Wang v Juicy Love Pty Ltd as Trustee trading as Wicked Campers [2025] ICQ 25

s 232B had not been established on the following basis:

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.[7]

• [28] The Commission further found as a consequence of the Commission's finding that s 232B had not been established, that s 232D did not apply.

• [29] Section 232D of the WCR Act provides for the reinstatement of a worker 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] Further, s 232E empowers the Commission with the discretion to order reinstatement on the following terms:

(1) This section applies if the employer fails to immediately reinstate the worker under section 232D.

(2) The following persons may apply to the industrial commission for an order that the employer reinstate the worker to the worker's former position (a reinstatement order) -

(b) an employee organisation of which the worker is a member, with the worker's consent.

(3) The commission may make a reinstatement order if satisfied the worker is fit for employment in the former position.

(4) The order may specify terms of reinstatement including, for example, the day the reinstatement is to take effect.

• [31] With respect to the application of s 232E, the Commission accepted that s 232D had not been complied with and concluded:

• [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'. There is no medical evidence indicating that the Applicant is fit for employment in his former position.[8]

• [32] By application filed on 14 December 2022, the Appellant appealed against the Commission's decision to this Court. The Appellant pursues eight grounds of appeal by which he contends the decision is vitiated by errors of law.

• [33] The grounds of appeal, relevantly summarised, are as follows:

(a) the Commission erred in failing to determine the Appellant is an injured worker pursuant to ss 11 and 32 of the WCR Act ('ground one');

(b) the Commission erred in that it did not consider that there is no dispute that the Appellant is an injured worker, and the injury gave rise to an entitlement to compensation from and on 28 August 2019 pursuant to the WCR Act ('ground two');

(c) the Commission erred in failing to make an order pursuant to s 317(2) of the Industrial Relations Act 2016 (Qld) ('IR Act') ('ground three');

(d) the Commission erred in failing to appropriately understand the Appellant's statements and allegations ('ground four');

(e) the Commission erred in failing to determine that the dismissal was because of the injury, to get out of the employer's responsibility for an injured worker ('ground five');

(f) the Commission erred by failing to consider that the Appellant's previous lawyer provided him with incorrect legal advice ('ground six');

(g) the Commission erred in that it applied s 232B(1)(2) of the WCR Act to the Appellant's application, because the Appellant was not unfit for work when he was dismissed by the Respondent ('ground seven'); and

(h) the Commission erred in failing to give a further period of time to the Appellant to provide "the Medical Certificate", because the Appellant was unfit for his employment at the time of the hearing on 27 July because the Appellant had undergone significant surgery 20 days before the hearing ('ground eight').

• [34] An appeal from the Commission about a decision made under the WCR Act lies pursuant to ch 13 of the WCR Act.[9]

• [35] Section 561 of the WCR Act provides for an appeal to the Industrial Court as follows:

(1) A party aggrieved by the industrial magistrate's or the industrial commission's decision may appeal to the industrial court.

(2) The Industrial Relations Act 2016 applies to the appeal.

(3) The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.

• [36] Pursuant to s 562(1) of the WCR Act, in deciding an appeal, the Industrial Court may confirm the decision,[10] or vary the decision,[11] or set aside the decision and substitute another decision.[12]

Failing to consider relevant considerations and taking into account irrelevant considerations

• [37] Grounds one, two, four, five, six and seven contend that the Commission either failed to consider a relevant consideration, or alternatively, took into account an irrelevant consideration.

• [38] In Queensland Teachers Union of Employees v State of Queensland (Department of Education) (No 2),[13] his Honour, Davis J considered the concept of relevant and irrelevant considerations in the following terms:

The 'something more' requires reference to the dual concepts of 'relevant considerations' and 'taking into account'. The term 'relevant considerations' is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J) it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be 'mandatory consideration'. Further, a matter traditionally described as an 'irrelevant consideration' is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.[14]

• [39] It is convenient for ground one and ground two to be dealt with together.

• [40] Ground one and ground two each contend, respectively, that the Commission:

(a) failed to determine that the Appellant was an injured worker pursuant to ss 11 and 32 of the WCR Act; and

(b) failed to consider that there is no dispute that the Appellant is an injured worker and the injury gave rise to an entitlement to compensation from and on 28 August 2019 pursuant to the WCR Act.

• [41] In support of ground one, the Appellant refers to paragraph 15 of the Primary Decision which is set out as follows:

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.[15]

• [42] The Appellant submits that the Commission erred because the Appellant was applying for reinstatement as an "injured worker", and therefore the Commission must have regard to whether the Appellant was an "injured worker" or not.[16]

• [43] The Appellant submits that the definition of "injured worker" is set out in s 11 and 32 of the WCR Act.

• [44] However, each of the terms "injured worker" and "injury" for the purpose of ch 4 pt 6 of the WCR Act are relevantly defined in s 232A of the WCR Act.

• [45] Section 232A of the WCR Act falls within Chapter 4, "Injury management", Part 6, "Protection for injured workers".

• [46] The objects of ch 4 are set out in s 208 of the WCR Act as follows:

(1) This chapter applies if a worker sustains an injury for which compensation under chapter 3 is payable.

(2) The object of this chapter is to provide for appropriate medical treatment, hospitalisation and rehabilitation of the worker.

(3) This section is subject to part 5A.

• [47] Section 232A provides for definitions for terms used in pt 6.

• [48] Relevantly, s 232A defines "injured worker" to mean "a worker who sustains an injury".

• [49] The term "injury" means "an injury for which compensation is payable".

• [50] The Commissioner was correct to have regard to these definitions when considering the matter.

• [51] Section 232B operates to protect an injured worker (within the meaning of s 232A) from being dismissed within 12 months of sustaining the injury solely or mainly because the worker is not fit for employment in a position because of the injury.

• [52] The injury referred to in s 232B is an injury for which compensation is payable.

• [53] As noted above, the Commissioner determined that it was unnecessary to determine if the Appellant was an injured worker because she accepted that the dismissal was not solely or mainly because the worker was not fit for employment in a position because of the injury.

• [54] It follows that because the Commission made this finding that it was not necessary to determine if the Appellant was an injured worker.

• [55] This is because, even if the Commission had found that the Appellant was an injured worker, the accepted sole or main cause of the dismissal, being the Respondent's economic circumstances, remains undisturbed with the consequence that s 232B does not apply.

• [56] In any event, the material before the Commission is that whilst the Appellant lodged an application for compensation, he did so outside the time prescribed in s 131 of the WCR Act. The Workers' Compensation Regulator made a decision rejecting the application for compensation on the basis that it was filed out of time. The Appellant has appealed the decision of the Regulator. At the time of the hearing that appeal had not been determined. Consequently, at the time the Primary Decision was made the Appellant did not at that point have an "injury" within the meaning of s 232A of the WCR Act.

• [57] On the basis of the reasoning referred to above, ground one is dismissed.

• [58] Further, the Appellant submits that the Commission erred in that it did not consider that there is no dispute that the Appellant is an injured worker and the injury gave rise to an entitlement to compensation pursuant to the WCR Act from and on 28 August 2019.

• [59] The Appellant submits that the Commission failed to take into consideration the following:

(a) that the Regulator was satisfied that the Appellant was an injured worker and entitled to compensation for his injuries which arose on 28 August 2019; and

(b) that the Regulator rejected the Appellant's Workcover compensation application because the Appellant did not lodge the claim within six months.[17]

• [60] With respect to ground two, the Commission identified the status of the Appellant's application for compensation and further identified that the Regulator's decision to reject the application for compensation was subject to an appeal which had not yet been determined. It follows, that there was a dispute about whether the Appellant was an "injured worker" and/or had sustained an "injury" pursuant to s 232A of the WCR Act.

• [61] In his submissions in reply, the Appellant sought to rely on additional medical evidence to attempt to establish that he had sustained a work-related injury that had resulted in a permanent impairment. The "evidence" he referred to was a list of medical reports included in his submissions in reply.[18]

• [62] The contents of the reports are not before the Court.

• [63] Pursuant to s 561(3) of the WCR Act, the Court may order that additional evidence be heard. There is no formal application before the Court and the additional medical evidence listed only referred to the name of the medical practitioners and the date of the reports. Accordingly, neither the Court nor the Respondent is on notice with respect to the nature of the medical evidence.

• [64] In any event, the purpose for which the Appellant seeks to rely on the medical evidence is misplaced in the context of this appeal. The Appellant states that the additional medical evidence will "reduce the dispute that":

1. Did the 28 August work-related injuries resulted the Appellant in permanent impairment?
2. Does the Appellant satisfied s 34 of Anti-Discrimination Act 1991?[19]

• [65] Neither of the matters identified by the Appellant are relevant to the determination of this appeal. Consequently, the admission of such evidence is not necessary in the interest of justice, and the evidence would not likely change the result of the appeal.[20] Accordingly, the Court will not consider this matter further.

• [66] For the foregoing reasons, ground two is dismissed.

• [67] The Appellant submits that the Commission erred in failing to make an order pursuant to s 317(2)(b) of the IR Act to give an extension of time for any application for reinstatement.

• [68] The Appellant submits that because he applied for a further period to file an application for reinstatement, "the Commission must make an order for this application" pursuant to

s 317(2)(b) of the IR Act.

• [69] The Commission correctly concluded that s 317 of the IR Act had no application to the proceedings before it. At paragraph 35, the Commissioner noted:

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.[21]

• [70] The application was commenced pursuant to s 232E of the WCR Act.

• [71] Section 232E of the WCR Act, as previously noted, is a specific provision applying to a worker who sustains an injury within the meaning of s 232A. The provision protects such a worker from being dismissed within 12 months of sustaining the injury if the sole or main reason for the dismissal was because the worker is not fit for employment in a position because of the injury.

• [72] If a worker is dismissed within the 12-month period, then the worker may apply to the employer for reinstatement in accordance with s 232D of the WCR Act. It is only if an employer fails to immediately reinstate the worker pursuant to s 232D, that the worker may then apply, pursuant to s 232E of the WCR Act, for a reinstatement order.[22]

• [73] Accordingly, the unfair dismissal regime provided for in ch 8 pt 2 div 2 of the IR Act is distinct from and not applicable to this matter.

• [74] The relief arises from, and is being sought pursuant to, the WCR Act, not the IR Act. The Commissioner's conclusion in this regard is correct. Further, the IR Act would have no application to the Appellant in any event as he was a "national system employee" within the meaning of that term as it appears in the Fair Work Act 2009 (Cth) ('FW Act').

• [76] The Appellant submits that the Commission erred in failing to appropriately understand the Appellant's statements and allegations.

• [77] The Appellant submits that his affidavit stated:

(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.

• [78] The Appellant submits that what his statement in his affidavit meant was the following:

1. The dismissal was within 12 months of the Appellant sustained the injury;

1. The Appellant did not become unfit [sic] the employment when the Respondent dismiss [sic] him.

1. The Respondent used invalid method to dismiss the Appellant.[23]

• [79] The Appellant contends that the Commission erred in failing to determine that the dismissal was because of the injury. In support of this contention, the Appellant now argues that when the Appellant sustained the injury, the Respondent's business was normal and that at the time of the dismissal it was still running.

• [80] The Appellant's argument in ground four, that the Commission failed to understand his position at the hearing, appears to be an attempt by the Appellant to, at the very least, reframe, for the purpose of this appeal, his evidence and submissions before the Commission. The difficulty for the Appellant, in putting forward this contention, is that it is contradictory to the clear and cogent evidence and submissions made by the Appellant at the hearing before the Commission.

• [81] Further, the Respondent provided uncontradicted evidence that it was the economic circumstances which were the sole or main reason for the dismissal. This evidence was available to the Commission to be accepted and was done so by the Commissioner. The evidence and submissions made by the Appellant to a large degree accorded with the Respondent's position with respect to the economic circumstances at the time of the dismissal. It was appropriate for the Commissioner to have regard to the totality of the evidence in the course of making the decision.

• [82] It follows that ground four is dismissed.

• [83] The Appellant submits that the Commission erred in failing to determine that the dismissal was because of the injury, on the basis that the Respondent did not comply with the law to "get out of the employer's responsibility for an injured worker".

• [84] The Appellant contends that the Respondent "applied multiple illegal methods to get out of an employer's responsibility for an injured worker". This argument appears to rely on various duties on an employer arising under the WCR Act. This includes an employer's duty to report an injury,[24] the duty pursuant to s 232B and a duty not to provide false or misleading information or documents.[25] In his submissions in reply, the Appellant also alleges contraventions of the Anti-Discrimination Act 1991 (Qld) by the Respondent.

• [85] Further, the Appellant submits that the Commission failed to consider the Respondent's character before accepting the Respondent's explanation and failed to apply s 232B of the WCR Act to these circumstances.[26]

• [86] If the Appellant wished to put questions of credit to Mr Webb, then that should have occurred before the Commission below. The Appellant did not do so, and consequently, Mr Webb's evidence remained uncontradicted.

• [87] In any event, the allegation made regarding the Respondent adopting "illegal methods" to avoid discharging its duties under the WCR Act and other alleged contraventions are unfounded, scandalous, and consequently, rejected. The Respondent has not been found to have been in breach of its duties in the proceedings below, and indeed, the factual matters the Appellant seeks to rely on in making such allegations are clearly in dispute between the parties.

• [89] The Appellant submits that the Commission erred in that it did not consider that the Appellant's previous lawyer provided incorrect legal advice to him.

• [90] The Appellant states that he relied on the advice of his lawyer that he was a casual employee and not entitled to relief. It is not clear the context within which this advice was given and whether it was given in relation to the Appellant's right to seek reinstatement pursuant to the FW Act or to seek the protection of s 232B of the WCR Act.

• [91] In any event, even if it is accepted that the Appellant received incorrect legal advice with respect to his entitlement to seek reinstatement pursuant to s 232D, that does not overcome the finding, which is upheld, that the dismissal was not solely or mainly because the Appellant is not fit for employment in a position because of the injury. Consequently, the protection provided by s 232B does not apply to the Appellant, and consequently, the Appellant was not entitled to apply for reinstatement pursuant to

s 232D of the WCR Act or to subsequently apply to the Commission for reinstatement orders pursuant to s 232E of the WCR Act.

• [93] The Appellant submits that the Commission erred in that it applied s 232B(1) and (2) of the WCR Act to the Appellant's application because the "Appellant did not become unfit of the employment when the Respondent dismiss [sic] him".

• [94] The Appellant now submits that when the Respondent dismissed him on 2 March 2020, the Appellant had not yet become unfit for employment.

• [95] If that was the case and the Appellant was fit at the time when he was dismissed then the provisions of s 232B are not engaged. Section 232B is engaged, inter alia, when the dismissal is solely or mainly because the worker is not fit for employment in a position because of the injury.

• [96] Ground seven is absurd and inconsistent with the Appellant's position below and on this appeal.

• [98] The Appellant submits that the Commission erred in failing to give a further period to the Appellant to provide medical evidence, because the Appellant was unfit for employment when the Appellant appeared at the reinstatement hearing on 27 July 2022, on the basis that the Appellant had undergone significant surgery 20 days before the hearing.

• [99] It is not immediately apparent from the reasons that this was a matter dealt with in the proceedings below.

• [100] In any event, the Appellant's submissions do not have regard to the requirement of ch 4 pt 6 of the WCR Act.

• [101] As noted already, the Commission correctly found that s 232B of the WCR Act had not been engaged in the circumstances of this matter as it was found that the sole or main reason for the dismissal was the Respondent's economic circumstances.

• [102] Further, the Appellant had not sought reinstatement to his former position in accordance with the requirement of s 232D. In applying to an employer to be reinstated to a former position a worker must, pursuant to s 232D(3), give the employer a doctor's certificate that certifies the worker is fit for employment in the former position. The Appellant did not take either of these steps.

• [103] Section 232E provides that a worker may apply to the Commission only if the employer fails to immediately reinstate the worker under s 232D.[27] Relevantly, s 232E(3) provides that a reinstatement order may be made if the Commission is satisfied the worker is fit for employment in the former position.

• [104] The requirement in s 232D(3) that the worker provide a doctor's certificate certifying that the worker is fit for employment is in mandatory terms. Accordingly, the Appellant was, pursuant to s 232D, required to provide such a doctor's certificate to the Respondent. It is not controversial, that the Appellant neither sought reinstatement with the employer or provided a doctor's certificate in accordance with s 232D. It follows that there was no failure by the Respondent to immediately reinstate the Appellant under s 232D. Consequently, pursuant to s 232E(1), no application for reinstatement can be made to the Commission.

• [105] Even if a valid application had been made, the Appellant now appears to argue that, at the time he appeared before the Commission, he was unfit for employment. Section 232E(3) provides that the Commission may make a reinstatement order if satisfied the worker is fit for employment in the former position. The Appellant's fitness for work is clearly a matter that must be considered by the Commission when exercising its discretion to invoke a reinstatement order.

• [106] Finally, the Appellant contends that the Commission ought to have granted him a "further period" within which to provide a medical certificate for the purpose of s 232D of the WCR Act.

• [107] The Commission's powers when considering an application made pursuant to s 232E are limited by the operation of s 232F(2). Section 232F(2) relevantly provides:

However, the only order the commission may make on an application under section 232E is a reinstatement order under the section.

• [108] Accordingly, the Commission when considering an application made pursuant to s 232E may only make a reinstatement order. The Commission does not have the power to order an extension of the operation of s 232D in an application made pursuant to s 232E of the WCR Act.

• [109] On this basis, ground eight is dismissed.

• [110] The Appellant has not established an error in the decision of the Commission. The Commission discharged the task it was required to undertake by considering and properly applying the relevant statutory provisions to the evidence relied on. The findings made with respect to the evidence were available to be made on the material before the Commissioner.

• [111] The matters argued under each ground of appeal by the Appellant have not succeeded in disturbing the finding that the dismissal was solely or mainly because of the Respondent's economic circumstances, and accordingly, the dismissal did not enliven s 232B of the WCR Act.

• [112] Further, it remains undisturbed by the appeal that the Appellant did not comply with the requirements set out in s 232D to seek reinstatement. Accordingly, the Appellant was not entitled to seek a reinstatement order pursuant to s 232E of the WCR Act.

• [113] Accordingly, the appeal is dismissed and the decision of the Commission is confirmed.

1. The decision of the Commission dated 5 December 2022 is confirmed.

1. An application for costs, if any, should be made by the Respondent within

[1] Wang v Juicy Love Pty Ltd as Trustee trading as Wicked Campers [2022] QIRC 472 ('Primary Decision').

[2] Pursuant to s 131 of the WCR Act, the application was lodged out of time.

[5] Primary Decision (n 1) [17](a)-(b) (citations omitted).

[6] Primary Decision (n 1) [22]-[24], [26] (citations omitted).

[8] Primary Decision (n 1) [31]-[32].

[9] Turay v Workers' Compensation Regulator [2023] ICQ 13 ('Turay').

[10] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 562(1)(a) ('WCR Act').

[11] Ibid s 562(1)(b).

[12] Ibid s 562(1)(c).

[13] [2021] ICQ 3.

[14] Ibid [95], citing Lo v Chief Commissioner of State Revenue [2013] NSWCA 180.

[16] Yuehai Wang, 'Submission of the Applicant', Submission in Wang v Juicy Love Pty Ltd as Trustee trading as Wicked Campers, C/2022/30, 2 February 2023, 1 ('Appellant's Submissions filed 2 February 2023').

[17] Appellant's Submissions filed 2 February 2023 (n 16) 2.

[18] Yuehai Wang, 'Reply to Respondent Submissions', Submission in Wang v Juicy Love Pty Ltd as Trustee trading as Wicked Campers, C/2022/30, 22 March 2023, [5].

[20] R v Katsidis; Ex parte Attorney-General (Qld) [2005] QCA 229.

[23] Appellant's Submissions filed 2 February 2023 (n 16) 3.

[26] Appellant's Submissions filed 2 February 2023 (n 16) 5.