Totino v Metro Trains Melbourne Pty Ltd

The Full Court of the Federal Court has dismissed an appeal by a former senior Metro Trains Melbourne manager against the dismissal of her general protections and workplace injury claims. Penelope Totino, a Central Group Manager responsible for depot managers and around 500 train drivers, was stood down in February 2022 after bullying complaints and later lodged a workers compensation claim for a psychological injury. After she had been absent from work for several months, Metro Trains sent a show cause letter in July 2022 proposing to terminate her employment for medical incapacity and operational need, and dismissed her later that month.

On appeal, the Full Court held that the show cause letter did not amount to a threat of adverse action under section 342 of the Fair Work Act 2009, because it did not carry an intimidatory purpose, and that Metro Trains had discharged the reverse onus under section 361 by establishing the real reasons for dismissal. The Court also confirmed that section 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), which restricts the use of information obtained under that Act, does not create a private right to damages. A further ground concerning the involvement of an in house legal adviser in the dismissal process did not alter the outcome.

The decision gives employers some practical guidance on three recurring issues in capacity dismissals, namely when an adviser's participation in a termination process puts that adviser's own motivations in issue, what separates a genuine show cause letter from a threat, and the limited remedies available for misuse of workers compensation information. It is relevant to employers managing long term medical incapacity and to practitioners advising on general protections claims arising from such processes.