The Full Federal Court dismissed the appeal in Totino v Metro Trains Melbourne Pty Ltd [2026] FCAFC 120, confirming three things for employers: an adviser who participates heavily in a termination process does not automatically trigger the reverse onus under s 361 of the Fair Work Act 2009 (Cth) (the Act); a show cause letter does not constitute threatened adverse action unless it carries an intimidatory purpose; and s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) does not create a private right of action for damages.
The decision provides practical guidance on structuring advisory roles, maintaining clear decision-maker evidence, and drafting show cause letters that invite genuine responses.
When does an adviser’s involvement make their state of mind relevant under s 361?
Ms Totino was employed by Metro Trains as a Central Group Manager, a senior role overseeing approximately 500 train drivers. In late February 2022, following complaints of bullying, she was stood down pending investigation. She subsequently lodged a workers compensation claim for a psychological injury and was absent from work for several months. During that period she made a series of written complaints to senior Metro Trains officers and referred her compensation claim to the Accident Compensation Conciliation Service.
In mid-June 2022, Kelvin Reidy, then Acting Director of Workplace Relations and a practising solicitor, conducted a review of Ms Totino’s employment and provided written advice to the General Manager of Operations, Gary Wegert, and the Head of Train Services, Phillipa Thomas.
On 11 July 2022, Mr Wegert issued a show cause letter proposing termination on the grounds of medical incapacity and the operational need to permanently fill her role. The decision to terminate was made by Mr Wegert and Robert Duvel, Executive Director of Safety and People, who had authority to approve all terminations within the business. Ms Totino responded to the show cause letter, but her employment was terminated on 18 July 2022.
On appeal, Ms Totino challenged Metro Trains’ reliance on the evidence of its decision-makers, arguing that Mr Reidy had been sufficiently involved in the process that his state of mind was relevant to the reasons for the adverse action.
The Full Court confirmed that the inquiry under s 361 is not confined to the formal decision-makers. A person who provides advice or information may make a significant contribution to an adverse action such that their reasons become relevant to the corporation’s reasons for acting.
However, the mere fact that a person was substantially involved in the process does not make their state of mind relevant. The question is the nature and significance of their contribution.
In this case, Mr Reidy had conducted the employment review, provided written advice and was involved in drafting correspondence. His written advice also appeared to contain a recommendation. Nevertheless, the Court accepted that Mr Wegert and Mr Duvel had independently formed the reasons for the relevant actions: Ms Totino’s medical incapacity and the operational need to permanently fill her role.
The Court considered that Mr Reidy’s advice principally concerned whether the proposed course of action was open to Metro Trains, rather than determining the reasons for which the decision-makers chose to take it. His involvement therefore did not amount to a significant contribution of the kind that would make his state of mind relevant under s 361.
The Court also rejected a Jones v Dunkel argument arising from Mr Reidy’s failure to give evidence. Having concluded that he had not made a significant contribution to the adverse action, the Court held that there was no need to call him.
The practical point is that an adviser can be heavily involved in an employment process without becoming a person whose state of mind must be established under s 361. What matters is whether the adviser significantly contributed to the adverse action, particularly the reasons for which it was taken.
Can a show cause letter constitute “threatened” adverse action?
Ms Totino also argued that the show cause letter itself constituted a threat of termination under s 342(2) of the Act.
The Full Court rejected the argument. It held that a “threat” requires an intimidatory purpose. The relevant question is whether the prospect of adverse action is being used to induce a person to do something they are not otherwise required to do.
That distinguished cases such as De Martin & Gasparini and Blue Sky Kids Land, where termination was used to compel employees to take particular action.
The show cause letter in Totino instead identified Metro Trains’ concerns, explained the proposed grounds for termination and invited Ms Totino to respond before a final decision was made. The fact that termination was proposed, or even likely, did not of itself make the letter a threat.
Whether a show cause letter crosses the line will always depend on its content. A letter that identifies the employer’s concerns, invites a genuine response and reserves the final decision is unlikely to constitute a threat. One that uses the prospect of dismissal to pressure an employee into accepting particular terms or taking particular action is a different matter entirely.
Does s 588 of the WIRC Act create a private right of action for damages?
Finally, Ms Totino alleged that Metro Trains had breached s 588 of the WIRC Act by using medical information obtained in connection with the workers compensation conciliation process for employment purposes. Section 588 prohibits the unauthorised use of information obtained under or pursuant to the relevant workers compensation legislation.
The Full Court held that s 588 does not confer a private right of action for damages. Two considerations were decisive. First, s 588 imposes a general prohibition on the use of such information by anyone, including potentially the worker whose information it is. It is not directed at the protection of a particular class of persons, which is a prerequisite for implying a private civil remedy. Second, the WIRC Act provides a specific criminal penalty and statutory enforcement mechanism for breaches of s 588, and a penal sanction of that kind prima facie excludes any implied civil liability.
The decision is significant where medical information obtained in the workers compensation context is subsequently relied upon in employment decisions. However, the Court’s finding is limited to the conclusion that s 588 does not confer a private right of action for damages.
Key takeaways
Totino provides the following key takeaways for employers:
- The focus under s 361 is on the significance of an adviser’s contribution to the adverse action, not simply the extent of their involvement in the process. An adviser who identifies the availability of a course of action and drafts correspondence on instructions does not necessarily become a person whose state of mind must be established to discharge the reverse onus.
- Decision-makers should be able to give clear and independent evidence of their own reasons for the adverse action. Where an adviser is involved, employers should ensure the evidence accurately reflects the advisory nature of that role and the basis on which the decision-makers formed their own views.
- A show cause letter will not constitute threatened adverse action merely because termination is proposed or likely. An intimidatory purpose is required. A letter that identifies the employer’s concerns, invites a genuine response and reserves the final decision is unlikely to cross that line.
- Section 588 of the WIRC Act does not create a private right of action for damages. Any remedy for misuse lies in criminal proceedings.
FAQs
Find quick answers to common questions about this topic.
What is the reverse onus under s 361 of the Fair Work Act?
Under s 361 of the Fair Work Act 2009 (Cth), where an employee alleges that adverse action was taken against them for a prohibited reason, it is presumed that the action was taken for that reason unless the employer proves otherwise. This shifts the burden of proof to the employer, which must establish the true reasons for the action. Where multiple people were involved in the decision, whose reasons are relevant depends on who significantly contributed to the adverse action.
Can a legal adviser’s involvement in a termination create reverse onus exposure?
Yes, but only if the adviser significantly contributed to the adverse action, particularly to the reasons for which it was taken. Totino confirms that an adviser who identifies the availability of a course of action and drafts correspondence on instructions does not automatically become a person whose state of mind must be established. Decision-makers who independently form the reasons for the action will generally discharge the reverse onus through their own evidence.
When does a show cause letter become threatened adverse action?
A show cause letter will only constitute threatened adverse action if it carries an intimidatory purpose – that is, if it uses the prospect of termination to pressure an employee into doing something they are not otherwise required to do. A letter that identifies the employer’s concerns, invites a genuine response and reserves the final decision will not ordinarily cross that line. Letters that use the prospect of dismissal to compel acceptance of particular terms or actions are a different matter.
Can an employee sue for damages if their medical information from a workers compensation process is misused?
Not under s 588 of the WIRC Act. The Full Federal Court in Totino confirmed that s 588 does not confer a private right of action for damages. The section imposes a general prohibition on misuse but is not directed at protecting a particular class of persons, and it provides a specific criminal penalty as the enforcement mechanism – both of which preclude an implied civil remedy. Any enforcement must occur through criminal proceedings.
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
