Background
Penelope Totino held a senior operational role at Metro Trains Melbourne. After complaints of bullying were made against her in February 2022, she was stood down pending an investigation. She subsequently reported a severe psychological injury, made a workers’ compensation claim, and raised several complaints and requests concerning her leave and the allegations against her.
After Ms Totino had been medically unfit for work for more than three months, Metro Trains issued a show cause letter stating that it proposed to terminate her employment because the available medical evidence indicated that she would not return to work and because the company needed to fill her position permanently. Metro Trains terminated her employment after considering her response. The Federal Circuit and Family Court dismissed her claims that the show cause letter and dismissal contravened the general-protections provisions of the Fair Work Act 2009 (Cth), and that Metro Trains’ use of a medical report supported a damages claim under s 588 of Victoria’s Workplace Injury Rehabilitation and Compensation Act 2013.
The Court’s Holding
The Full Court dismissed Ms Totino’s appeal. It upheld the finding that Metro Trains discharged the reverse onus under s 361 of the Fair Work Act. The accepted evidence established that the relevant decision-makers acted because of Ms Totino’s medical incapacity and Metro Trains’ operational need to fill her senior position permanently, not because she had exercised workplace rights. Although workplace-relations officer Kelvin Reidy advised the decision-makers and drafted correspondence, he did not make a significant contribution of the kind that required Metro Trains to call him as a witness or produce his advice to establish its reasons.
The Court also held that the show cause letter was not threatened adverse action under s 342(2). A threat requires an intimidatory purpose, and the letter instead notified Ms Totino of a proposed course, explained the reasons, invited her response, and reserved the final decision until that response had been considered.
Section 588 of the Victorian workers’ compensation statute did not create a private right of action for damages. The provision imposed a generally applicable prohibition backed by a criminal penalty and statutory enforcement process, rather than a civil duty enacted for the benefit of a particular class. The Court therefore did not need to decide whether the medical report had been obtained under or pursuant to the statute. Ms Totino’s proposed post-hearing evidence concerned only damages and could not affect the result because no liability was established.
Key Takeaways
- An employer may discharge the Fair Work Act’s reverse onus through credible evidence from the actual decision-makers establishing their independent, lawful reasons for adverse action.
- A show cause letter communicating a proposed dismissal is not necessarily a “threat”; threatened adverse action requires an intimidatory purpose rather than merely notice of possible or likely dismissal.
- Section 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) does not imply a private damages remedy for unauthorized use of information.
Why It Matters
The decision clarifies that courts assessing a corporation’s reasons for adverse action must examine the nature and significance of each participant’s contribution, not assume that every adviser’s state of mind is relevant. Advice, drafting, and process support do not by themselves make an adviser a material decision-maker where the evidence establishes that the responsible officers independently chose the action and its reasons.
It also gives employers guidance on show cause procedures: clearly presenting a preliminary view, identifying its basis, inviting a genuine response, and postponing the final decision can distinguish procedural notification from an intimidatory threat. Separately, the ruling limits civil claims based solely on the information-use prohibition in s 588, leaving enforcement to the statutory penalty regime.