Gary Black v The Commonwealth of Australia
(Department of Defence)  FWA 293 (14 January
FWA reinstates high level public servant despite
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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