New guard still in limbo despite winning challenge to dismissal by commissioner over fitness test

A garda who last year won a legal action preventing her dismissal over failing to pass a fitness test has not been reinstated to duty, the High Court has heard.

ublin-based Garda Orlaith Fahy succeeded in quashing the Garda Commissioner’s decision to dismiss her after Mr Justice Max Barrett ruled the decision to dismiss her as a probationary garda was unlawful.

Garda Fahy, who was stationed at Finglas and Blanchardstown, graduated and commenced her career as a trainee Garda in 2016.

Her period of probation was extended to allow her to pass a specific fitness test which she had failed on several occasions, after she sustained an injury.

Arising out of the failures, the commissioner decided in February 2020 to dispense with her services.

In his ruling Mr Justice Barrett held that the commissioner did not act lawfully and had effectively dismissed her as a probationary guard when she was no longer a probationer.

On Monday, Mr Justice Charles Meenan was told by Garda Fahy’s counsel Mark Harty SC that despite Mr Justice Barrett’s decision last July his client has not been reinstated.

Counsel said that Garda Fahy’s solicitors have written to the Commissioner about the matter.

The only response they have received are holding letters informing her that the matter is “with the legal department”.

Counsel said his client has been out of work for the last two years and the commissioner’s response is untenable and extreme in character.

Given the period of time that has elapsed it was her case that Mr Justice Barrett’s decision is being undermined and ignored by the Commissioner, it is argued.

Arising out of the failure to reinstate her, counsel said fresh judicial review proceedings seeking an order directing the commissioner to immediately reinstate her have had to be taken.

In her action, she also seeks an order that her salary, allowances, pension contributions, arrears and other benefits also be immediately reinstated.

She further seeks declarations including that the commissioner has unlawfully and wrongfully interfered with her career and has breached her employment and constitutional rights.

Counsel agreed with Mr Justice Meenan’s description of Garda Fahy’s situation as being “left in limbo.”

He was satisfied, on an ex-parte (one side only represented) basis, to grant Garda Fahy permission to be fresh proceedings against the Commissioner.

Noting the responses received by her solicitor the Judge said the situation from Garda Fahy’s perspective was “not a satisfactory position to find herself in.”

The case comes back later this month.

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