High Court dismisses judicial review of probation termination where performance and conduct assessments were negative.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 535

Record No. 2024/797 JR

BETWEEN/

PEO MOSEPELE

APPLICANT

AND

MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 3rd day of October 2025 CONTENTS

I. INTRODUCTION............................................................................................................ 3 Preliminary ............................................................................................................................ 3 Background ........................................................................................................................... 5 Contractual probationary period .......................................................................................... 6

II. THREE-MONTH PROBATION REVIEW ................................................................ 10

III. PERIOD LEADING UP TO SIX-MONTH ASSESSMENT ..................................... 13 Formal meetings from 16th November 2023 ...................................................................... 14 19th December 2023 ............................................................................................................. 15

IV. SIX-MONTH PROBATION REVIEW ....................................................................... 16 E-mail dated 28th December 2023 ...................................................................................... 21 Comment 1 ....................................................................................................................... 26 Comment 2 ....................................................................................................................... 26 Comment 3 ....................................................................................................................... 27 Comment 4 ....................................................................................................................... 27 Comment 5 ....................................................................................................................... 28 Comment 6 ....................................................................................................................... 28 Comment 7 ....................................................................................................................... 28 Comment 8 ....................................................................................................................... 29

V. PERIOD BETWEEN THE SIX-MONTH & NINE-MONTH REVIEWS ............... 29 Communications ................................................................................................................. 29 Staff management ............................................................................................................... 31 Conduct................................................................................................................................ 36

VI. NINE-MONTH PROBATION REVIEW .................................................................... 37 Nine-month probation review meeting & report: 7th March 2024 .................................... 40 Civil Service Appeals Board ............................................................................................... 48 Statement of Appeal ............................................................................................................ 48 Response from the line manager ........................................................................................ 62 The report of the Appeals Board dated 31st May 2024 .......................................................... 64 File sent to the Secretary General ...................................................................................... 67

Decision of the Secretary General dated 5th June 2024 .................................................... 71

VII. DISCUSSION AND DECISION........................................................................... 74 Civil Service Regulation Act 1956 (as amended) ............................................................... 74 Nonstatutory appeals process ........................................................................................... 78 The applicable legal test ...................................................................................................... 81 Application of the test ......................................................................................................... 82

VIII. CONCLUSION ...................................................................................................... 94

IX. PROPOSED ORDER .................................................................................................... 95

X. APPEARANCES ............................................................................................................ 96

I. INTRODUCTION

Preliminary

1. In this application by way of judicial review, Ms. Mosepele (“the applicant”) seeks to challenge the decision of the Secretary General of the Department of Justice made on 5th June 2024 to terminate her appointment on a probationary contract to the position of Senior Legal Researcher and her reappointment to her previous position of Legal Researcher pursuant to the provisions of section 7(b) of the Civil Service Regulation Act 1956, as amended (“the 1956 Act”).

2. In summary, and whilst this is explored in more detail in this judgment, the sequence of events was as follows.

3. The applicant formally commenced the role of Senior Legal Researcher on 14th August 2023 and was appointed to the Criminal Justice Service Delivery Division of the Department of Justice (having transferred from the Civil Legislation Division). (The applicant states that this was an entirely different division to the one for which the post had been advertised).

4. At the end of the first period of review (September 2023) she received a satisfactory assessment; at the end of the second period of review (December 2023) she received an unsatisfactory assessment; and at the end of the third and final period of review, she received an unsatisfactory assessment.

5. Accordingly, her line manager recommended that her appointment as a Senior Legal Researcher be terminated and that she revert to her previous position of Legal Researcher.

6. The applicant successfully invoked a non-statutory and non-binding appeal process which recommended that she be appointed to the Principal Officer post of Senior Legal Researcher. The matter was sent to the Secretary General of the Department of Justice for final decision and the Secretary General decided on 5th June 2024 to terminate the applicant’s appointment on a probationary contract to the position of Senior Legal Researcher and that she be reappointed to her previous position of Legal Researcher.

7. By order of the High Court (Hyland J.) dated 15th July 2024, the applicant was granted leave to apply for judicial review. The Amended Statement of Grounds was verified in the first Affidavit of Ms. Mosepele sworn on 19th June 2024 (including exhibits) and confirmation of service was set out in Ms. Mosepele’s Affidavit of service sworn on 25th July 2024.

8. The Statement of Opposition is dated 27th November 2024 and is verified in the Affidavit of Elaine Loftus, Assistant Principal Officer in the Human Resources section of the Department of Justice sworn on 27th November 2024. A further Affidavit of Ms. Loftus is sworn on 27th November 2024 in reply to Ms. Mosepele’s Affidavit of 19th June 2024 and sets out a number of exhibits. An additional verifying affidavit is sworn by Nessa O’Doherty, Principal Officer in the Department of Justice, on 27th November 2024. Ms. O’Doherty was the line manager of the applicant and the person who conducted the periodic probation assessment.

9. Ms. Mosepele swore a replying Affidavit on 5th December 2024 in response to the Statement of Opposition and to the Affidavits of Nessa O’Doherty and Elaine Loftus sworn on 27th November 2024.

10. Ms. O’Doherty swore an Affidavit on 13th January 2025 in response to Ms. Mosepele’s Affidavit of 5th December 2024.

11. Neither party applied to cross-examine the respective deponents.

Background

12. On 12th July 2021, the applicant commenced employment in the Department of Justice as a Legal Researcher (Administrative Officer or “AO”). She had successfully completed the probation the following year without any issues or concerns in relation to her performance. Prior to the completion of her probation, the applicant had successfully applied for funding from the Department of Justice to undertake the Barrister-at-Law degree in the Honorable Society of Kings Inns. She subsequently qualified as a barrister. Her application to the Barrister-at-Law degree had been supported by her then line manager (Assistant Principal) and manager (Principal Officer), both of whom gave the applicant references and spoke highly of the applicant’s quality of work and interpersonal communication skills.

13. In or around January 2023, the applicant applied for the position of Senior Legal Researcher in the Department of Justice which was an open competition. The position was advertised as being in the Immigration Service Delivery (“ISD”) division of the Department of Justice. A circular for the competition outlined the key duties of the role which related to the work of the ISD. The process of assessment was competency based and these competencies included leadership, analysis and decision-making, management and delivery of results, interpersonal and communication skills, drive and commitment, specialist knowledge, expertise and self-development. Following a competitive shortlisting and interview process, the applicant was successful and was offered the role of Senior Legal Researcher, commencing with effect from 7th June 2023.

Contractual probationary period

14. The applicant was offered a probationary contract of employment under cover of a letter dated 9th May 2023 to the position of established Senior Legal Researcher assigned to the Department of Justice, subject to terms and conditions.

15. One of the terms and conditions was outlined was at paragraph (4) Probationary Review, as follows:

“(4) Probationary Review

During the period of your probationary contract, your performance will be subject to review by your Manager(s) to determine whether you:

(i) have performed in a satisfactory manner,

(ii) have been satisfactory in general conduct, and

(iii) are suitable from the point of view of health with

particular regard to sick leave.

Prior to completion of the probationary contract, a decision will be made as to whether or not you will be retained pursuant to Section 5A(2) of the Civil Service Regulations Acts 1956-2005[1]. This decision will be based on your performance assessed against the criteria set out in (i) to (iii) above.

The details of the probationary process will be explained to you by your employing department.

In the event that you are not considered as suitable to the position of Legal Researcher having been assessed against stated criteria, you will be notified in writing of the action to be taken prior to the expiry of this contract and any extensions thereof.”

16. The applicant in fact did not commence her duties as a Senior Legal Researcher until 14th August 2023 having continued in her former role as Legal Researcher until this had been filled. The applicant, therefore, performed the role and duties of a Legal Researcher for nearly two months after her promotion to the position of Senior Legal Researcher had commenced.

17. The central issue in this application for judicial review is whether or not the decision of the Secretary General of the Department of Justice made on 5th June 2024, to the effect that she was satisfied that the applicant had failed to fulfil the conditions of probation The 1956 Act.

and terminated her appointment as a Senior Legal Researcher (and reappointed her to the position of Legal Researcher), was made in a manner which was bona fide, factually sustainable, not unreasonable and intra vires.

18. The conditions of probation attaching to the applicant’s position related to the assessment and determination by Ms. Nessa O’Doherty (the applicant’s “line manager”), during the period of her probationary contract, as to whether the applicant performed in a satisfactory manner and whether her general conduct was satisfactory.

19. The applicant was assessed, as part of the probation review period, at three-month, sixmonth and nine-month reviews carried out by her line manager.

20. These three probation review periods were as follows: (i) the first three-month review assessed the applicant between 7th June 2023 to 6th September 2023; (ii) the second sixmonth review period covered her assessment between 7th September 2023 to 6th December 2023; (iii) the final nine-month assessment occurred between 7th December 2023 to 6th March 2024.

21. The line manager described her area of responsibility as principal officer in Service Delivery in the Department of Justice as including management of requests for Mutual Legal Assistance (“MLA”), extradition and European Arrest Warrants and trade and cooperation agreement warrants, applications for temporary release from prison, applications for temporary release from the Central Mental Hospital, governance responsibility for the Criminal Law (Mental Health) Review Board and the Private Security Appeal Board and the appointment of peace commissioners.

22. She stated that she managed six Assistant Principal staff members or equivalent (including the role of Senior Legal Researcher) directly and that her team comprised of up to 35 staff members. In her evidence before the Appeals Board, the line manager stated that in answer to a question by the Chairperson, that she had managed staff members on probation on approximately twelve occasions and the applicant was the only one who had failed probation.

23. As line manager, she had been informed in early August 2023 that the applicant was being assigned to her team in Service Delivery. As already mentioned, the applicant had worked approximately seven weeks of her probation in her previous role of Legal Researcher upon her promotion to the role of Senior Legal Researcher on 7th June 2023.

24. By telephone call in or around 8th August 2023, the line manager gave the applicant an outline of the team, some background reading and directions regarding ICT setup and told her that she could work from home on her first day which was to be 14th August 2023, as most of her colleagues would be working from home on that day. The Department operated a blended working policy with an expectation of three days per week spent in the office for those working in the Service Delivery area and the line manager stated that she tended to be in the office at least four days per week to maximise her in-person availability to her staff. She stated that when the applicant first came into the office, she met with her and brought her to meet her team and her new colleagues.

25. She describes that during that first week she went through the job specification with the applicant and answered any questions the applicant had and this included a meeting with the applicant, her immediate predecessor in the post and another assistant principal in the area in order to go through the job specification in detail.

26. She states that she also held a meeting with the applicant, the applicant’s predecessor and a member of her new team to go through an outline of the work relating to European Arrest Warrants, including the relevant procedural manual in use. The applicant states that from her perspective her training was given by her predecessor in the role and not her line manager.

27. In her affidavit sworn on 27th November 2024, Ms. O’Doherty stated at paragraph 13 that “[t]he practice in the Department of Justice is that the initial period in any new role is primarily spent learning on-the-job. I see my direct reports daily (when they are in the office), and sometimes several times per day, in order to provide direction and guidance, to be available for queries and to get updates. When working from home, I tend to be in touch frequently. I consistently made it clear to Ms. Mosepele that I expected regular engagement with her and for her to consult with me before taking any significant actions. In addition, I offered to teach her various competency-based skills such as staff management, and how to use various software.”

II. THREE-MONTH PROBATION REVIEW

28. The applicant’s three-month probation review covered the period from 7th June 2023 (effectively 14th August 2023) to 6th September 2023.

29. On 6th September 2023, the line manager completed the applicant’s three-month probation review with effect from 14th August 2023, when she had in fact commenced her role as Senior Legal Researcher in Service Delivery (having worked in her previous role for a period of about seven weeks). The applicant was given a “satisfactory” rating and the assessment stated as follows:

“3 Month Assessment (07 Jun 2023 – 06 Sep 2023)

Performance

Work performed accurately and effectively? Yes

Work is of good quality, well executed, and meets deadlines? Yes

Works well with colleagues, and is part of the team? Yes

Demonstrates the required ability to perform all the duties of Yes the role?

Sick Leave

Has the jobholder complied with sick leave requirements? Yes

Number of certified sick days (since Probation began) HR 0.00

records show 0 days

Number of uncertified sick days (since Probation began) HR 0.00

records show 0 days

Attendance and Punctuality

Has the Jobholder complied with Annual Leave Regulations? Yes

Has the Jobholder complied with Flexi-time requirements? Yes

Number of morning and evening infringements (since 0

Probation began)

General Conduct

Has the Jobholder conduct been satisfactory in all regards? Yes

Assessment

Have you

discussed this

assessment Yes

with the staff

member?

I can confirm

that the

jobholder’s Satisfactory

performance

is

Peo was asked to remain in Civil Legislation until a

replacement was found and so she worked at Senior

Legal Researcher level there before moving to Service

Delivery with effect from 14 August 2023. I have been

Comments impressed with how well Peo has settled into her new

role here. She has made great efforts to build up her

knowledge of the extensive legislation in this area and

to develop a strong relationship with her peers and her

team. She demonstrates attention to detail and

consistently strives to perform well. I am confident

that she will be a considerable asset to me and to the

Service Delivery team as a whole.”

30. It can be seen from the above assessment that the line manager’s comments in relation to the applicant’s three-month review were positive and she stated that she had been “impressed with how well Peo has settled into her new role here. She has made great efforts to build up her knowledge of the extensive legislation in the area and to develop a strong relationship with her peers and her team. She demonstrates attention to detail and consistently strives to perform well. I am confident she will be a considerable asset to me and to the Service Delivery team as a whole.”

III. PERIOD LEADING UP TO SIX-MONTH ASSESSMENT

31. The six-month assessment covered the period from 7th September 2023 to 6th December 2023. This six-month probation review resulted in the applicant being given an “unsatisfactory” rating.

32. The following issues are discussed in the affidavits of Ms. Nessa O’Doherty, sworn on 27th November 2024 (and also on 13th January 2025). It is noted that the applicant rejects many of the matters which are set out in Ms. O’Doherty’s affidavit and inter alia sets out matters from her perspective in: (i) the email of 28th December 2024 sent by the applicant to Ms. O’Doherty (to which she attached two documents which contained a rebuttal of Ms. Doherty’s six-month assessment, which are set out below);

(ii) her Statement of Appeal sent to the Appeals Board (which is set out later in this judgment); and (iii) her two affidavits (sworn on 19th June 2024 and 5th December 2024 respectively).

33. During the period between 6th September 2023 and 16th November 2023, the line manager stated that “over time”, she became concerned at the applicant’s lack of progress, her poor performance, her clear lack of initiative, her inability/unwillingness to answer questions raised by her, her poor engagement with her, her apparent unwillingness to initiate contact/engagement with her as her line manager.

34. She stated that she was concerned at the fact that the applicant clearly appeared to be still dependent on her predecessor and that on a number of occasions the applicant was unable to brief her or respond to questions she posed in relation to cases in her area of work without her predecessor’s assistance.

35. The line manager stated “at that time” her view of the applicant’s unsatisfactory performance was also informed by the fact that numerous tasks that she had asked her to do were uncompleted, or not completed properly; very few items on her job specification had been previously explored by her or at least not without repeated prompting from the line manager; the applicant had requested that the line manager assign responsibility for one of her areas of work (eEvidence) to another colleague; the applicant had refused to undertake instructions that the line manager had given such as learning in person from case officers in the Mutual Legal Assistance2 area; the applicant could not answer questions from the line manager on her work, and the applicant did not familiarise herself with aspects of her role.

36. In her replying Affidavit sworn on 5th December 2024, the applicant does not accept and rebuts the line manager’s statements as just outlined.

Formal meetings from 16th November 2023

37. The line manager states that in response to these concerns, she began from 16th November 2023 to meet formally with the applicant to discuss her performance and progress on probation. She states that she informed the applicant that her performance to date had not been satisfactory and that she gave examples, including the applicant’s over-reliance on her predecessor, poor communication with her as line manager, a lack of initiative in terms of doing specific parts of her role, reluctance to take responsibility This term is also referred to in this judgment as “MLA”.

in relation to some Mutual Legal Assistance-related work and errors in e-mails that she had written.

38. The line manager states that from 16th November 2023 she proposed fortnightly formal meetings in relation to the applicant’s performance, which were in addition to her expectation of regular informal contact in relation to the applicant’s job functions. She states that in particular she again asked that the applicant discuss her cases with her and she states that she reminded the applicant of the need to progress Subject Access Requests promptly.

39. The line manager states that while there were some small improvements after she commenced these formal performance meetings, she had continuing significant concerns in relation to these issues, which lead to the unsatisfactory rating of the applicant in her six-month probation review, which was completed on 24th December 2023 (the period having ended on 6th December 2023).

40. In her replying Affidavit sworn on 5th December 2024, the applicant again rejects the line manager’s account of what transpired during this period.

19th December 2023

41. The line manager states that on 19th December 2023, which was after the date of the six-month assessment and was at the beginning of the nine-month assessment period (which began on 7th December 2023), she met with the applicant and explained to her that she had not sufficiently demonstrated the required level of performance for her role in her sixth-month assessment.

42. However, the line manager states that she informed the applicant that she had seen some improvements in recent weeks and that if the applicant improved her performance in the areas that had been highlighted and engaged appropriately with her, she was hopeful that she would pass her nine-month probation review.

43. The line manager states that she gave examples of her poor performance and discussed them with the applicant giving her an opportunity to respond.

44. Whilst she thought that the applicant appeared to accept what she had said to her at that time, later, on 28th December 2023, the applicant emailed the line manager with a word document “outlining which part of the assessment [she] [did] not agree with” and saying that she was going to contact Human Resources (“HR”) because she viewed the assessment as “overall very unbalanced”. Additionally, in her replying Affidavit sworn on 5th December 2024, the applicant reiterates that she has “never agreed with her allegations and expressed this disagreement to Ms. O’Doherty and to Ms. Loftus by email on 28th December 2023”.

IV. SIX-MONTH PROBATION REVIEW

45. The applicant’s six-month probation review covered the period from 7th September 2023 to 6th December 2023 and the table was completed by the line manager on 24th December 2023, as follows:

“6 Month Assessment (07 Sep 2023 – 06 Dec 2023)

Performance

Work performed accurately and effectively? No

Work is of good quality, well executed, and meets deadlines? No

Works well with colleagues, and is part of the team? Yes

Demonstrates the required ability to perform all the duties of No the role?

Sick Leave

Has the jobholder complied with sick leave requirements? Yes

Number of certified sick days (since Probation began) HR 0.00

records show 0 days

Number of uncertified sick days (since Probation began) HR 0.00

records show 0 days

Attendance and Punctuality

Has the Jobholder complied with Annual Leave Yes

Regulations?

Has the Jobholder complied with Flexi-time Not

requirements? applicable

Number of morning and evening infringements (since 0

Probation began)

General Conduct

Has the Jobholder conduct been satisfactory in all regards? No

Assessment

Have you

discussed this

assessment Yes

with the staff

member?

I can confirm

that the

jobholder’s Unsatisfactory and needs to show improvement

performance

is

Peo is a friendly, cheerful and pleasant member of the

team and is building a good relationship with her staff.

She is bright and interested in the overall area of

criminal justice. Her detailed job specification was

Comments provided to her on arrival in the area and it was

discussed with her in detail – it encompasses work on

a range of work areas including extradition/European

arrest warrants and mutual legal assistance (MLA)

(including eEvidence) as well as a range of areas on

which she is expected to provide legal research

related support. Unfortunately, she has struggled to

make the leap from Legal Researcher (AO) to Senior

Legal Researcher (AP) and has not demonstrated

initiative or appropriate assertiveness. Peo has been

over-reliant on the AP who was her predecessor in the

Extradition/EAW area and, other than some minor

exceptions, has not been taking the initiative herself in

terms of researching cases/precedents/procedures

sufficiently. Over most of the past three months, she

has also tended to focus on her work in

extradition/European arrest warrants and has not

made sufficient constructive efforts to engage in the

other areas of her job specification nor has she

attempted to get [to][sic.] know the procedures or staff

involved in MLA to any great extent. In fact, Peo

suggested to me – in the company of two other APs –

that she felt that the work on eEvidence should not be

assigned to her as she had no direct operational

experience in that regard; raising her concern/view in

this regard in an inappropriate manner was not

satisfactory. It was also inappropriate that she would

seek to remove herself from an important area of work

when it had already been explained to her that, as a

Senior Legal Researcher, she would be expected to

familiarise herself with the legislative provisions and

with an overview of the procedures in relation to MLA.

When I asked Peo why she had not approached me

directly, on a one-to-one basis, to discuss her view,

she said that when she was in her previous (Legal

Researcher/AO) role, she was told not to approach the

Principal Officer; however, I am available to all my

staff, leave the door of my office open, respond quickly

to IMs or phone calls, visit the APs at their desk to

discuss work and check in frequently with them so I do

not find that to be an acceptable reason. Otherwise, in

her enthusiasm to get emails issued, Peo quite

frequently sends emails with errors/omissions and

then sends follow up emails to correct the errors; I

have asked Peo to take more time and care to double

check the initial emails instead, as sending multiple

emails in that manner reflects poorly on the team and

also takes up the recipient’s time to read additional

emails. Soon after Peo’s arrival in my team, I had

asked her to design some basic training on legal issues

that she could deliver to the staff in the function –

despite several reminders by me, nothing had been

forwarded/raised by Peo to me in this regard which

was very disappointing. Furthermore, in respect of a

case concerning the UAE, I asked Peo to provide me

with briefing on the background to the case, a copy of

the letter which she told me needed to be signed

urgently by me and an update on the case – I had asked

her three times before this was provided – however,

she then provided me with no background or update,

shrugged when I asked for clarification, and the copy

of letter she gave to me and her copy was stapled in

the wrong order – as a result I could not understand

what was involved; when asked to address this, Peo

brought her predecessor to my office and he explained

all the necessary details. This situation was not

satisfactory and showed a lack of research, initiative

and attention to detail by Peo. Growing concerns by

Peo’s overall performance, I instigated formal

meetings with her on a fortnightly basis (subject to

availability by both of us) from mid-November. At

those meetings, I have discovered that Peo had done

some small amounts of research that she had not

previously mentioned to me – while this is welcome, I

have explained that Peo needs to be more forthcoming

in terms of communicating clearly with me. Since the

first of these formal meetings, I have seen a clear

improvement in Peo’s performance, with some

evidence now of improving initiative. For example, at

my request, she has consulted with colleagues and has

provided an outline of some training classes that she

could give to staff of the function. She is also making

efforts to get to know her colleagues, both in the

function and in related agencies. She is also making

more effort to reduce her reliance on her predecessor

and to engage more with the MLA-related work. She

also did well in recent weeks in terms of managing a

response to a subject access request. Unfortunately,

overall across the past three months, Peo has not

reached the standard expected of a Senior Legal

Researcher at the six month stage; therefore, I am

giving her an unsatisfactory rating on her six month

probation form. Both at our meeting since mid-

November and more informally since her three month

report, I have provided Peo with clear feedback on

areas where she needed to improve. Probation is

based on attendance, conduct and performance and

there will need to be a significant and sustained

improvement in the areas I have highlighted to her in

order for her to achieve a satisfactory rating at her

nine month probation review. I have advised Peo that

if she does not meet the standards required and fails

to improve, this could result in a recommendation that

her appointed as a Senior Legal Researcher be

terminated. However, I would also note that that in

view of the progress and effort made by Peo in the past

few weeks, I am aware that she is capable of achieving

the standard required and I am hopeful that she will

continue the good work that she has been doing in the

past few weeks in that regard.

46. As mentioned, after their meeting on 19th December 2023 to discuss why the line manager was giving the applicant an unsatisfactory rating for her 6-month probation review, the following e-mail exchange occurred between the parties.

E-mail dated 28th December 2023

47. By e-mail dated 28th December 2023, sent at 1:28pm, the applicant stated, inter alia, that she did not agree with a lot of the comments in the e-Probation assessment and felt that it was an unbalanced assessment of how she had performed overall since commencing the job as Senior Legal Researcher.

48. The email, inter alia, stated that:

“Please note that I am going to contact the local HR in relation to this assessment. This is because I feel that it is overall very unbalanced and there is the potential for me to lose my job in a couple of months because of the assessment. I look forward to working with you more and discussing this with you in the New Year”.

49. In this email to the line manager dated 28th December 2023, two documents are attached.

50. The applicant produced a word document entitled Senior Legal Researcher Outline of works areas in International Cooperation area of Criminal Justice Service Delivery was sub-headed by reference to a series of “Goals”, where the document set out the ‘goal’ and how the applicant had achieved each one by way of rebuttal in relation to the assessment of the line manager.

51. The ‘goals’ were grouped under the following sub-headings: Goal 1: European Arrest Warrant (EAW); Goal 2: Extradition; Goal 3: Digital Cooperation on Criminal Matters;

Goal 4: legislative framework under Mutual Legal Assistance (MLA); Goal 5: Data Protection; Goal 6: possible other law-related matters; Goal 7: New Treaties on MLA/Extradition; Goal 8: General.

52. Taking the first two goals, by way of example, Goal 1 was entitled European Arrest Warrant (EAW). This referred to “develop knowledge on EAW from Department (as opposed to seconded Legal Advisor) perspective, including on changes to take place to the European Arrest Warrant Act 2003 (as amended) on foot of the European Arrest Warrant (Amendment) Bill 2022 and the implications of these. (The Bill is awaiting Committee stage in the Seanad; Dáil completed). Oversee, review and finalise annual report on EAW for 2022 and subsequent years.”

53. The applicant, in relation to this first goal, stated as follows:

“I have developed a good knowledge of the European Arrest Warrant (EAW) procedure from an operational perspective since beginning my role. This knowledge was acquired in several ways. First, it arose from studying legal instruments pertaining to the European Arrest Warrant procedure. This required me to study the European Arrest Warrant Act 2003 in detail and further oversee case files relating to the European Arrest Warrant Act 2003. In addition, I have acquired knowledge of other legislative frameworks related to the operation of the Act. This includes the Council Framework Decision of 2002, which the 2002 Act transposes, the European Arrest Warrant (Amendment) Bill 2022 which aims to address case law issues which have emerged since the publication of the Bill in March 2022, and the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023.

In respect of the European Arrest Warrant (Amendment) Bill 2022, I prepared a briefing note on the Bill to be used by a colleague at a meeting abroad. This required me to consult with colleagues in the Criminal Justice Legislation and Policy side of the Department. In order to understand the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023, I consulted with colleagues on the Criminal Justice Legislation and Policy side of the Department and have further discussed the Act with the Legal Advisor in the unit. I also attended a meeting in respect of the 2023 Act and took a note of the meeting which further aided in my understanding of the purpose of the Act.

This meeting resulted in the consensus that it was necessary to create a draft template of letters to be sent to Applicants under the Act, and the State issuing a European arrest warrant. I drafted the template in letter in relation to the latter, which was subsequently approved by my line manager and Legal Advisor. The second way in which my knowledge of the EAW procedure was built was through the attendance of a conference organised by An Garda Síochána on the operation of the EAW. The conference helped me understand the role of the Department of Justice, as well as other Departments in the overall EAW system.

I took a detailed note of the discussions at this conference. I also attended an expert group meeting in Brussels on the European Arrest Warrant which further aided in my understanding of the EAW at European level. It was necessary for me to do research in advance of the meeting, which allowed me to understand the complexity of the discussions. Finally, I have begun working on the Annual Report on the EAW for 2022 and 2021. Thus far, I have edited the 2022 report and further drafted a joint e- Submission in respect of the 2021 and 2022 reports.”

54. The second “goal” referred to Extradition and stated it was to “develop knowledge on Extradition, which operates in accordance with the Extradition Act 1965. Work on individual extradition cases, which will inform understanding of how the Legislation operates in practice.”

55. In relation to this goal, the applicant stated as follows:

“Since beginning my role, I have primarily worked on extradition, which posed a lot of novel issues that entailed consultations with other units of the Department. These units include the Citizenship section, International Protection Office, and Irish Prison Services.

It has further been necessary for me to consult with external

Departments such as the Department of Foreign Affairs (DFA), Office of the Director of Public Prosecutions (ODPP), and the Chief States Solicitors Office (CSSO). I have had direct involvement with about 16 incoming, and 4 outgoing case files since starting my role. In this regard, I have had to become familiar with the requirements of the Extradition Act 1965 which is the main legal basis for extradition with third countries. The Act transposes the European Convention on Extradition 1957 and its subsequent Protocols. It has been necessary for me to also familiarise myself with these Protocols. This is necessary to ensure that the cases I work on are processed in a manner that accords with the Act. Thus, when a request comes in, I check that it has been received through the diplomatic channel as outlined under the Act. Once this requirement is satisfied, it is my role to ensure that the request is received by the CSSO whom assign Counsel to advice [sic.] on it. Then on the basis of advice received, it may be necessary to seek additional information by way of a Third Party Notice (TPN). The Department of Justice is responsible for the content of the wording of the TPNs. For this reason, I have been trained in the drafting of TPNs and, have done draft TPNs which were subsequently sent to the DFA for transmission to third countries. In addition to this, when a request is received, I usually check whether the person is in the State because it may determine whether a request can proceed. I have done this with every new request I have received. Moreover, there have been instances where requests were received that do not fall within the 1965 Act or other applicable bilateral treaties or agreements. In the circumstances, I have consulted with Criminal Policy to check whether a reciprocal arrangement can be agreed to allow the case to proceed.

In situations where a request is straightforward and meets the

requirement of the Act, I am required to do an e-Submission to the Minister for approval to proceed with the matter in the High Court. This has occurred once since I began working in the unit and I have subsequently done a draft e-Submission. Finally, I have recently been a decision maker in a request under the Freedom of Information Act 2014 which fell within the remit of the extradition team of the Department. I began and completed the request within the time frame under the Freedom of Information Act 2014.”

56. Goals 3 to 8, while somewhat shorter in detail, followed a similar structure.

57. In the second of the two documents attached to her e-mail dated 28th December 2023, the applicant replied sequentially, again by way of rebuttal, to the line manager’s comments set out in her six-month eProbation assessment report, and referred to earlier, as follows:

Comment 1

58. In relation to the first paragraph, the applicant stated:

“I do not agree with this comment. I have researched every case I have worked on. The majority of the questions I asked Michael in relation to the cases were procedural (for instance, who to contact in relation to processing a specific case). I have never asked him a research based question and I have researched background to cases (and read judgments where necessary) independently.”

Comment 2

59. In relation to the second paragraph, the applicant stated:

“I have done all the work I was required or requested to do since beginning my job. I have attended meetings that I was asked to attend and replied to queries sent to me and dealt with every case within my remit. The reason a lot of my work focused on extradition and EAW was because I received requests for work in these areas more so than other areas of work. There was never an instance where I did not do MLA based work I was requested/required to do. In fact, I have a detailed job description of how I fulfilled the duties in the entire role description I was given at the beginning of my job. I think a discussion of what specific MLA (or other areas), work I did not do would be helpful in this regard.”

Comment 3

60. In relation to comment 3, the applicant stated as follows:

“I did familiarise myself with such areas and had provided evidence of this. This was merely a suggestion. It was not me seeking to remove myself from the area completely. I regret that I did not make the suggestion in private however I do have proof that the work was done.”

Comment 4

61. In relation to comment 4, the applicant stated as follows:

“This has not been my experience with you as my line manager. You have mentioned how busy you are several times and have cancelled meetings with me. For instance, after our first formal meeting on 16th November 2023 I asked for weekly meetings with you [and you] then said you were too busy for weekly meetings and could do biweekly meetings instead. One of these meetings was postponed.”

Comment 5

62. In relation to comment 5, the applicant stated as follows:

“I do not agree that this is a frequent occurrence. Whenever it has happened, the errors had been very minor. However, the majority of the emails I send are error free. Evidence of this frequent occurrence would be appreciated.”

Comment 6

63. In relation to comment 6, the applicant stated as follows:

“I prepared the material requested and have forwarded them to you.”

Comment 7

64. In relation to comment 7, the applicant stated as follows:

“This was a case dealt with by a different Department (ODPP). I had not been involved in meetings or discussions of the case. In fact, there was a meeting the week previously to discuss procedural matters in relation [to] [sic.] the case which I was not invited to attend. The case could not be discussed by email due to its high profile nature. So I did not know all the details because they had not been relayed to me. All I was told was that I needed to organise getting a stamp with precise wording to the other Department and continue with the case. I relayed this to you, and did this. The question you asked me to which I allegedly shrugged to was what the UAE were going to do when they received the document. I told you I did not know and still do not know because it is a predictive question of what another State will do which no one can answer. My predecessor knew the details because he had been involved in prior meetings about the case and had also procedurally dealt with a similar case.”

Comment 8

65. The applicant stated as follows in relation to comment 8:

“This research took days. I have written detailed research papers.”

V. PERIOD BETWEEN THE SIX-MONTH & NINE-MONTH REVIEWS

Communications

66. One of the many issues which arose between the parties related to the manner of communications between them and reliance, by the applicant, on e-mail or written communications.

67. In relation, for example, to a meeting between the applicant and the line manager on 17th January 2024, the applicant inter alia referred to it being helpful to have “a clear record of what we discuss so as to mitigate any miscommunications or misunderstandings between us”. The e-mail then set out in detail their interaction in the context of a tour of the Criminal Courts of Justice. The line manager responded on the same date, stating that “communication is a two-way process and as such some of the details in your e-mail you have written are not correct and do not match up with my perception and recollection of events. Please see note below”. This is replied to by the applicant as follows “[t]hank you for your feedback below. It shows the need for written communication going forward where possible (particularly when instructions are given) so as to mitigate misunderstandings”. The line manager further responded (on 17th January 2024) and stated that “[i]t will not always be possible or practical for me to give written instructions and so you will need to practise seeking clarification if you are unclear at any point regardless of the mode of communication used”.

68. The line manager’s views in this regard are also evident in an e-mail she sent to the applicant on Wednesday 31st January 2024 in relation to a performance management development system, where she stated “As requested of you verbally on two occasions when we had one-to-one meetings, I would be grateful if you would sign off your Goal Setting for 2023 as soon as possible. Please also now submit your End of Year Review for 2023 to me. As you will be aware, HR has been issuing reminders to all in the Department regarding PMDS compliance”.

69. Further, as the applicant had informed the line manager that she had previously given tutorials in law, the line manager states that she suggested that the applicant gave her colleagues a class in basic legal terminology that might benefit some of her colleagues with a non-legal background. The line manager had in mind, for example, frequently used Latin terminology.

70. A chain of emails took place between the applicant and the line manager from early January 2024 to when the class took place on 17th January 2024.

71. The line manager was of the view that the class which took place on 17th January 2024 reflected a low level of preparation on the applicant’s behalf and whilst a relatively minor issue, the line manager was of the view that it reflected a particular tendency of the applicant to require repeated reminders, despite instructions, and of ignoring suggestions and portrayed, in her view, “a somewhat cavalier attitude” towards tasks that she had been asked to undertake by her.

Staff management

72. The line manager states at Part H of the Counterstatement (referred to later, and which arose in the context of the applicant’s appeal) that in the period between the applicant’s six-month and nine-month reviews, she made multiple efforts to obtain formal training for the applicant, particularly with regard to staff management as she considered that the applicant had “demonstrated poor performance and poor judgment in that regard”.

73. The line manager states that the applicant was initially reluctant to undertake some training but in fact did so following further contact with her.

74. She states that of particular concern was the fact that the applicant had come to her on two occasions to complain that one of the three staff members she managed was not respecting her and not consulting her when they wanted to take leave. The line manager states that she gave the applicant advice on each of these two occasions but that when the particular staff member in question was later placed on a panel for promotion, the applicant asked the line manager if she could stop managing that person, stating that they were “leaving anyway”. The line manager states that she explained to the applicant how inappropriate that suggestion was and that it was the applicant’s responsibility as that person’s line manager to continue to manage that person until they left. She states that over a period of weeks she had to remind the applicant repeatedly to complete the necessary HR assessments for that staff member in their End of Year Review 2023, which was required to be completed for this person’s new appointment to take effect and as part of their Goal Setting for 2024.

75. The line manager states that unfortunately, from the point of the applicant’s six-month review onwards, the applicant did not engage with her appropriately in relation to her work and that this was particularly problematic due to the political sensitivity of the applicant’s work, particularly in relation to extradition matters.

76. She states that it was vital for her, as line manager, to be clear as to what was going on and what decisions her staff were making and to be updated as to their interactions with other stakeholders. She states that this was particularly important when a staff member was new to the area or inexperienced.

77. The line manager states that one of the key problems which she repeatedly raised with the applicant was the applicant’s failure to discuss cases with her sufficiently, and that as a result, she was not in a position to be confident that the applicant was making wellfounded decisions or to brief her own line manager or the Management Board with confidence. She states that a related difficulty was the applicant’s tendency to copy her in on emails to other organisations without discussing the key issues with her in advance, which would leave the line manager without any rationale for decisions or directions when communicating to external organisations, or without relevant context, such as verbal interactions with those organisations.

78. The line manager states at paragraph 22 of her affidavit of 27th November 2024 her view that some of the more serious performance issues which arose in the months between the applicant’s six and nine-month reviews included the following matters:

“(i) Ms. Mosepele submitted a draft annual report in relation to the operation of the European Arrest Warrant which included a number of incorrect statistics. The report is an important one – it is submitted to the Minister and onward to Cabinet and then to the Oireachtas. Ms Mosepele submitted the draft report to me on 20 November 2023. I noticed that some of the statistics in the draft report were incorrect and I asked her to check and correct them. Her immediate response was that it was her team’s fault and to blame me as she had not done an eSubmission before. She later told me it was not her responsibility to check or correct the statistics in the report. I felt this incident and her reaction to it demonstrated an abdication of responsibility, a lack of attention to detail and poor decision-making.[3]

(ii) On 12 December 2023, I asked Ms Mosepele by email to check

some details with the Policy Unit of the Department and to update me before she drafted a related Third Party Notice (to be sent, following clearance, to the Department of Foreign Affairs). I emphasised I needed to update the Director and that the case could have wider implications, so the information sought was of particular importance. Unfortunately, it was only on 12 February 2024 – a full two months later – that Ms Mosepele responded. When I had followed up on this issue in the intervening period, Ms Mosepele had assured me that nothing needed my attention or consideration. It was inappropriate for Ms Mosepele to delay responding to this matter for a two-month period without, at a minimum, discussing the matter with me. This incident demonstrated a lack of sense of urgency, a lack of political awareness, a lack of good judgment and an absence of understanding of the wider implications of her actions. Ms Mosepele did not accept any issue arose from her actions.[4]

(iii) On 23 February 2024 Ms Mosepele told me by email that she had decided that the development of a PowerApp (in relation to European arrest warrants) would be put on hold pending her return from study/exam/annual leave on 15th April 2024. The development of PowerApps is a priority for the Management Board in order to ensure This incident was referenced in Ms. O’Doherty’s statement to the Civil Service Board at p. 13, paragraph N. This incident was referenced in Ms. O’Doherty’s statement to the Civil Service Appeals Board at p. 13.

that the Department’s information is accurate and a delay of close to two months was a serious matter. Ms Mosepele should not have put the project on hold, particularly without prior consultation with me. I needed to discuss any proposed delay with the Director of Service Delivery due to his project being a Departmental priority.[5] …

(iv) On 6 February 2024 Ms Mosepele emailed me a draft Preliminary Risk Assessment in relation to the development of the PowerApp (for European Arrest Warrants). When we subsequently sought sign-off on the assessments at a meeting on 13th February 2024, she neglected to tell me – until well after the meeting – that the assessment she provided to me in hard copy were different from what was previously emailed to me and that those assessments contained an error.[6]

(v) In early March 2024, in advance of taking approximately 6 weeks’ leave, Ms Mosepele told me that she had asked one of her staff members who was due to be promoted to delay taking up his promotion and stay in the section pending her return from leave. This was again done without consulting with me and without regard to the implications for [the] staff member or his new team. She then asked her predecessor to take over her role while she was on leave, again without reference to me. Her predecessor already had a particular busy role and a considerable number of staff to manage.[7] This incident was referenced in Ms. O’Doherty’s statement to the Civil Service Appeals Board at pp. 13 to 14. This incident was referenced in Ms. O’Doherty’s statement to the Civil Service Board at p. 14. This incident was referenced in Ms. O’Doherty’s statement to the Civil Service Appeals Board at p. 14.

(vi) Throughout January and February 2024, I noted several instances of poor drafting and poor attention in detail in relation to politically sensitive areas of work.”8 Conduct

79. At various points during the probation period, most notably in the period after the sixmonth probation review, the line manager states that she was concerned that these matters were also relevant to the applicant’s ‘conduct’ in her role, in addition to not constituting performance to the requisite standard, and that she had contacted the Department’s HR Business Partner, Ms. Loftus, in or around November 2023, 10th January, 2024, 17th January 2024, 23rd February 2024, 5th March 2024 and 7th March 2024. By way of example, Ms. O’Doherty also refers inter alia to the following matters:

“[f]rom the point in November 2023 where I asked Ms. Mosepele to meet me on a one-to-one formal basis fortnightly to discuss her progress on probation, and where I gave her feedback on her performance that she was not happy with, her conduct towards me became negative”

…

“[s]oon after her 6-month Probation Review, Ms. Mosepele’s conduct, and in particular her conduct towards me, began to steadily worsen. In response to her 6-month Probation Review, she approached me in person to persuade me that we could no longer work together, insisting that our working relationship had “broken down”. In response, I told These are set out in Ms. O’Doherty’s statement to the Civil Service Appeals Board at p. 15.

her that I did not agree that it [was] “broken down”, and that I was keen to continue working together in order to improve her performance”

…

“From 8 January 2024 onwards, Ms. Mosepele’s conduct –

particularly with regard to her overall attitude and reactions to me – worsened markedly and became openly hostile”

“During Ms. Mosepele’s 9-month Review meeting on 7th March 2024 after I informed her that my assessment of her conduct as well as her performance was being recorded as ‘unsatisfactory’, Ms. Mosepele’s conduct was highly inappropriate. She repeatedly responded to me in a loud and highly negative manner”.

80. Further to these matters, the line manager expressed concern in relation to the applicant’s statement that she would issue legal proceedings against her, which she considered was inappropriate conduct.

VI. NINE-MONTH PROBATION REVIEW

81. In relation to the final probation assessment, i.e., the nine-month assessment which addressed the period between 7th December 2023 to 6th March 2024, the assessment table stated as follows:

“9 Month Assessment (07 Dec 2023 – 06 Mar 2024)

Performance

Work performed accurately and effectively? No

Work is of good quality, well executed, and meets deadlines? No

Works well with colleagues, and is part of the team? No

Demonstrates the required ability to perform all the duties of No the role?

Sick Leave

Has the jobholder complied with sick leave requirements? Yes

Number of certified sick days (since Probation began) HR 0.00

records show 0 days

Number of uncertified sick days (since Probation began) HR 0.00

records show 0 days

Attendance and Punctuality

Has the Jobholder complied with Annual Leave Yes

Regulations?

Has the Jobholder complied with Flexi-time Not

requirements? applicable

Number of morning and evening infringements (since 0

Probation began)

General Conduct

Has the Jobholder conduct been satisfactory in all regards? No

Assessment

Have you

discussed this

assessment Yes

with the staff

member?

I can confirm

that the

jobholder’s Unsatisfactory

performance

is

Comments I have monitored and considered [the applicant’s]

performance, conduct and attendance and the

following is my assessment; her performance and

conduct have been unsatisfactory for the role of Senior

Legal Researcher. We met on 07/03/2024 to discuss

the assessment and I have provided her with examples

of the areas mentioned here. Her attendance has been

satisfactory. She has demonstrated poor analysis and

decision-making, as well as poor

awareness/understanding of the bigger picture and of

political sensitivity. Her poor decisions/judgment

calls have been particular problematic in situations

where she acted without first consulting me. She has

demonstrated quite poor management of her team and

is not keeping me sufficiently up-to-date in that

regard. Her specialist knowledge of the legal

provisions for which she is responsible for

implementing in her capacity as Senior Legal

Researcher is improving. I made efforts to

provide/obtain additional training for her (such as in

relation to management skills) but she has not

demonstrated sufficient initiative in this regard

herself. The quality of both her research and her

consultation in preparation for giving a law class to

her colleagues was poor; while the class generated

interest and positivity among some of the team, it

lacked sufficient depth and accuracy. She has not

demonstrated appropriate interpersonal and

communication skills at the level required of a Senior

Legal Researcher. As a result of her not engaging

appropriately with me and in delaying in giving me

updates, it has left me unsure of what she is doing and

if I can adequately brief the Management Board of her

area of work. She has not demonstrated an

understanding of her role/responsibility in terms of

keeping me updated. She has not consistently

demonstrated appropriate drive and commitment in

relation to her role nor has she demonstrated any

significant amount of leadership as appropriate to the

level of Senior Legal Researcher. At her six-month

probation stage, it was highlighted to her that she had

not satisfactorily fulfilled the conditions of probation

and that she needed to demonstrate a significant

improvement in performance if her appointment as the

Senior Legal Researcher were to be confirmed. I

provided her with clear feedback on areas

fundamental to the role where she needed to improve.

There has been no noticeable improvement in her

performance and, in some areas (notably her

judgment/decision-making and her

communication/interpersonal skills) there has been,

unfortunately, a worsening. She has made some quite

fundamental errors in her work but does not accept

any responsibility in this regard. In summary, she has

not met the level of performance required of a Senior

Legal Researcher in the Civil Service. I will be

recommending to HR that she does not pass the

probation process. HR will contact her directly to

discuss the next steps. However, she should be aware

that this recommendation may result in her being

reverted to the position she held before this promotion,

as per the terms of her Contract and the Civil Service

Probation Policy. I have told her that she has the right

to appeal my assessment and that HR will be in contact

with her and will advise her of the appeal process. I

am aware that she is shortly due to commence a period

of study/exam/annual leave and have advised her that

this is not grounds for any delay in this process.

Nine-month probation review meeting & report: 7th March 2024

82. On 7th March 2024, at their meeting, the line manager states that she indicated to the applicant that she would be giving her an “unsatisfactory” rating.

83. The line manager states that at this meeting she went through examples of what she deemed to be the applicant’s underperformance in a range of areas. In each instance, she states that she asked the applicant if she recalled undertaking certain tasks or sending a specific email or submitting incorrect statistics in relation to a specific report and in each example, she states that the applicant confirmed that she knew what the line manager meant, that she understood what she was talking about and that she knew they had discussed it before. The line manager states that afterwards when she gave the applicant an opportunity to respond at that point, the applicant denied that several of the events she raised with her had ever in fact happened.

84. At this nine-month review meeting on 7th March 2024, the line manager read out a prepared hand-written note of the relevant procedural details including the opportunity to appeal and informed the applicant that she would be proceeding to submit her written assessment on eProbation and would send her a note of the meeting of that date.

85. The note of the nine-month probation review meeting between the applicant and the line manager records that it occurred at 3:30pm on 7th March 2024 at the Second Floor, Ely Place, Dublin 2. The note of the meeting written by the line manager stated inter alia as follows:

“I opened the meeting by explaining that I would be discussing Peo Mosepele’s probationary period with her under the headings of conduct, attendance and performance and that I would go through each of the competency areas for the role of Senior Legal Researcher.

I noted that Peo’s attendance was satisfactory. I noticed that both her performance and her conduct were unsatisfactory. I stated that overall her probation was unsatisfactory. I then went through each of the following competency areas and gave specific examples that showed why her conduct and performance were unsatisfactory:

• leadership

• analysis and decision-making

• management and delivery of results

• interpersonal and communication skills

• drive and commitment; and

• specialist knowledge, expertise and self-

development

I stated to Peo that:

• I am not recommending to HR that Peo pass her probation as

Senior Legal researcher;

• HR will contact her directly;

• she may be reverted to the position she held prior to being

appointed on a probationary contract to the role of Senior Legal

Researcher as per her contract and in accordance with the Civil

Service probation policy;

• she has the right to appeal, and HR would advise her of the

appeal process;

• the period of study, exam and annual leave which Peo is shortly to undertake is not grounds for delay in relation to the appeals process;

• I will now finalise her PMDS End of Year Review 2023 as

unsatisfactory – I had contacted her previous line manager in

Civil Legislation who had confirmed that Peo’s performance as

Legal Researcher (AO) prior to her appointment to Service

Delivery was satisfactory but that overall for 2023 in view of my assessment of her performance, the rating would be that of unsatisfactory;

• I would proceed to complete Peo’s eProbation form (Peo asked to see this in advance of it being submitted but I declined on the basis that I had raised each of the points with her during this meeting) and that she would have the right of appeal;

• I would send her a minute of this meeting.

Peo stated that she did not accept my assessment, that she found it unbalanced and unfair, that she would be appealing the assessment and following it up vigorously, and that she would be taking legal action against me in this regard. She stated on three occasions during the meeting that she believed I did not like her and that I was misrepresenting her conduct and performance to fit that. She raised her voice to me on a number of occasions during the meeting and I asked her to speak to me in a normal tone and volume. I stated that I do not accept any of the accusations or allegations made against me. I noted that I had welcomed her warmly to Service Delivery when she arrived.

Nessa O’Doherty

07 March 2024”.

86. On 8th March 2024, the Director of Service Delivery wrote to the Head of Human Resources in the Department of Justice and stated that following the formal nine month probation review conducted by the applicant’s line manager, it had been assessed that the applicant had failed to satisfactorily complete the probation and the recommendation was that she should not be confirmed to the higher grade of Senior Legal Researcher.

87. On the same date (8th March 2024), the Head of HR wrote to the applicant, stating that her probation had been assessed by her line manager as unsatisfactory at the 9-month (final review) stage of probation. She was informed that the Head of HR intended to make a recommendation of reversion to the Appropriate Authority and gave details of her right to appeal this recommendation to the Civil Service Appeals Board.

88. On 8th March 2024, the applicant wrote to the line manager confirming that she intended appealing her recommendation and seeking evidential proof, and written evidence, of the examples of poor performance and conduct that the line manager had referred to in their nine-month review meeting on 7th March 2024. The applicant stated that the absence of such written proof was a breach of fair procedures and added as follows:

“One of the main reasons for my appeal is that I have not been provided with any proof of the allegations you have made in my 9 month probation report (and indeed 6 month probation report). This is a legal breach of fair procedures. I requested evidential proof of the allegations made in my 6 month probation report by email and none were forthcoming. The assessment in my 9 month report is even more egregious because there are a lot of accusations made and in spite of you stating that specific examples were given at our meeting yesterday, I was not provided with any evidential proof of assertions made (a lot of which to my recollections were hearsay). In this regard, I am asking you to please follow the legal parameters around fair procedures and provide me with written evidence of allegations made in my 9 month probation report”.

89. On 11th March 2024, the line manager responded to the applicant and provided some examples of what she considered was the applicant’s poor judgement, repeated errors made and repeated reminders being required for her to comply with the Department’s Performance Management process and goal setting guidelines. The following was stated to be some examples of poor performance:

“You have demonstrated poor analysis and decision-making, as well as poor awareness of the bigger picture and political sensitivity. Some examples where you acted without first consulting me include:

o you paused the development of a PowerApp for two

months to cover the period you will be on leave – this

decision was significant as development of PowerApps

is a Departmental priority, has work schedule

implications not only for my team but for the

programme development team, and has implications

for statistical reporting for the Function;

o you delayed moving forward with correspondence

regarding an extradition case concerning the UAE for

two months, despite the fact that I had marked it as

having wider implications and had also discussed with

you the need to have political awareness in such

matters – you should have come to me sooner to discuss

this matter if you were unclear about whether/how to

proceed with it;

o you asked your predecessor to cover your area of

responsibility for the period you are on leave – at the

very least, this should have been discussed with me in

advance of any such request being made.”

90. The e-mail stated in relation to the applicant’s management of her team that the applicant had asked the line manager “if you [the applicant] could cease managing one of your team members (whom you had previously told me was causing you some problems) when he was successful in being placed on a promotion panel; I told you that this was inappropriate. While you got his Goal Setting 2024 completed by the Department’s deadline, I had to remind you in this regard on numerous occasions”.

91. The e-mail further addressed both the applicant’s performance and conduct as follows:

“You have committed more errors than I would expect of someone of the grade of Senior Legal Researcher, including:

- submitting an annual report (to be submitted to Government) with incorrect statistics;

- asking me for observations on a draft response, not realising

that it had already been issued by one of your team;

- providing me with incorrect drafts of Preliminary Risk

Assessments;

- providing me with incorrect information in a draft briefing for Transparency in relation to European Arrest Warrants You demonstrated poor research, poor consultation and quite poor delivery of information in respect of a class you gave on basic law concepts. In terms of interpersonal and communication skills, the manner in which you have engaged with me in person has generally been poor and you have demonstrated a lack of courtesy, collegiality and respect in that regard. You have also raised your voice to me on several occasions which was unacceptable. As you have notified the relevant authorities of your intention to lodge an appeal, it would not be appropriate to engage in protracted correspondence with me on this matter. Any further queries in this regard should be raised with the Appeal Board and/or with HR as where appropriate”.

92. On 11th March 2024 the applicant wrote to the Board Secretary of the Civil Service Appeals Board and confirmed her intention to appeal the recommendation of reversion to her previous position as Legal Researcher.

Civil Service Appeals Board

93. The applicant’s non-statutory appeal before the Civil Service Appeals Board (“the Appeals Board”) was heard, by way of a hybrid oral hearing over two days on 1st May 2024 and 20th May 2024. The Appeals Board had before it a detailed Statement of Appeal from the applicant and also a 15-page Counterstatement from the line manager.

94. The first part of the hearing was in person and the second part was held online. In the first part, the applicant gave an opening statement and in the second part the line manager gave a statement in response and was accompanied by Ms. Loftus who also answered questions from the members of the Appeals Board. This was then followed by questions asked by the panel members of the Appeals Board. The statements, with supporting documents, had been submitted to the Appeals Board prior to the physical and online hearing.

Statement of Appeal

95. The applicant’s statement of appeal is divided as follows: what is described under the sub-heading ‘Factual Background’ is set out between paragraphs 1.1 to 1.11, the ninemonth Probation Assessment is set out at paragraph 2, the “Grounds of Appeal” are set out between paragraphs 3.1 to 3.6.

96. In paragraph 1.3 of her statement of appeal, the applicant states that she was not, at any point, consulted by HR in relation to the arrangement that while she was formally appointed to the position of Senior Legal Researcher on 7th June 2023, she did not take up the post until 14th August 2023 because HR had agreed with her former management that she would remain in her previous role until such time as she had been replaced. She therefore commenced the role of Senior Legal Researcher on 14th August 2023.

97. Similarly, at paragraph 1.4 the applicant states that she was appointed to the Criminal Justice Service Delivery Division of the Department of Justice and emphasises the point that this was an entirely different division from the one for which the post had been advertised. She states that she was assigned to this division without any information about what the role and duties would entail and was excited by the prospect of embarking on the new area of work.

98. At paragraph 1.5 of her statement of appeal she states that she was not offered any formal training but was helped by her immediate predecessor in the post. She also states at paragraph 1.5 that in spite of the fact that she had never worked in this area of law or had received any substantial legal education in this area of law, her line manager had suggested in the initial weeks that she should be the one providing training to colleagues in the division on matters pertinent to the new area of work with which she was not acquainted.

99. At paragraph 1.6, the applicant states that on or about one month into the commencement of her role in the Criminal Justice Service Delivery Division, her line manager became ill and was unable to attend the office for approximately two weeks, during which time the applicant was unable to consult or seek guidance from her.

100. At paragraph 1.7, she refers to her first meeting one-to-one with her line manager since her first week in the new section. She states that she was informed at that meeting on 16th November 2023 that her line manager planned to mark her six-month’s probation report as “unsatisfactory”. She states that this was three months into her appointment as a Senior Legal Researcher and about two months of being able to consult with her, taking into account the time period that her line manager was on sick leave. The applicant states that the reasons provided to her by the line manager were: (i) that the applicant was not using her initiative and was asking for clarifications from her predecessor; and (ii) that her performance was unsatisfactory because of work that had allegedly not been done. The applicant states that she immediately clarified that the work that her line manager had been referring to had in fact been completed and immediately following their meeting on 16th November 2023, the applicant emailed written proof of that to the line manager. She states that notwithstanding this clarification, her line manager recorded in her six-month’s probation assessment that this work had not been done.

101. At paragraph 1.8 of her statement of appeal, the applicant states that she met with the line manager again and expressed a desire to have more meetings with her. She stated that she was told that her manager was too busy for weekly meetings and could only meet fortnightly. The applicant states that during this second meeting on 30th November 2023 her line manager commented that there had been a significant improvement in her work but stated that she still planned to mark her performance as unsatisfactory at her sixmonth probation review, adding that if she continued to work at the level she was currently working, her performance would be marked as satisfactory at the nine-month probation review and she would pass the probation overall. The applicant states that this was three months into commencement of her appointment as a Senior Legal Researcher.

102. At paragraph 1.9, the applicant states that the following day (1st December 2023) she called her line manager to seek clarification on why she was marking her six-month probation as unsatisfactory. The applicant states that this was because she believed that any misunderstandings of her performance had been resolved by the emails she had sent her evidencing completion of the work that the line manager believed that she had not done. She states that during the call, her line manager stated that she was being failed because she did not think she had completed all the work on the role description she had given her. The applicant states that at no point did her line manager provide her with proof of the claim.

103. At paragraph 1.10 of her statement of appeal, the applicant states that the last meeting which took place before her six-month probation assessment was at her request on 19th December 2023.

104. The applicant states that at that meeting on 19th December 2023, her line manager again stated that she intended to fail her because although she was currently satisfied with her performance, she still felt the need to fail her on the basis of her performance during the first few months of her role. The applicant states that the line manager did not elaborate on the reasons for the failure or provide her with any proof of underperformance.

105. At paragraph 1.11 of her appeal statement, the applicant states that on 24th December 2023 she received a notification from the NSSO with an unsatisfactory rating on her sixmonth probation assessment and an extensive comment on why she was being marked unsatisfactory. The applicant states that she was shocked at the assessment because it made allegations that she had not done work but failed to say which work this referred to and also alleged that she did not carry out research independently and relied on her predecessor’s research. She states that it further made reference to a conversation that had allegedly taken place between the applicant and her line manager but she did not recall any conversation taking place in the manner expressed in the report. She stated that she requested proof of the allegations made in this report from her line manager and that none were forthcoming. She stated that she emailed HR about the rating and they informed her that it would not have any bearing upon whether she passed the probation if her nine-month probation mark was “satisfactory”.

106. At paragraph 2 of her statement of appeal under the subheading “Nine-month probation assessment”, the applicant states that she did not have any meetings with her line manager to discuss her performance following her six-month probation assessment and pending her nine-month probation assessment.

107. She states that the last and only formal meeting she had with her manager regarding her performance in 2024 was her formal probation meeting on 7th March 2024 and at this meeting, her line manager informed her that she would be marking her nine-month probation report “unsatisfactory”.

108. At paragraph 2.1 of her appeal document, the applicant sets out an extract of the ninemonth probation report, which is referred to in this judgment.

109. After referring to this quoted extract, the applicant states that HR had informed her that they intended to make a recommendation of reversion to the Appropriate Authority (i.e., the Secretary General) on the basis of this recommendation from her line manager and she sets out her grounds of appeal at paragraph 3 of the appeal statement under the subheading “Grounds of Appeal”.

110. The applicant’s Grounds of Appeal were as follows:

“(3.1) In her assessment of my performance, my line manager claims that I have been provided with examples of the areas she mentions in my nine months’ probation assessment. However, I have not been provided with evidential proof of anything alleged in my 9-month probation report.[9] I was never provided with records of any allegations made in either my 6-month or my 9-month probation report. This is a direct breach of the ‘Circular 24/2016 of the Civil Service Management of Underperformance Policy’ and the ‘Guidelines on the Management of Probation in the Civil Service 2019’.

The Probation Guidelines make it clear at page 3 that a manager ought to keep records of the performance of their employee during the probation period. The Underperformance Circular mirrors this obligation and expands upon it by providing guidance to managers on how such records are supposed to be kept, and, in particular, it creates an obligation for managers to furnish the civil servant with such Bold type is in the original document.

records. These obligations arise under Rule 1.12 and Rule 1.13 of the Civil Service Underperformance Circular. Rule 1.12 provides that:

When dealing with underperformance, managers should keep

records of all meetings and information gathered, including:

- summaries/notes of meetings, discussions or plans relating to

underperformance;

- correspondence (including emails) relevant to the

underperformance; and

- relevant information / responses provided by the civil servant

whose underperformance is being addressed.

Rule 1.13 further adds:

“All relevant documents should be retained locally by the

manager and relevant documentation should be made available

to the civil servant during the process. The manager should

ensure that the documentation is provided to any new manager

that replaces him or her as the manager of the civil servant for

the purposes of this Policy where relevant and appropriate.”

In the meeting of 7th March 2024, my manager did not make any

documentation available to me, in breach of Rule 1.13. Therefore, I was not provided with any proof or record of what was alleged in my

9 month’s (and 6 months) probation assessment. I sent an email to my manager on the 8th March 2024 requesting the above records because I was never furnished with same. I received an acknowledgement of the email on the same day but did not receive a response to my direct request until the 11th March 2024. The response did not include any such records. In it, my manager repeated the accusations she made in our meeting of 7th March 2024 but did not provide me with any documentation or records to prove those allegations. As a consequence of not having been furnished with such documentation/records/proof of allegations in accordance with the above-mentioned circulars, I again request proof of the following allegations specified in my 9-month probation report:

i. Records showing where I have demonstrated, ‘poor

analysis and decision-making, as well as poor

awareness/understanding of the bigger picture and of

political sensitivity.’

ii. Records showing that I have demonstrated, ‘poor

management of my team’.

iii. Records and specification of which research I was

required to do that was ‘poor’ (or lacking in depth and

speciality) in preparation of any classes I was requested

to give.

iv. Records of poor interpersonal and communication skills

at the level required of a Senior Legal Researcher. In

particular, specification of the ways in which I have

failed to demonstrate these interpersonal and

communication skills.

v. An explanation of the “clear feedback on the areas

fundamental to the role” given that my 6-month

probation mark and records of how I failed to implement

the feedback given.

vi. Records of my worsening ‘judgment/decision-making

and communication/interpersonal skills’. vii. Records of fundamental errors made in my work.

(3.2) I was never provided with the opportunity to respond to the allegations made by my line manager in my 9-month probation report. The ‘Underperformance Circular’ makes it clear that in any meetings where the underperformance of the civil servant is addressed, the civil servant must be afforded the opportunity to respond to any concerns raised. This is stated under Rule 3.4.10, Rule 3.1, Rule 3.2.5, and Rule

3.7.2. However, I was not given the opportunity to respond to the allegation made in my 9-month assessment report in the meeting of 7th March 2024. Her refusal to afford me the opportunity to respond to the allegations made in the meeting of 7th March 2024 was repeated in her email of 11th March 2024 where she stated that any queries regarding her reply ‘should be raised with the Appeal Board and/or with HR as/where appropriate’. Similarly, following the meeting of 7th March 2024, she sent me a ‘minute’ of the meeting which summarised her version of what was discussed. She did not give me the opportunity to respond to this minute and indeed stated that if I had any observations, I may “relay them to HR”.

(3.3) My line manager never held meetings with me raising concerns of underperformance prior to her assessment of my 9 months’ probation.

The Civil Service Underperformance Circular and the Probation

Guidelines require the line manager to hold meetings with their

member of staff in circumstances where there are concerns of

‘underperformance.’ Such meetings are intended to be initiated by the line manager and are supposed to include a notification from the line manager with the following items:

- the purpose of the meeting; and

- a clear statement of the matter which is the subject of the meeting.

This is in accordance with the Rule 3.1.4 of the Civil Service

Underperformance Circular. In addition, a copy of the Civil Service Policy on under performance should be included in the email notifying the civil servant of this meeting, in accordance with Rule 3.1.5 of the Underperforming Circular. However, my line manager did not hold meetings with me in line with these requirements to notify me of any circumstances she had about my alleged underperformance. We had three meetings during 2023 (two of which were at my initiation), and none of these complied with Rule 3.1.4 and Rule 3.1.5. The only meeting she initiated was the meeting of 16th November 2023. In any event, the meeting request did not inform me of the subject matter, nor did it provide a clear statement of the subject.

The meeting on 7th March 2024 was the only meeting in which my

performance was discussed following my 6 months’ probation

assessment and it was for the purpose of informing me that she would mark my 9-month probation report as ‘unsatisfactory’.

(3.4) In my 9 months’ probation [report, My] [sic.] manager has made a number of allegations, including that I have [sic.] ‘not demonstrated an understanding of [my] role/responsibility in terms of keeping [her] updated’ and that I am not engaging appropriately with her and that I have delayed in giving her updates to such an extent that she is unsure of what I am doing.

I work in an area of the Department that deals with very serious crimes (such as fraud, rape, and murder). The role of the unit is to make sure that extraditions are carried out within a legislative framework. My job is to engage with a number of stakeholders such as appropriate authorities in other States, the Chief State Solicitor’s Office, and An Garda Síochána to ensure this important work of the Department is carried out. My daily duties include dealing with these Government Departments/Offices and agencies to ensure that the work is carried out in a timely manner and within the relevant legislative framework. Since January 2024, I have sent my manager exactly 189 emails (in 41 working days) and the majority of these emails are to relevant Government bodies to ensure that these responsibilities of the Department are carried out.

For this reason, it is most unclear to me what my manager means when she says she is unsure of what I am doing when she receives an average of 4–5 emails from me per day, primarily pertaining to coordinating extraditions, European arrest warrants and mutual legal assistance.

(3.5) It is currently proposed to revert by role to ‘Legal Researcher’ in accordance with the Civil Service Regulation Acts 1956 to 2005. The operative section in this regard is section 7(1)(b) of the Civil Service Regulation Acts 1956 to 2005.

Section 7(1)(b) of the Act pertains to reversion when on probation and provides that:

Where, in respect of a civil servant who has been appointed to an established position (in this section referred to as his probationary position) and who under his conditions of service is serving in a probationary capacity, the appropriate authority is, at any time during the civil servant’s probationary period or such (if any) extension thereof as the appropriate authority may from time to time fix, satisfied that he has failed to fulfil the conditions of probation attaching to his probationary position, then, subject to section 4 (where applicable), the following provisions shall have effect—

(b) if the civil servant held, immediately prior to his

appointment to his probationary position, an established position (in this paragraph referred to as his previous position), the appropriate authority shall terminate his appointment to his probationary position and, in that event, the civil servant may, if the Minister consents, forthwith be appointed to an established position (being a position which is, either, (i) in the same grade as that of his previous position, or (ii) in a grade or rank which, in the Minister's opinion, is equivalent to or lower than the grade of his previous position) to be designated by the Minister;

Under this section, reversion can only take place if the Appropriate Authority is satisfied that I have “failed to fulfil the conditions of probation attaching to his probationary position.” My contract requires me to comply with the following conditions:

• Official Secrets Act 1963 as amended by the Freedom of

Information Acts 1997 and 2003.

• Civil Service Code of Standards and Behaviour.

• Ethics in Public Office Act 1995

• Publication of any Material: agreement not to publish material related to my official duties without prior approval by the Minister.

• Civil Servants and Politics Regulations.

I am further required by my contract to ‘perform any duties

appropriate to my grade which may be assigned to me during the

probation period.’

I have not breached any of the conditions of my contract and have performed all duties appropriate to my grade which I was assigned during the probationary period.

(3.6) Finally, there is reason to believe that the 9 months assessment report is lacking in due process and inherently unfair because I had not been acting in the role of a Senior Legal Researcher for the full

9 months at the time of my assessment.

As is evident from the timeframes and dates set out above, I was

assessed for the 9-month probation standard at only 7 months into the role. I commenced my duties as a Senior Legal Researcher on 14th August 2023. In my 6 months’ probation report, it is stated that I had not ‘overall across the past three months, reached the standard expected of a Senior Legal Researcher at the six-month stage.’ Therefore, when I was assessed at the 9 months stage, I had been acting in the capacity of a Senior Legal Researcher who had been in the role for approximately 7 months. This is because I was not afforded the opportunity to commence my role as a Senior Legal Researcher immediately upon promotion and commencement of my probation. This, as noted earlier in this document, was through an agreement between HR and my previous management. I was never consulted in relation to the decision to keep me in my current posting following promotion.”

Response from the line manager

111. On 10th April 2024, the line manager responded to the applicant’s appeal by way of a 15- page Counterstatement which refers to accompanying tabulated documentation. The Counterstatement is structured as follows: the background is set out at paragraphs (A) to (G); the rebuttal of appeal begins at paragraph 1.1 and her assessment of the six-month probation review was set out at paragraph 1.11; the meeting of 17th January 2024 was referred to at paragraph 2.1 and the meeting of 7th March 2024 is referred to at paragraph 3.1, with the tabulated documentation also referenced, as is the nine-month assessment; further responses by way of rebuttal are addressed at paragraphs 3.2 to 3.6. Other relevant information is set out at paragraphs H to O; the conclusion is set out at paragraphs P and Q.

112. In her opening statement to the Appeals Board, the line manager summarised some of the performance issues which had been raised and which were detailed further in the Counterstatement. In her Affidavit sworn on 27th November 2024, Ms. O’Doherty (the line manager) states that she addressed the Appeals Board in response to the following claims made on behalf of the applicant: “(i) that I had not given her a substantial amount of time when she started in the role; (ii) that the only training forthcoming was from her predecessor; (iii) that I was unavailable to her/away on illness leave; (iv) that the class on basic legal terminology was outside the scope of her legal training; and (v) that it was she who requested the formal one-to-one meetings.”

113. In her opening statement and Counterstatement, the line manager stated that in her submission she referred again to matters relating to the applicant’s performance and conduct. The issues relating to performance inter alia included:

(i) that the applicant was overly reliant on her predecessor;

(ii) that the standard of her work, including the class she delivered, reflected a lack of preparation and care on her part; and

(iii) that there were delays in addressing succession planning.

114. In relation to the applicant’s conduct issues, the line manager referred to, inter alia, the following:

(i) the applicant stating on several occasions that she would take legal action against the line manager personally if she did not pass her probation;

(ii) since her six-month probation report, the applicant had alleged that the line manager did not like her and that is why she did not pass her probation;

(iii) the applicant alleged that the line manager repeatedly walked away from her and would only talk to her predecessor when in their joint office;

(iv) prior to going on leave, the applicant had informed the line manager, that without consulting her, she had asked one of her staff to stay on in the section pending her return from leave. The line manager also states that applicant subsequently claimed this never happened;

(v) the applicant asked if she could stop managing a colleague after that person was successful in a competition for promotion, even though it could be some months until the promotion would occur, and that the applicant subsequently claimed this never happened; and

(vi) the applicant displayed repeated and increasing impatience and irritation when she asked the applicant to engage with her and to come to talk to her about her work and that the applicant repeatedly demanded to be given an exact number of times per day/week that she could engage with her.

115. The line manager states at the time of the applicant’s six-month probation report, she emphasised to the applicant that she wanted to work with her in order to help her to improve sufficiently to reach the required level. She states, however, that the applicant’s overall attitude and conduct towards her worsened considerably from then onwards.

116. She states that whereas her concerns in relation to the applicant at the point of the sixmonth probation review were largely performance-based, by the time of her nine-month probation review, the line manager had concluded there was also a clear problem with the applicant’s conduct, which is why she marked her probationary period as ‘unsatisfactory’ in relation to both performance and conduct.

The report of the Appeals Board dated 31st May 2024

117. The Appeals Board upheld the applicant’s appeal and issued a non-binding report and recommendation (comprising 23 pages) on 31st May 2024.

118. It recommended that the applicant should be confirmed to the grade of Assistant Principal Officer, i.e., appointed to the post of Senior Legal Researcher.

119. In its recommendation, the Appeals Board inter alia stated as follows:

“The evidence presented by the department, which was characterised as indicative of poor standards, does not support that claim. In general, the work is of a high standard, and certainly well within acceptable limits. To illustrate each sides position and the Board’s conclusion, we set out some examples below. Tab 15 of the Department’s submissions is presented as a fall in standards to support reversion and is described as an example of ‘Peo’s more serious errors and omission’. The Board notes only two amendments to the work. The first ‘a total of’ is replaced with ‘in the region of’. The final line is deleted. The amendment is good and no doubt improves the draft – reflecting [Ms. O’Doherty’s] [sic.] superior experience. These amendments do not, however, constitute serious errors or serious omissions – which is the claim. For ease of reference, the note is appended hereto (Appendix A). The first draft is of a good standard. The fact that a line manager made two changes, does not mean the work was substandard. The line-manager’s amendments were provided by Ms. Mosepele by 11.44 am – on the same day. Though ‘in the region of’ had changed to ‘approximately’ – which was better again. Two further examples are put forward, contained within Tab O and tab P of the Appellants submissions, as evidence of lack of attention to detail and evidencing ‘serious errors and omissions’. These examples, put forward by the respondent, are also appended here for ease of reference (Appendix B).

Sending drafts within a team which receive mark ups and comments

represents typical interactions in the workplace and are not evidence of the standard not having been met. In many instances, the mark-ups are limited in number and entirely within an ordinary range. The standard of work presented and appended hereto is professional. They do not evidence substandard work; they evidence the opposite.

The drafts presented are cogent and competent and provided with

covering email explaining the issues/background, and choices made by the person on probation. The fact that amendments or advice is given which improves the drafts is normal workplace interaction. The Board’s opinion is that the work meets the required standard. The hearing took two days to hear both parties and involved a detailed assessment of the evidence. Each instance presented has been reviewed by the Board. The above examples are included only as illustration for the benefit of the appropriate authority.

The Board believe that the decision to revert was in error and

recommend that in this case the appeal succeeds.

Having regard for the Civil Service Probation Guidelines and the

explanation provided by the Appellant, the Board recommends to the Appropriate Authority that the following actions be applied:

- Ms. Mosepele should be confirmed to the grade of Senior Legal Advisor (Assistant Principal [sic.] Officer). The Board wished to thank both parties, and their representatives, for the detailed and professional preparation of their cases and presentations which has greatly assisted the Board in their assessment of the appeal”.

File sent to the Secretary General

120. On 30th May 2024 (the day before the recommendation of the Appeals Board was furnished), the Head of Human Resources of the Department of Justice sent a detailed memorandum, together with documentation which was tabulated to the memorandum, to the Secretary General.

121. Under a sub-heading ‘Action Required’, the memorandum stated “Approval is sought in accordance with Section 9(1)(f) of the Public Service Management Act 1997 and the Civil Service Regulations Acts 1956 to 2005 to terminate the probationary employment contract of Ms. Peo Mosepele, in her role as Senior Legal Researcher and subsequent reversion to her previous established grade as Legal Researcher.”

122. The memorandum then set out an ‘Executive Summary’ in six paragraphs which included the following in the penultimate and final paragraphs: “The Appeals Board acknowledged the time pressure in this case and the need to have reached a recommendation before 06 June 2024. They advised that they hoped to have their

decision by the end of May and further advised that the decision would be non-binding. We have yet to received their recommendation. The approval of the Secretary General is sought herewith to terminate the probationary contract of Ms. Mosepele as a Senior Legal Researcher.”

123. The memorandum, by reference to tabulated documentation, then, summarised essentially the position of the applicant’s line manager and person responsible for the probation assessment, under the following headings: ‘Background’, ‘Training’, ‘3 Month Probation Review Feedback’, ‘6 Month Probation Review Feedback’, ‘9 Month Probation Review Feedback’ ‘Formal Notification to HR Division’ ‘Appeal’ and ‘Decision Sought’. The Appendix to the memorandum was set out as follows:

Title Tab

3, 6 and 9 Month Probation Reviews and 1

Probation Guidelines

Letter from Director of Service Delivery. 2

Informing Head of HR of their

recommendation to terminate Peo

Mosepele’s probationary contract and for

her to be reverted back to her previous

grade

Letter from HR informing Peo Mosepele 3

of her Line Manager’s recommendation

to terminate her probationary contract and

for her to be reverted back to her previous

grade, and Civil Service Appeals Board

guidelines

Email from Peo Mosepele confirming that 4

she wishes to appeal her Line Manager’s

decision to the Civil Service Appeals

Board

Peo Mosepele’s Appeal and supporting 5

documentation

Line Manager’s Counterstatement and 6

supporting documentation

Email from Civil Service Appeals Board 7

regarding appeal time and ate and email

regarding Appeal decision

Public Service Management Act, 1997 8

124. By e-mail dated 6th June 2024, the applicant was furnished with an e-mail from the HR section of the Department of Justice, which set out in an attached zip file all of the documents which had been furnished to the Secretary General for her consideration on the applicant’s probation. In addition to the memorandum, the Appeals Board report and recommendation which was sent to the Secretary General on 31st May 2024, I understand these documents to have included the material set out at tabs 38 to 82 in Book 2 of the Book of Pleadings relied on by the parties in this application for judicial review.

125. Ms. Elaine Loftus, Assistant Principal Officer in the Human Resources section of the Department of Justice, states in her affidavit sworn on 27th November 2024 that on 31st May 2024 at 10:30am the report and recommendation of the Appeals’ Board was received by e-mail and this was immediately sent to the Secretary General (at 2:17pm on 31st May 2024) in addition to the memorandum and documentation which had been sent the previous day, on 30th May 2024 so that the Secretary General could consider it when reviewing the entire file. Ms. Loftus states that on 5th June 2024, the Principal Officer in Human Resources and the Head of Corporate in the Department of Justice also met with the Secretary General to provide her with a full briefing and background to the case.

126. Ms. Loftus also points out that the timing of the final decision in relation to the termination of the applicant’s probation in the role of Senior Legal Researcher was a particularly important issue, given that she would have passed the 12 months of service in the role on 6th June 2024 and that by virtue of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. 686 of 2022) a period of probation cannot exceed 12 months. Consequently, she states that had a decision not been reached before 6th June 2024, the applicant would have been deemed to have completed her probation and be deemed to be entitled to a permanent contract in the role of Senior Legal Researcher thereafter. After referring to these matters, Ms. Loftus then states as follows at paragraphs 29 and 30 of her affidavit sworn on 27th November 2024:

“(29) On 30th May 2024, the Appeals Board decision had not yet been provided. Given the intervening June bank holiday weekend and the large volume of documentation to consider, it was determined that it was necessary to provide the submission to the Secretary General despite not yet having received the Appeals Board determination.

(30) A submission in relation to the probation decision in Ms. Mosepele’s case was delivered in person to the Secretary General on 30th May 2024. The submission contained a note advising her that the Appeals Board report was awaited, but as a decision was required by 5th June 2024, the submission was being forwarded to allow time for her consideration of the relevant documentation. Given the number of supporting documents appended to the respective Appeals Board statement and counterstatement, it was a large submission and would require some time to review. The submission included an executive summary, the 3, 6, and 9 month probation reports, the recommendation letter from the Head of the Division to revert the Applicant to her previous established grade, the Civil Service Appeals Board process letter, the Civil Service Appeals Board Guidelines, the probation guidelines, the Applicant’s appeal statement, and a copy of the Public Service Management Act 1997”.

127. Ms. Loftus, at paragraph 32 of her Affidavit sworn on 27th November 2024 stated that “The appeals process via the Appeals Board is a non-statutory mechanism, but nonetheless regard must be given to their recommendations. In this case, having considered the report and discussed it with colleagues, it appeared to me that there were deficiencies in the report including a finding that two examples of poor performance quoted were not sufficient to point to underperformance. The report made no reference to the multiple other examples provided, and, more worryingly, made no reference at all to Ms. Mosepele’s conduct. The report clearly did not address all of the matters raised at the Appeals Board’s hearing”.

Decision of the Secretary General dated 5th June 2024

128. All matters, including the non-binding report and recommendation of the Appeals Board, were considered by the Secretary General who decided that the applicant should revert to her previous established grade of legal researcher, effective from 5th June 2024, in accordance with the 1956 Act (this decision was communicated to the applicant by the Head of Human Resources in the Department of Justice).

129. The decision of the Secretary General dated 5th June 2024 was communicated in the first instance to the Head of Human Resources. The decision stated as follows:

“I acknowledge receipt of your recent submission regarding the

performance of Peo Mosepele during her probation period as Senior Legal Researcher. I have considered this carefully and reflected on this matter. I note that Nessa O’Doherty had recommended that Ms Mosepele should revert to her previous grade of Legal Researcher following an unsatisfactory rating at her 6 month and 9 month reviews. I note that Ms. Mosepele appealed this decision to the Civil Service Appeals Board who issued their recommendation on Friday last 31st May 2024. I further note that their recommendation was that she should be confirmed in her role as Senior Legal Researcher, which they advised was non-binding. These are serious matters and the onus is on a Secretary General (the appropriate authority) to make careful and considered decisions in these cases. I have legal obligations under the Civil Service Regulation Act 1956 (as amended) which states as follows:

Persons appointed on probation to established positions.

7.—Where, in respect of a civil servant who has been appointed to an established position (in this section referred to as his probationary position) and who under his conditions of service is serving in a probationary capacity, the appropriate authority is, at any time during the civil servant's probationary period or such (if any) extension thereof as the appropriate authority may from time to time fix, satisfied that he has failed to fulfil the conditions of probation attaching to his probationary position, then, subject to section 4 (where applicable), the following provisions shall have effect—

(a) the appropriate authority shall, notwithstanding section 5,

terminate the services of the civil servant, unless, immediately prior to his appointment to his probationary position, he held another position in the Civil Service;

(b) if the civil servant held, immediately prior to his appointment to his probationary position, an established position (in this paragraph referred to as his previous position), the appropriate authority shall terminate his appointment to his probationary position and, in that event, the civil servant may, if the Minister consents, forthwith be appointed to an established position (being a position which is, either,

(i) in the same grade as that of his previous position, or (ii) in a grade or rank which, in the Minister’s opinion, is equivalent to or lower than the grade of his previous position) to be designated by the Minister;

The Civil Service Appeals Board is a well-regarded but non-statutory mechanism, and I have regard to their non-binding recommendation. In this case, there are deficiencies in their report including a finding that two examples of poor performance were not sufficient to point to underperformance. They made no reference to the other examples set out in the submission, and I note the report does not reference Ms. O’Doherty’s submission which noted examples of poor conduct. The report clearly did not address all matters raised and is deficient in that regard. The report also states that Ms. O’Doherty was absent with Covid and unavailable to her staff for 1 month of the probation period. I understand that this period of absence was for 1 week and that she remained available to her staff by phone and e-mail. I am grateful to the Civil Service Appeals Board for their consideration of this matter. I note their recommendation but, having carefully examined all the facts, I confirm that Ms. Mosepele should revert to her previous grade of Legal Researcher, as provided for in the Civil Service Probation Guidelines. I would appreciate if HR could advise her of this decision.”

VII. DISCUSSION AND DECISION

Civil Service Regulation Act 1956 (as amended)

130. Section 5A of the Civil Service Regulation Act 1956, as amended (“the 1956 Act”) addresses the appointment of civil servants on probationary contracts as follows:

“5A.–(1) Notwithstanding any other provision of this Act, a person may initially be appointed to be an established civil servant on the basis of a probationary contract.

(2) Where a civil servant to whom subsection (1) refers completes the probationary period concerned to the satisfaction of the appropriate authority, that civil servant shall be appointed as an established civil servant and subsection (1) shall cease to apply to that appointment.

(3) Where a civil servant to whom subsection (1) refers does not

complete the period of the probationary contract to the satisfaction of the appropriate authority, the provisions of section 7 shall apply.

(4) Nothing in this section shall prevent the termination of an

appointment under subsection (1) in accordance with the terms and conditions of the probationary contract prior to the expiry of the term of the contract.”

131. Section 7 of the 1956 Act (as amended) addresses the position of persons appointed on probation to established positions:

“(7) Where, in respect of a civil servant who has been appointed to an established position (in this section referred to as his probationary position) and who under his conditions of service is serving in a probationary capacity, the appropriate authority is, at any time during the civil servant’s probationary period or such (if any) extension thereof as the appropriate authority may from time to time fix, satisfied that he has failed to fulfil the conditions of probation attaching to his probationary position, then, subject to section 4 (where applicable), the following provisions shall have effect—

(a) the appropriate authority shall, notwithstanding section 5,

terminate the services of the civil servant, unless, immediately

prior to his appointment to his probationary position, he held

another position in the Civil Service;

(b) if the civil servant held, immediately prior to his appointment to his probationary position, an established position (in this paragraph referred to as his previous position), the appropriate authority shall terminate his appointment to his probationary position and, in that event, the civil servant may, if the Minister consents, forthwith be appointed to an established position (being a position which is, either, (i) in the same grade as that of his previous position, or (ii) in a grade or rank which, in the Minister’s opinion, is equivalent to or lower than the grade of his previous position) to be designated by the Minister;

(c) where—

(i) the civil servant is appointed to an established position under paragraph (b) of this section, and

(ii) he held, immediately prior to his appointment to his

probationary position, his previous position in a probationary

capacity,

then, the established position to which he is appointed shall have attached thereto such conditions of probation and such other conditions as the Minister may fix;

(d) if the civil servant held, immediately prior to his appointment to his probationary position, a position which is not an established position (in this paragraph referred to as his previous position), the appropriate authority shall terminate his appointment to his probationary position and, in that event, the civil servant may, if the Minister consents, forthwith be appointed to a position which is not an established position (being a position which is, either (i) in the same grade as that of his previous position or (ii) in a grade or rank which in the Minister’s opinion is equivalent to or lower than the grade of his previous position) to be designated by the Minister.”

132. By virtue of section 2(1)(c) of the 1956 Act, the Secretary General of the Department of Justice is the relevant “appropriate authority” in the context of assessing the applicant’s probationary period.

133. Accordingly, arising from section 5A and 7 of the 1956 Act where the Secretary General is, at any time during the probationary period, satisfied that the applicant has failed to fulfil the conditions of probation attaching to her probationary position, then, as the applicant (in this case) held, immediately prior to her appointment to her probationary position, an established position, the Secretary General is required to terminate her appointment to her probationary position and, in that event, the applicant may, subject to ministerial consent, be immediately appointed to an established position which is, either:

(i) in the same grade as that of her previous position; or (ii) in a grade or rank which, in the Minister’s opinion, is equivalent to or lower than the grade of her previous position) to be designated by the Minister.

134. The applicant’s line manager in this case, Ms. O’Doherty, was a person to whom certain functions of the Secretary General relating to management of performance and discipline of staff below the grade of Principal had been delegated pursuant to section 9(1)(f) of the Public Service Management Act 1997 (as amended).10 Nonstatutory appeals process

135. In Kelly v Minister for Agriculture [2021] IESC 23; [2021] 2 I.R. 624, which concerned a decision of the Government to dismiss the appellant in that case from the position of Harbour Master at Killybegs Fishery Harbour Centre under the 1956 Act, Dunne J., at paragraph 124 of her judgment, stated that she agreed with “the proposition that the function of the Cabinet was to decide whether or not to dismiss Mr. Kelly, and that their function was not to act, as it were, as some form of appeal body from the decision of the Appeal Board.” Similar views were expressed by O’Donnell J. (as he then was) where at paragraph 19 of his judgment in Kelly he observed that the combination of the Civil Service disciplinary procedures and the provisions of the 1956 Act meant that that the

decision of the Government in the circumstances of the Kelly case, while undoubtedly a Section 9(1)(f) of the Public Service Management Act 1997 (as amended) provides that “The assignment of the responsibility for the performance of functions to officers or to a grade or grades of officer of a Department or a Scheduled Office shall include a requirement, where deemed appropriate to the assignment, that the officer to whom the assignment is made shall– perform, on behalf of the Secretary General of the Department or Head of the Scheduled Office, functions in respect of appointments, performance and discipline of personnel in the area of the assignment, other than dismissals, that are the responsibility of the aforesaid Secretary General or Head pursuant to section 4(1)(h)”.

decision having decisive legal effect, was “not in any way an appeal or review of the process that has gone before.”

136. The appeals process is based on guidelines and is non-statutory. The Guidelines on the management of probation in the Civil Service (Department of Public Expenditure and Reform (8th February 2019) inter alia state in the ‘Introduction’ section that they “do not establish terms and conditions of employment for employees. These Guidelines are not addressed to individual civil servants and do not give rise to any expectation (on the part of any individual civil servant) that any course of action will be followed by his or her employer. Terms and conditions of employment of probationers (and other civil servants) governed by the Civil Service Regulations Acts 1956 to 2005 and are set out in applicable circulars. Nothing in these Guidelines limits the rights and obligations of any appropriate authority in the discharge of his or her functions under the Civil Service Regulations Acts 1956 to 2005.”

137. In Whelan v Minister for Transport [2023] IEHC 586 (Unreported, High Court, 10th November 2023), the High Court (Simons J.) observed at paragraph 46 that “the review process is non-statutory and does not affect the procedures prescribed under the Civil Service Regulation Act 1956. The Appeals Board may only make a non-binding recommendation to the appropriate authority”. At paragraph 4 of his judgment, Simons

J. explained the purpose and context of the probationary period under the 1956 Act as follows:

“The power to appoint a civil servant to a position in a probationary capacity is provided for under the Civil Service Regulation Act 1956.

The legal effect of a probationary period is that the protection against dismissal, which would ordinarily apply, is temporarily suspended. This is to allow the appropriate authority a fixed period of time within which to assess the probationer’s performance. Section 7 of that Act allows for the termination of the appointment in the event that the appropriate authority is satisfied that the civil servant has failed to fulfil the conditions of probation. In circumstances where, as in the present case, the probationer is an existing civil servant who had been promoted to the probationary post, then he or she will revert to the same or equivalent grade as their previous position in the civil service. Put otherwise, the termination of their appointment does not result in their dismissal but rather their reversion to the same or equivalent grade as before”.

138. The decision of Simons J. in Whelan also informed the strict timeline which required a

decision to be made in Ms. Mosepele’s case on or before 5th June 2024 as the judgment in Whelan, if applied to the applicant’s case, was understood to mean that if a decision was not made on or by 5th June 2024, the applicant would have been deemed to have passed the 12 months of service in the role of Senior Legal Researcher on 6th June 2024 and by virtue of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. 686 of 2022), the period of probation cannot exceed 12 months.

139. In these proceedings, both parties have made criticisms of the report of the Appeals Board. However, by analogy, as stated by Dunne J. in Kelly v Minister for Agriculture, the legislative probation process engaged pursuant to the 1956 Act does not envisage the Secretary General engaging in some form of tiered appeal process from the decision of the Appeals Board.

The applicable legal test

140. One of the main arguments made by the applicant is that the line manager’s findings are allegations and not facts and also contain contradictory opinions and that the Secretary General in her decision dated 5th June 2024 did not expressly state that she was ‘satisfied’ as that phrase is understood in the 1956 Act.

141. The applicant also states that there was a breach of fair procedures in that while she responded in detail to the line manager’s 15-page Counterstatement orally at the hearing before it, the Appeals Board, in their non-binding report and recommendation, did not sufficiently set out all of her arguments and rebuttals which meant that her entire response was not set out when their report and recommendation was forwarded to the Secretary General.

142. The legal prism through which the decision of the Secretary General is to be assessed is set out in legislative formula in the 1956 Act which refers to the Appropriate Authority (in this case the Secretary General of the Department of Justice) being “satisfied” that the applicant had failed to fulfil the conditions of probation attaching to her probationary position.

143. Accordingly, the Secretary General was required to have reasonable cause to believe that the applicant had not performed in a satisfactory manner and that her general conduct had not been satisfactory.

144. This statutory formula imports a requirement that the Secretary General must discharge those powers in a manner which is bona fide, factually sustainable, not unreasonable, that she is acting intra vires11 and has correctly defined the ambit of the statutory power in question.12 In this challenge, reliance was placed on the elucidation of these principles in the decision of the Court of Appeal (Donnelly, Faherty and Murray JJ.) in Used Car Importers Ireland Ltd v Minister for Finance & Ors [2020] IECA 298.

Application of the test

145. The role of the court in assessing this challenge brought by way of judicial review is not an appellate one. It is not my function to decide between the competing e-mails and interpretations between the parties and decide on the merits as to whether the applicant should or should not hold the post of Senior Legal Researcher in the Department of Justice. Rather, as per the applicable legal test, the issue which arises in this case is whether the Secretary General had sufficient information before her so that she could be satisfied that the applicant had failed to fulfil the conditions of probation attaching to her probationary position – i.e., that she had not: (i) performed in a satisfactory manner; and

(ii) her general conduct had not been satisfactory – and if she was so satisfied, she was then required by the 1956 Act to terminate the applicant’s probationary contract. For the following reasons, in my view, this was a decision which was open for her to make on the basis of the information before her.

O’Higgins C.J. in The State (Lynch) v Cooney [1982] I.R. 337 at 361, Blayney J. in Kiberd v Mr. Justice Hamilton [1992] 2 I.R. 257 at 265, Kiely v Kerry County Council [2015] IESC 97; [2016] 2 I.R. 1 per McKechnie J. at paragraphs 68-72. Waltham Abbey & Ors v An Bord Pleanála & Ors [2022] IESC 30; [2022] 2 I.L.R.M. 417, per Hogan J. at paragraph 28.

146. Whilst the applicant did not commence the role of Senior Legal Researcher until 14 th August 2023, her probation review was carried out generally at the intervals referred to as three, six and nine-monthly review periods which are, in effect, staging posts as part of the probationary review process. Ms. O’Doherty, as the applicant’s line manager was the appropriate person, to assess the applicant as part of the probationary review.

147. In seeking to understand the nature of the power to be exercised in the 1956 Act, the Secretary General is required in the first instance to be ‘satisfied’ that the applicant has failed to fulfil the conditions of probation attaching to her probationary position. It is only when she is so satisfied that the Secretary General is required, by operation of law, “to terminate” the applicant’s “appointment to her probationary position.” Therefore, the termination of the applicant’s appointment to her probationary position as a Senior Legal Researcher was dependent on the assessment by the Secretary General as to whether or not the applicant had failed to fulfil the conditions of probation attaching to her probationary position. Where a statutory provision predicates the exercise of a discretionary power on the existence of certain facts, in resolving a challenge to its exercise in a given case, I must inquire into whether those facts exist and have been taken into account, notwithstanding that the evaluation of those facts is a matter for the Secretary General: see the decision of the Court of Appeal in Used Car Importers Ireland Ltd v Minister for Finance & Ors [2020] IECA 298 (Donnelly, Faherty and Murray JJ.) per Murray J. at paragraph 176.

148. In this case, the Secretary General’s assessment was based on the consideration of the review carried out by Ms. O’Doherty, as line manager, of the applicant’s performance during the period of the probationary contract to determine whether: (i) the applicant performed in a satisfactory manner; and (ii) her general conduct had been satisfactory (the third element relating to whether the applicant was suitable from the point of view of health with particular regard to sick leave was not an issue in this case).

149. In considering the legality of the Secretary General’s decision of 5th June 2024 to terminate the applicant’s appointment on a probationary contract to the position of Senior Legal Researcher, I am required to consider whether her decision – confirming the line manager’s recommendation – that the applicant had failed to fulfil the conditions of probation attaching to her probationary position and had not: (i) performed in a satisfactory manner; and (ii) her general conduct had not been satisfactory, was, on an objective basis, factually sustainable.

150. In State (Daly) v Minister for Agriculture [1987] I.R. 165 (which, although factually distinguishable from the applicant’s case, also concerned the application of section 7 of the 1956 Act), the High Court (Barron J.) after referring to the observation of O’Higgins CJ. in State (Lynch) v Cooney [1982] I.R. 337 at 361 that the Minister’s opinion must be one which was bona fide held, factually sustainable and not unreasonable added that “the court must ensure that the material upon which the Minister acted is capable of supporting his decision.” In State (Daly) the breach of fair procedures was the ministerial failure in that case to disclose any material upon which he acted or the reasons for the action.

151. In this case, each of the three probation reports – the three-month assessment between 7th June 2023 to 6th September 2023, the six-month assessment between 7th September 2023 to 6th December 2023, and the nine-month assessment between 7th December 2023 and 6th March 2024 – included an assessment as to whether the applicant performed in a satisfactory manner and whether she had been satisfactory in general conduct. All of this material, and other information, including the respective positions and arguments of both parties, was before the Secretary General prior to her decision on 5th June 2024.

152. In Used Car Importers Ireland Ltd v Minister for Finance & Ors [2020] IECA 298, the Court of Appeal, per Murray J. at paragraph 176 referred to the following observations of Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at p. 1047 which had been cited by the High Court (O’Hanlon J.) in State (Lynch) v Cooney: “If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist and have been taken into account, whether the judgment has not been made upon a proper selfdirection as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge.”

153. Here the applicant received a satisfactory probationary rating after three months and an unsatisfactory probationary rating after six months. However, it is common case that after her six-month probationary rating, the applicant was informed in early January 2024 that the previous six-month rating would have no bearing on her final review at nine months. This meant, therefore, that the period between 7th December 2023 and 6th March 2024 was significant in assessing whether the applicant had fulfilled the conditions of probation attaching to her probationary position.

154. Earlier in this judgment, I have set out, for example, the engagement which took place between the six and nine-month probation assessments and which culminated in the ninemonth probation report which addressed whether the applicant performed in a satisfactory manner and whether she had been satisfactory in her general conduct. All of this information was before the Secretary General when she was furnished with the file on 30th May 2024, the appeal documents which were relied upon by both the applicant and the line manager and the Appeals Board report and recommendation on 31st May 2024.

155. By way of example, in terms of whether the applicant performed in a satisfactory manner and her request for further details at that time, one of the examples cited above is that on 23rd February 2024, the applicant informed the line manager by email that she had decided that the development of a Power App (in relation to European Arrest Warrants) would be paused pending her return from study/exam/annual leave on 15th April 2024, the line manager states that the applicant was informed that this decision and delay of two months was significant as the development of PowerApps was a Departmental priority, had work schedule implications not only for the line manager’s team but for the programme development team, and had implications for statistical reporting. The applicant takes issue with, and rejects the line manager’s assessment, stating, for example that other members of the team were leaving in this regard and she rebuts this account at paragraph 23 of her affidavit dated 5th December 2023. As with other examples, there is a difference between the line manager’s account of the oral exchange between her and the applicant and the copy e-mail chainage which is exhibited for Friday 23rd February 2024 and Wednesday 28th February 2024. This information was before the Secretary General in the material furnished to her on 30th and 31st May 2024 and prior to her

decision on 5th June 2024.

156. In a further example, referred to earlier in this judgment, the line manager states that she informed the applicant that she had delayed moving forward with correspondence regarding an extradition case concerning the UAE for two months, despite the fact that the line manager had marked it as having wider implications and had also discussed with the applicant the need to have political awareness in such matters and stated that the applicant should have come to her sooner if she was unclear as to how to proceed. Again, relevant e-mails are exhibited beginning, in this example, with one from the applicant to the line manager dated 11th December 2023 and replies dated 12th December 2023. The draft third party notice was sent on 12th February 2024 and the applicant also indicated that she would go to her line manager’s office to discuss it the following day. On 13th February 2024, her line manager referred to their discussion and expressed her concern about the length of time it had taken to draft the third party notice and stated that any matters to do with the UAE should be prioritised and regular updates provided to her. In reply to the applicant’s e-mail attaching the amendments requested which were sent on 13th February 2024, the line manager replied on 6th March 2024 stating that she had understood that she had “cleared this revised wording verbally with you but am now confirming in writing that the revised wording is acceptable. Please ensure to issue it today. I have already spoken to you about the need to be mindful of the wider implications of matters concerning the UAE. If you think that I have not responded on something, or if you are unclear on any aspect, the onus is on you to come to me to discuss it rather than leaving something waiting”.

157. Other e-mails were more supportive of the applicant’s position. In the final page of her Counterstatement document dated 10th April 2024, the line manager instances what she describes as two further examples of lack of attention to detail, the second of which was described as follows: “On 12 February 2024, Peo forwarded to me a draft (two paragraphs) response to a query regarding extraditions. The first paragraph stated clearly that three circumstances arise under the relevant (legislative) section. The answer then proceeded to outline two of those circumstances without referring to the third. I asked her to correct this and to pay more attention when drafting material.” An examination of this email exchange on Monday 12th February 2024 and Tuesday 13th February 2024 confirms that the applicant did in fact refer to the third circumstance and introduced it by reference to the word “Finally”: “Three circumstances arise under this section … First, extradition is possible … The second way in which extradition can be legally established … Finally, extradition is possible in circumstances where a reciprocal arrangement”.

158. Again, as stated earlier, it is not my function to decide the counter-arguments of the parties (for example, in relation to the above e-mail exchanges) in order to be satisfied as to the merits of whether or not the applicant has fulfilled, or failed to fulfil, the conditions of probation attaching to her probationary position as a Senior Legal Researcher.

159. Rather, in the context of the 1956 Act, I have to consider, on an objective basis, whether, in the invocation of her powers under the 1956 Act, the Secretary General acted reasonably having regard to the material and information set out above. I consider that she did act reasonably in being satisfied having regard to this material and the probation assessments carried out, that the applicant had not performed in a satisfactory manner and that her general conduct had not been satisfactory.

160. The applicant also makes a number of complaints centred on what she submits was a breach of fair procedures. For example, at paragraph 8(f) of her Amended Statement of Grounds it is stated that “there was a breach of the requirements of the rules of natural and constitutional justice in circumstances where approval was sought from the Appropriate Authority [i.e., in this case the Secretary General] to terminate the probationary contract of the Applicant prior to the receipt of the Appeals Board Report and subsequent recommendation.”

161. The contractual position in this case confirmed that the applicant’s position as a Senior Legal Researcher would be assessed on a probationary basis which would address inter alia her performance and general conduct. This was carried out by her line manager on a periodic basis: the applicant received a satisfactory assessment on her three-month assessment completed on 6th September 2023; the applicant received an unsatisfactory assessment on her six-month assessment completed on 24th December 2023 and her ninemonth (final) assessment completed on 7th March 2024.

162. Each of those assessments inter alia addressed whether the applicant had performed in a satisfactory manner and whether her general conduct had been satisfactory, both of which were the key aspects of the probationary contract. The line manager had informal meetings with the applicant during the probation period, and in particular after each periodic assessment, had a formal meeting with the applicant. The line manager raised particular issues with the applicant in relation to her performance between the six and nine-month reviews, met with the applicant in person and communicated by e-mail. On the nine-month and final assessment, a meeting took place between the applicant and the line manager on 7th March 2024 which was followed up by notes of that meeting and an email exchange resting with an e-mail from the line manager on 11th March 2024, which referred to the issues of performance and conduct.

163. The applicant invoked the non-statutory appeal process and set out a detailed Statement of Appeal, which particularised in that document further grounds of appeal. This was responded to by the line manager in a counterstatement and these documents were sent to the Appeals Board prior to their hearing. Further written and oral statements were made to the Appeals Board. On 30th May 2024, the Head of HR sent a detailed memorandum, together with documentation which was tabulated to the memorandum, seeking approval in accordance with section 9(1)(f) of the Public Service Management Act 1997 and the Civil Service Regulations Acts 1956 to 2005 to terminate the probationary employment contract of the applicant in her role as Senior Legal Researcher and subsequent reversion to her previous established grade as Legal Researcher. The relevant provisions of the 1956 Act require the Secretary General to terminate the applicant’s appointment to her probationary position where she is satisfied that the applicant has failed to fulfil the conditions of probation attaching to her probationary position. The cut-off date was on or before 5th June 2024 because, as confirmed in the

decision of the High Court (Simons J.) in the Whelan case, the applicant would have been deemed to have passed the 12 months of service in the role of Senior Legal Researcher on 6th June 2024 and by virtue of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. 686 of 2022) the period of probation could not exceed 12 months.

164. On 31st May 2024, the report and recommendation of the Appeals Board, which is nonbinding, was sent to the Secretary General.

165. A large amount of documentation was before the Secretary General, including the documents tabulated at tabs 38 to 82 which were set out in Book 2 of the Book of Pleadings.

166. On 5th June 2024, the Secretary General met with the Department’s Principal Officer in HR and the Head of Corporate who also provided her with a full briefing and background to the case. On that date, the Secretary General issued her decision to the HR department.

167. As set out earlier, the probationary process under the 1956 Act, whilst attracting the requirement of fair procedures, is distinct and different from the disciplinary process and the role of the disciplinary board, which was at issue, in for example, the decision of the High Court (O’Malley J.) in Kelly v The Board of Management of St. Joseph’s National School, Valleymount, County Wicklow [2013] IEHC 392. The probation process and assessments carried out and the ultimate decision of the Secretary General of 5th June 2024 in the applicant’s case, in my view, come within the following principles referred to by Clarke CJ at paragraphs 7.4 to 7.6 of his judgment in Connelly v An Bord Pleanála [2018] IESC 31; [2021] 2 I.R. 752:

“7.4 In this context it is also worth returning to the decision of Fennelly

J. in Mallak. As noted above, at para. 66 of his judgment, Fennelly J.

stated:-

“The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.”

7.5 Therefore, it is possible that the reasons for a decision may be derived in a variety of ways, either from a range of documents or from the context of the decision, or in some other fashion. However, as is clear from the above analysis, this is always subject to the requirement that the reasons must actually be ascertainable and capable of being determined. In this regard, I refer to my judgment in EMI, where I stated at paragraph 6.8:- “While the comments made in Christian related to the specific circumstances of that case and derived from the context of development plan, it seems to me that there is a more general principle at play. Legal certainty requires, as was pointed out in Christian, that it must be possible to accurately determine what the reasons were. There should not be doubt as to where the reasons can be found. Clearly, an express reference in the

decision itself to some other source outside of the decision

document meets that test. Where, however, it is suggested that the reasons can be found in materials outside both of the decision itself together with materials expressly referred to in the

decision, then care needs to be taken to ensure that any person

affected by the decision in question can readily determine what

the reasons are notwithstanding the fact that those reasons do

not appear in the decision itself or in materials expressly referred to in the decision.”

7.6 Again, it is worth emphasising the point made earlier. The range of persons who are able to challenge a particular decision will vary from case to case, as will the extent of their involvement in the process. Thus, as a consequence of the above analysis, the requirement that reasons given for a decision must be adequate necessitates that, where the reasons are not included in the text of the decision itself, they must be capable of being readily determined by any person affected by the

decision. Clearly, the ability of a person who was not involved in the process, but who is nonetheless entitled to challenge the decision, to identify the reasons for a decision, where those reasons are to be derived from a diffuse range of sources, will differ greatly from the ability of a person who was involved in the process to do so.”

168. The applicant fully participated in, and understood the rationale for, the periodic probationary assessments carried out.

169. I, therefore, do not consider that there was a breach of fair procedures (or a breach of the duty to give reasons as a subset of fair procedures) in this case.

VIII. CONCLUSION

170. In summary, accepting that the applicant did not begin working as a Senior Legal Researcher until 14th August 2023, her post had formally commenced on 16th June 2023 and by reference to that date her probation review was carried out by her line manager on the following periodic basis, a three-month assessment was completed on 6th September 2023, a six-month assessment was completed on 24th December 2023 and the nine-month (final) assessment was completed on 7th March 2024.

171. Each of those assessments inter alia addressed whether the applicant had performed in a satisfactory manner and whether her general conduct had been satisfactory which were the key aspects of the probationary contract.

172. The contractual position in this case confirmed that the applicant would be assessed on a probationary basis which would address inter alia her performance and general conduct. In addition to a commentary section which narrated the applicant’s performance and general conduct, the assessment of performance was sub-categorised as to whether:

(i) work was performed accurately and effectively; (ii) work was of good quality, well executed, and meets deadlines; (iii) works well with colleagues, and is part of the team; and (iv) demonstrates the required ability to perform all the duties of the role.

173. In the three-month review these were all answered in the affirmative.

174. In the six-month review, (i), (ii) and (iv) were answered in the negative and (iii) was answered in the affirmative.

175. In the nine-month review, (i), (ii), (iii) and (iv) were answered in the negative.

176. Again, in addition to the commentary section in the probation reports, general conduct was assessed as whether the jobholder’s conduct had been satisfactory in all regards. In the three-month review this was answered in the affirmative. In the six-month and ninemonth reviews, this was answered in the negative. Ultimately, after the successful invocation of a non-statutory appeals process by the applicant, the matter was sent to the Secretary General for her decision.

177. Having regard to the nature of the probationary process under the 1956 Act, and which occurred in this case between June 2023 to June 2024, the circumstances, information and material were such that it was open to the Secretary General to be satisfied that the applicant had failed to fulfil the conditions of probation attaching to her probationary position and to terminate the applicant’s appointment as a Senior Legal Researcher and to revert to her previous position as Legal Researcher.

178. Accordingly, I refuse the applicant the reliefs sought.

IX. PROPOSED ORDER

179. I will make an Order refusing the applicant the reliefs sought by way of judicial review. I shall adjourn the matter for mention to deal with the question of costs at 10:30 on Friday 10th October 2025.

X. APPEARANCES

180. Ms. Mosepele appeared in person.

181. Padraic Lyons SC and Julie Maher BL appeared for the Respondent instructed by the Chief State Solicitors Office.

CONLETH BRADLEY

Friday 3rd October 2025