Gary Black v The Commonwealth of Australia (Department of Defence) [2011] FWA 293 (14 January 2011)
FWA reinstates high level public servant despite expensive mistake
Mr Black had been employed with the Department of Defence in various roles for 24 years. His employment was terminated on 3 June 2010 when an investigation confirmed that there had been a lack of probity in procurement and management practices with regard to the sale of a large amount of contaminated fuel to a South Australian entity that had a poor record of paying its invoices, and eventually went into administration before it paid for the fuel that it had bought. The loss to the Commonwealth as a result of his actions was in the order of $3.9 million.
The Department maintained that Mr Black breached their Code of Conduct by failing '... to adequately protect the interests of the Commonwealth by causing or contributing to a Commonwealth loss by misconduct or by deliberate and serious disregard of a reasonable standard of care'.
Mr Black did not dispute the factual matrix of events which led to his employment being terminated, including the loss of $3.9 million after his recommendation that was deficient in the information that it conveyed. However, he did dispute the level of his culpability and maintained that the penalty applied to him was harsh in all the relevant circumstances.
Mr Black sought reinstatement to his former position with continuity of service but made no claim for compensation for lost salary. Mr Black was previously presented with a commendation for the performance of his duties and in 2003 was awarded an Australia Day Medallion and certificate for his 'exceptional support to the Australian Defence Force in the provision of Aviation, Maritime and Ground Fuels as Manager (Procurement and Logistics) in the Joint Fuels and Lubricants Agency'.
Mr Black's witness statement detailed his efforts to gain other employment, his financial and family circumstances, his health situation and the health situation of his immediate family members, which was taken into account by Commissioner Roberts in coming to his decision.
After hearing evidence from four witnesses from Defence and Defence Legal, Commissioner Roberts made an order that Mr Black's employment be reinstated. He stated that Mr Black had obviously made a huge error in judgement and then engaged in a process of attempting to mitigate the effects on himself of his error. Some of those attempts at mitigation did not reflect well on him. However, he went on to observe that:
'It comes down to this: a senior employee of some 24 years standing made one, admittedly large, error which caused the Commonwealth to lose some 3.9 million dollars ... [in addition] ...his family circumstances, including various health issues ... should be taken into account ...
During her consideration of how to deal with Mr Black, Ms Vella [the DMO's director of personnel] considered several possible alternative sanctions to dismissal. In my view, it would have been more appropriate in Mr Black's case to have applied any, and possibly all, of those sanctions against him but Ms Vella chose the ultimate sanction of termination of employment. In my view, her decision was harsh and I so find'.
The applicant's actions in contributing to the loss of his employment made it reasonable that some penalty apply to him. As such, the Department was not liable for salary or wages or leave accrual for the period from the termination of employment until the date of reinstatement. His service with the Department was otherwise to be treated as continuous.
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