Wang v Juicy Love Pty Ltd as Trustee trading as Wicked Campers [2022] QIRC 472

Industrial Relations (Tribunals) Rules 2011 (Qld), r 83

Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 232A, 232B, 232D, 232E and 232F

• [1] Mr Yuehai Wang ('the Applicant') filed an application in the Queensland Industrial Relations Commission ('the Commission') seeking orders pursuant to the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act').

• [2] The Applicant commenced employment as a casual mechanic with Juicy Love Pty Ltd as Trustee trading as Wicked Campers ('the Respondent') on 16 January 2019 at their Cairns depot. The Respondent operates a motor vehicle hire business and primarily targets the backpacker and international tourist market.

• [3] On 28 August 2019, the Applicant was injured after being hit by a car whilst walking and sustained significant injuries to his foot.

• [4] On 2 September 2019, the Applicant returned to work with the Respondent.

• [5] On 2 March 2020, the Respondent terminated the Applicant's employment.

• [6] The Applicant filed a general application which the Applicant states was pursuant to s 232E of the WCR Act and r 83 of the Industrial Relations (Tribunals) Rules 2011 (Qld). The Applicant seeks the following orders:

1. Unfair dismissal compensation order.
2. Issue the penalty to employer (Respondent).

• [7] The Applicant filed an amended application on 27 June 2022 seeking the following orders:

1. Further period order for the application.
2. Reinstatement order or compensation order.
3. Penalty order to the respondent.

• [8] The Applicant's evidence was contained in an affidavit filed on 4 July 2022 and oral evidence given at hearing.

• [9] The Respondent's evidence was contained in affidavits of Mr John Webb, a director of the Respondent, filed on 30 June 2022 and 5 July 2022. The Respondent did not provide any further oral evidence at the hearing.[1]

• [10] The Applicant suffered a significant injury to his foot in the incident of 28 August 2019. The orders sought through this application relate to circumstances following this injury.

• [11] It is not disputed between the parties that the Applicant sustained a foot injury and then returned to work prior to being dismissed by the Respondent within 12 months of the injury.

• [12] The Applicant represented himself throughout the proceedings and had the benefit of an interpreter at the hearing. The primary relief sought by the Applicant is reinstatement or compensation with respect to his previous position with the Respondent.

• [13] The Applicant seeks 'a reinstatement or compensation order' pursuant to s 232B of the WCR Act.

• [14] Section 232B of the WCR Act is outlined as follows:

232B Dismissal of injured worker only after 12 months

(1) Within 12 months after a worker sustains an injury, the employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the injury.

(2) This section applies to a dismissal after the commencement of this section even if the worker became unfit before the commencement.

• [15] An 'injured worker' is defined pursuant to s 232A of the WCR Act as being a worker who sustains an injury for which compensation is payable. The material before me is unclear on this point, however, it appears that the Applicant filed a workers' compensation claim that was accepted by WorkCover at first instance. The Respondent sought a review of the WorkCover decision by the Workers' Compensation Regulator who then determined that the claim was one for rejection. It appears that the Applicant appealed the review decision to the Commission, however, this had not been determined at the time of this application.

• [16] It is not necessary to determine whether the Applicant satisfies the definition of 'injured worker' given the other difficulties with this application.

• [17] Section 232B provides that an employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the injury. The Respondent contends that the Applicant was not dismissed because he was unfit for employment because of the injury. The Respondent contends that the Applicant was dismissed solely because of business considerations arising from a lack of available work for the Applicant as a result of the following circumstances:

(a) First, the Respondent's business was heavily impacted by the bushfires which affected significant parts of Queensland during September to December 2019. The Respondent lost considerable business during this period as people were unwilling to travel. This in turn affected the Respondent's cashflow and reduced the need for mechanics in the Respondent's business; and

(b) Second, the cashflow difficulties created by the bushfires were compounded by the onset of the Covid-19 pandemic in early 2020. The pandemic affected the ability and willingness of customers to travel and drastically affected both the outlook for the Respondent's business and the work that was available for many of its staff, including the Applicant.[2]

• [18] Mr Webb provided the following evidence in his affidavit filed on 30 June 2022:

... Covid-19 hit the tourism industry quite hard and naturally the Respondent's business was affected along with everyone else's business in that industry. In the end, the Respondent had very limited work for much of its work force, and as a result the Respondent was forced to terminate the employment of a number of employees, including the Applicant, in order to save the Respondent's business ...[3]

• [19] Mr Webb attached to his affidavit extracts from the Respondent's Rental Car Manager computer booking system, indicating that the Respondent experienced a substantial decline in rental revenue at its Cairns depot over the period 1 November 2019 to 31 January 2020. The Respondent's profit and loss statements for the financial years of 2018, 2019 and 2020 indicate that the profitability of the business had deteriorated substantially over that time.

• [20] In addressing the reason for the Applicant's dismissal, Mr Webb states:

The Applicant's employment with the Respondent was terminated on 2 March 2020 as a result of the economic circumstances outlined above and was not in any way influenced by an injury he may have sustained in the alleged incident or any perceived unfitness resulting from any such injury. After his employment was terminated, to the best of my knowledge and belief the Applicant did not at any time apply to be reinstated to his former position or provide the Respondent with a doctor's certificate certifying that he was fit for employment in his former position.[4]

• [21] The Applicant submits that the Respondent advised him orally that he was dismissed and did not provide any reasons for doing so.

• [22] In the Applicant's submissions filed on 6 December 2021, he states the following:

The employer did not allege that dismiss me because I was unfit for the employment because of the injuries. The reasons are:

(a) The employer did not provide any reason for me when they dismiss me.

(b) In the Conference (On 20 Oct 2021), The employer said that dismiss me because the company business was bad.

• [23] In the Applicant's affidavit filed on 4 July 2022, he states:

(a) The dismissal was within 12 months of I had sustained the injuries.

(b) The dismissal was not because I was unfit for the employment because of the injuries.

(c) Employer informed me the dismissal by oral and did not provide me any reasons.

• [24] The Applicant admits that the Respondent's business was not doing well at the time of the dismissal, submitting the following:

The Applicant admit that Respondent business was not good and the work were very light. That was the reason that the Applicant can return to work after 5 days of the accident and fitted most of work [sic].[5]

• [25] In the Respondent's statement of facts and contentions, the Respondent outlines the following:

The Respondent's business, being a tourism business, was heavily impacted by the bushfires of 2019-2020. The east coast normally relies on the summer trade to ride out the quieter winter months. Cash was not coming in as people were not willing to travel due to the fires. After that the Covid‑19 pandemic continued to wreak havoc on the respondent's cash flow. Hires are being cancelled and vans are not going out. Border closures mean that people do not wish to travel, as most people hiring our vans want to do so to travel between states, not just within one. As a result, there is not as much work for the mechanics to do.

• [26] In the Applicant's closing submissions at the hearing of this matter, he stated the following:

... the employers - the business - I saw that it was not good at that time. They didn't have much work. So I felt embarrassed of - I found it hard to insist of what I should do - I could do. I really - I found - I saw they don't have much business.[6]

• [27] There is no evidence in this matter that the Respondent dismissed the Applicant because he was not fit for employment because of the injury. The Respondent's explanation that the dismissal was due to a downturn in the business is plausible given the circumstances at the time and the financial evidence of a decline in bookings and income. The Applicant does not dispute this explanation, rather, it appears that he supports the contention that the business was not busy at the time of his dismissal. I am satisfied that the Applicant was dismissed because of the business requirements and not because he was unfit for employment because of the injury. In these circumstances, the requirements of s 232B have not been made out.

• [28] Although s 232D of the WCR Act does not apply in circumstances where the Applicant was not dismissed because he was unfit for employment because of the injury, for the sake of completeness I will consider the operation of this section.

• [29] Section 232D of the WCR Act is outlined as follows:

(1) This section applies if an injured worker is dismissed because the worker is not fit for employment in a position because of the injury.

(2) The worker may apply to the employer, within 12 months after the injury, for reinstatement to the worker's former position.

(3) The worker must give the employer a doctor's certificate that certifies the worker is fit for employment in the former position.

(4) This section applies to a dismissal after the commencement of this section even if the worker became unfit before the commencement.

doctor's certificate means a certificate signed by a person registered under the Health Practitioner Regulation National Law to practise in the medical profession, other than as a student.

• [30] The Respondent contends that the Applicant has never applied for reinstatement to his original position after his dismissal and has never provided a doctor's certificate certifying that he is fit for employment in his former position.

• [31] On the basis that no application was made to the employer for reinstatement and a doctor's certificate was not provided to the Respondent, the Respondent was not required to reinstate the Applicant. Consequently, the Applicant had not complied with the requirements of s 232D of the WCR Act and the power to order reinstatement pursuant to s 232E(2) of the WCR Act is not enlivened.

• [32] Section 232E of the WCR Act provides that, in circumstances where s 232D is satisfied, the Commission may order that the employer reinstate the worker to the worker's former position if satisfied the worker is fit for employment in the former position. Even if the requirements of s 232D of the WCR Act had been met, the Applicant's medical evidence does not support a determination that he is fit for employment in his former position. The report by the Applicant's Orthopaedic Surgeon, Dr Pozzi, states that his injury 'is preventing him to going back to any meaningful work at the moment'.[7] There is no medical evidence indicating that the Applicant is fit for employment in his former position.

• [33] Section 232F(2) of the WCR Act provides that the only order the Commission may make on an application under section 232E is a reinstatement order. Accordingly, the Commission does not have the power to order compensation as sought by the Applicant.

• [34] The Applicant lodged an application for compensation with WorkCover in relation to his injury on 23 April 2021. The Applicant submits that the Respondent provided misleading information to WorkCover as part of the compensation assessment process. The Applicant also contends that the Respondent failed to report the Applicant's injury to WorkCover within the statutory timeframe and should be subject to a 'penalty order'. The Commission does not have jurisdiction to hear and decide complaints regarding alleged contraventions of the WCR Act of this nature.[8]

• [35] The Applicant appears to have misconceived the application of the Industrial Relations Act 2016 (Qld) ('the IR Act') to his circumstances, making multiple references to both the WCR Act and the IR Act throughout his submissions. The Applicant submits that he did not apply for reinstatement within 21 days of the dismissal as he had received legal advice advising that the dismissal was lawful. The Applicant was a national system employee and his employer was a constitutional corporation at the time of the dismissal. The appropriate forum for an unfair dismissal application relating to the termination of the Applicant's employment is the Fair Work Commission. The unfair dismissal provisions of the IR Act have no application to the Applicant in these circumstances.

• [36] The onus lies with the Applicant to establish that he satisfied the necessary conditions for a reinstatement order pursuant to s 232E of the WCR Act. The evidence does not support a conclusion that the Applicant was dismissed because he was not fit for employment because of his injury. There is no evidence that the Applicant applied to the Respondent to be reinstated to the former position or provided the employer with a doctor's certificate certifying that he was fit for employment in his previous position. In all of those circumstances, there was no obligation on the Respondent to reinstate the Applicant pursuant to s 232D of the WCR Act.

• [37] For the foregoing reasons the application is dismissed.

[1] The Respondent was cross-examined by the Applicant.

[2] Respondent's submissions filed on 30 June 2022, [28].

[3] Affidavit of John Webb filed on 30 June 2022, [8].

[5] Applicant's submissions attached to the amended application filed on 27 June 2022, [39].

[7] Report of Dr Pozzi dated 11 October 2021.

[8] See s 579 of the WCR Act.