Hartley v State of Queensland

Mr H. McDonald of Crown Law with Ms C. Gambino of the Office of Industrial Relations

• [1] Mr Daniel John Hartley was employed by the State of Queensland, through the Office of Industrial Relations ('OIR') in the position of Principal Inspector (Industrial), Work Health and Safety Regional Services, Work Health and Safety Compliance and Field Services. Mr Hartley's place of employment was Maryborough.

• [2] On 14 March 2024, OIR terminated Mr Hartley's employment on the grounds of various substantiated allegations of inappropriate conduct in the workplace and, or in the alternative, unprofessional behaviour in the workplace. By application filed on 5 April 2024, Mr Hartley applied for reinstatement contending that his dismissal was harsh, unjust or unreasonable.

• [3] For reasons that will be later explained, OIR sought the leave of the Commission for the late filing of an affidavit of Ms Vicki Bennett, Principal Inspector (Psychosocial) ('Ms Bennett'). Despite my varying two existing Directions Orders to permit Ms Bennett's affidavit to be filed late, with a consequential extension of time given to Mr Hartley to file any material in reply, OIR did not file and serve Ms Bennett's affidavit by the new date.

• [4] By application in existing proceedings filed on 22 August 2025, OIR applies for an order, pursuant to r 56 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') to use, in evidence, Ms Bennett's affidavit which was filed on the same date, being 22 August 2025 ('OIR's application'). It is not in dispute that Mr Hartley, by email sent to OIR's lawyers on 31 July 2025, had withheld his requested consent for Ms Bennett's affidavit to be filed late.

• [5] The question for my determination is whether, pursuant to r 56 of the Rules, I should grant OIR's application and make a decision allowing OIR to use Ms Bennett's affidavit in evidence at the hearing of Mr Hartley's application for reinstatement.

• [6] Following an investigation report about Mr Hartley's alleged inappropriate workplace conduct and, or in the alternative, unprofessional workplace behaviour over the period of June 2022 to March 2023, in 2023 OIR commenced a disciplinary process against Mr Hartley.

• [7] Ultimately, by letter dated 29 January 2024, Mr Peter McKay, Deputy Director-General of OIR, informed Mr Hartley that in respect of the five principal allegations made against him, all the allegations, other than one sub-allegation contained in the first principal allegation, were substantiated. One of the substantiated allegations, Allegation 4, was that on 17 March 2023, Mr Hartley engaged in unprofessional and inappropriate workplace behaviour towards presenters during a training session for the 'Managing the Risk of Psychosocial Hazards At Work, Code Of Practice 2022' ('the fourth allegation'). Mr McKay found that one of the presenters at the training session was Ms Bennett.

• [8] Mr McKay then asked Mr Hartley to show cause why the proposed disciplinary action of the termination of his employment should not be taken against him.

• [9] Following Mr Hartley's response provided on 12 and 13 February 2024, by Mr McKay's letter dated 13 March 2024, Mr Hartley's employment was terminated effective the date he received Mr McKay's letter.

• [10] By application filed on 5 April 2024, Mr Hartley applied to this Commission for reinstatement. Mr Hartley's application was not resolved by conciliation and has been referred to me for arbitration.

• [11] Between 21 November 2024 and 5 June 2025, I issued eight Directions Orders for the purposes of the hearing and determination of Mr Hartley's application for reinstatement. For various reasons, those Directions Orders have had to be vacated and varied.

• [12] The seventh further Directions Order I issued on 9 May 2025 directed that OIR file and serve affidavit material for each witness that it proposed to call at the hearing by Tuesday, 27 May 2025, and for Mr Hartley to then file and serve any affidavit material in reply by 6 June 2025.

• [13] By email from its lawyers sent on 27 May 2025, OIR advised that it would be filing seven (of eight) affidavits containing the evidence of the witnesses it proposes to call at the hearing, however due to a family medical emergency, Ms Bennett would not be in a position to execute her affidavit until the following week. As a consequence, I granted OIR an extension until 3 June 2025 to file Ms Bennett's affidavit and gave Mr Hartley until 13 June 2025 to file and serve affidavit material in reply.

• [14] By further email from its lawyers sent on 4 June 2025, OIR advised that Ms Bennett was still not in a position to execute her affidavit and requested a further extension to 10 June 2025 to file Ms Bennett's affidavit with a corresponding extension given to Mr Hartley to file and serve his affidavit material in reply. An eighth further Directions Order was made by me on 5 June 2025 giving effect to the request made by OIR. Ms Bennett's affidavit was not filed on 10 June 2025.

• [15] Following a further mention of the matter on 11 July 2025, the hearing of Mr Hartley's application for reinstatement was set down for 24 to 28 November 2025.

• [16] OIR's application was then filed on 22 August 2025.

• [17] OIR read the affidavit of Mr Harrison Culley McDonald filed on 22 August 2025. Mr McDonald is a Senior Principal Lawyer, employed by the Crown Solicitor, who has conduct of the present matter on behalf of OIR.

• [18] Mr McDonald's evidence is that OIR, at the hearing of Mr Hartley's application for reinstatement, wishes to lead evidence in chief from Ms Bennett by way of affidavit. Mr McDonald's further evidence is that despite Ms Bennett finishing her draft affidavit on 23 May 2025, and having arranged for Ms Bennett to execute her affidavit on 27 May 2025, Ms Bennett had been absent from work, between 27 May 2025 and 23 July 2025 due to a family medical emergency involving her daughter.

• [19] Mr McDonald's evidence then is that on 29 July 2025, Ms Bennett executed her affidavit and, on the same date, he sought Mr Hartley's consent for OIR to file Ms Bennett's affidavit. By email sent on 31 July 2025, Mr Hartley did not provide his consent for OIR to file Ms Bennett's affidavit.

• the evidence contained in Ms Bennett's affidavit is limited to the events of the psychosocial hazards training session on 17 March 2023, and Ms Bennett's view of Mr Hartley's impact on the work environment arising from that training session;

• Ms Bennett's evidence is important for OIR's case, however, it is not evidence that takes Mr Hartley by surprise because her evidence:

• - has a narrow scope, relating to the events of the 17 March 2023 training session;

• - generally accords with the evidence of other witnesses who were present during the 17 March 2023 training session which Mr Hartley received by service of OIR's affidavit material on 27 May 2025; and

• - is consistent with the responses Ms Bennett gave during her interview in the investigation process, the transcript of which appeared at attachment 15 to the investigation report which Mr Hartley received on 24 October 2023.

• [21] Today, amongst other matters, OIR submitted that:

• the discretion contained in r 56 of the Rules is unfettered, should be exercised judicially and should be exercised in accordance with r 6 of the Rules which provides that the purpose of the Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense; and

• by way of analogy to the applicable principles for allowing amendments to proceedings, the order it seeks will allow the determination of the real issues in the proceeding and does not advance new claims.

• [22] Today, Mr Hartley submitted that he objects to the order sought by OIR because:

• the service on him of Ms Bennett's affidavit has been delayed twice before;

• at the mention of the matter on 11 July 2025, when the trial dates were set, no mention was made by OIR about Ms Bennett's evidence; and

• he is presently in some difficult health and other circumstances (that I do not propose to particularise in these reasons) which make it difficult for him to respond to Ms Bennett's evidence and to OIR's material generally.

If an affidavit must be filed within a particular time, an affidavit filed after that time can not be used in evidence unless the court, commission or registrar otherwise decides, with or without conditions.

• [24] In my opinion, pursuant to r 56 of the Rules, I should make a decision allowing Ms Bennett's affidavit to be used in evidence at the hearing of Mr Hartley's reinstatement application. This is for three reasons.

• [25] First, in my view, Ms Bennett's evidence is directly relevant to a matter in issue in Mr Hartley's application for reinstatement. In this regard, I have had the benefit of considering the material that has been filed by both parties in respect of the hearing and determination of Mr Hartley's application for reinstatement. In the affidavit of Mr McKay filed on 27 May 2025, exhibit 'PM-07' is Mr McKay's letter to Mr Hartley dated 23 October 2023 asking Mr Hartley to show cause why disciplinary findings, the subject of the five allegations set out by Mr McKay in that letter, should not be made. In respect of the fourth allegation, the particulars set out in paragraphs 78 to 83 of that letter concerned Mr Hartley's alleged conduct towards Ms Bennett at the training session on 17 March 2023. Mr Hartley, in his material, does not dispute that Ms Bennett was present at the training session on 17 March 2023 which is the subject of the fourth allegation. Mr Hartley's impugned conduct towards Ms Bennett, during that training session, was ultimately found to be substantiated by Mr McKay.

• [26] For these reasons, it seems to me that Ms Bennett's evidence is directly relevant to OIR's case in response to Mr Hartley's claim that his dismissal was harsh, unjust or unreasonable.

• [27] Secondly, on the evidence before me, the delay in the lawyers for OIR being able to have Ms Bennett execute her affidavit, for the purposes of it being filed and served, is not due to any dilatory conduct on the part of those lawyers, or on the part of Ms Bennett or on the part of anyone else from OIR. On the evidence before me, the delay is due to the particular personal circumstances faced by Ms Bennett that caused her to be absent from work between 27 May 2025 and 23 July 2025.

• [28] Finally, Mr Hartley had Ms Bennett's affidavit served on him on 22 August 2025 as part of OIR's application. The trial will be heard between 24 and 28 November 2025. Given the length of time between the date Mr Hartley was appraised of the content of Ms Bennett's affidavit and the date of the trial, namely, a period of approximately three months, it cannot be said that Mr Hartley is put to any real prejudice by the late serving on him of Ms Bennett's affidavit.

• [29] I am sympathetic to Mr Hartley's personal circumstances as he described them to me today. While it is a misfortune that Mr Hartley will be representing himself and that does not give him the privilege of not complying with any directions issued by the Commission, the personal circumstances he described to me today are a different matter.

• [30] Because of those circumstances, Mr Hartley requested some reasonable time to respond to Ms Bennett's material. I will give Mr Hartley that reasonable time to file and serve any affidavit material in reply and an outline of argument in reply. That course was not opposed by OIR.

• [31] I will also mention the matter after the date I set for Mr Hartley to file and serve that material.

• [32] For these reasons, I will grant OIR's application. I determine that Ms Bennett's affidavit, filed on 22 August 2025, can be used by OIR in evidence in the hearing of Mr Hartley's application for reinstatement to be heard between 24 and 28 November 2025.

• [33] However, because of Mr Hartley's present circumstances, he must also be given a reasonable time to file and serve any affidavit material in reply and an outline of argument in reply. I will give Mr Hartley until Friday, 17 October 2025 to file and serve that material.

1. Pursuant to r 56 of the Industrial Relations (Tribunals) Rules 2011, the affidavit of Ms Vicki Margaret Bennett, filed on 22 August 2025, can be used in evidence by the Respondent in the hearing of Matter TD/2024/30 on 24 to 28 November 2025.

1. The Applicant file and serve any affidavit material in reply and an outline of argument in reply (no more than 5 pages, type-written, line and a half spaced, 12 point font size and with numbered paragraphs and pages) by 4.00 pm on Friday, 17 October 2025.

1. That there be a telephone mention of the matter at 9.00 am on Tuesday, 28 October 2025.