionary authority to extend probation for assessing competence beyond procedural submission periods, provided statutory limits are respected.