Federal Court of Australia

Totino v Metro Trains Melbourne Pty Ltd [2026] FCAFC 120

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

introduction

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): Totino v Metro Trains Melbourne Pty Ltd [2024] FedCFamC2G 1370 (J). The primary judge dismissed claims brought by the Appellant (Ms Totino) against the Respondent (Metro Trains) under the Fair Work Act 2009 (Cth) (FW Act) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).

Summary of proceedings below

2    Ms Totino claimed that Metro Trains took adverse action against her by:

(a)    discriminating between her and other employees, by refusing to provide details of allegations against her, where other employees would have been provided with those details if such allegations had been made against them;

(b)    threatening to take action to terminate her employment (by issuing a show cause letter); and

(c)    terminating her employment;

for the reason, or for reasons which included, Ms Totino exercising workplace right(s) (J [2](a), [3]-[4]).

3    The primary judge held (relevantly to the appeal) that the show cause letter was not a threat, and therefore was not an “adverse action” (J [72]-[74]). Her Honour held further that neither the show cause letter (even if it was an adverse action), nor the termination of Ms Totino’s employment, was taken for reasons that included Ms Totino’s exercise of her workplace rights (J [85], [109], respectively).

4    Ms Totino also claimed that Metro Trains breached the statutory duty imposed by s 588 of the WIRC Act by using a medical report in deciding to terminate her employment (J [2](d)). The primary judge held that s 588 did not create a tortious cause of action (J [126]), and held further that there was no breach of any duty imposed, because the medical report was not obtained “under or pursuant to” the WIRC Act (J [136]-[137]).

Appeal grounds

5    This appeal concerns the adverse actions constituted by the threatened termination and termination (see [2](b) and (c) above), and the alleged breach of the WIRC Act.

    Ground 1 contends that the primary judge erred in finding that Metro Trains met its reverse onus of proof on the termination adverse action, arising out of Metro Trains’ failure to call Mr Kelvin Reidy (who provided advice in relation to Ms Totino’s employment) or to produce his advice.

    Ground 2 contends that the primary judge erred in finding that the show cause letter was not a threat (and therefore not an adverse action).

    Ground 3 contends that the primary judge erred in finding that Metro Trains met its reverse onus of proof on the threatened termination adverse action, for the same reasons as Ground 1.

    Ground 4 contends that the primary judge erred in dismissing Ms Totino’s claim for a breach of s 588 of the WIRC Act, because (it is said) s 588 does confer a private right of action, and the relevant medical report was obtained under or pursuant to s 75 of the WIRC Act.

    Ground 5 contends that the primary judge erred in refusing to accept evidence of a change in Ms Totino’s circumstances after judgment was reserved.

6    For the following reasons, these arguments are rejected and the appeal is dismissed.

background

Parties and key persons

7    Metro Trains is the operator of train services on the metropolitan rail network in Melbourne (J [7]). Ms Totino began employment with Metro Trains in October 2019. She held the role of Central Group Manager, which was a senior leadership role. About eight Depot Train Driver Managers reported to her, and approximately 500 train drivers reported to those Depot Train Driver Managers (J [8]).

8    Three officers within Metro Trains were called as witnesses before the primary judge.

    Ms Phillipa Thomas is the Head of Train Services for Metro Trains. Ms Totino reported directly to Ms Thomas (J [11]).

    Mr Gary Wegert was the General Manager of Operations for Metro Trains from August 2019 until July 2023. Ms Thomas reported directly to Mr Wegert during the relevant period (J [12]).

    Mr Robert Duvel is the Executive Director, Safety and People for Metro Trains. His responsibilities include making decisions to terminate an employee’s employment where required, and approving all terminations of employment within Metro Trains’ business (J [13]).

9    In addition, Mr Reidy, then Acting Director of Workplace Relations, provided Mr Wegert and Ms Thomas with written advice about Ms Totino’s employment in mid-June 2022 (J [78]). The nature of this advice as legal advice is a matter of dispute between the parties. As noted, Mr Reidy was not called as a witness.

Events leading up to termination

10    The primary judge set out a chronology of events leading to the termination of Ms Totino’s employment at J [14]. The events that are relevant to this appeal are as follows.

Metro proposes standing down Ms Totino (late February 2022)

11    Between 24 and 27 February 2022, Ms Thomas received a number of complaints from personnel who reported to Ms Totino alleging bullying conduct by Ms Totino. On 28 February 2022, Ms Thomas phoned and sent a letter to Ms Totino stating that Metro Trains had received complaints about her (Ms Totino) and that she would be stood down from her employment effective immediately while Metro Trains investigated the matter.

Ms Totino’s First Complaint (1 March 2022)

12    On 1 March 2022, Ms Totino sent a letter by way of email to Ms Thomas, responding to the telephone call and letter from Ms Thomas (referred to as the First Complaint). In the letter, Ms Totino referred to an “immediate degradation of [her] health and well-being”, among other things.

Ms Totino makes a compensation claim (16 March 2022)

13    On 16 March 2022, Ms Totino submitted a Worker’s Injury Claim Form (referred to as the Compensation Claim), which attached a medical certificate stating that Ms Totino had been diagnosed with a “severe psychological injury” and stated her symptoms were “Severely distressed. Not functional. Unable to focus or concentrate.”

Ms Totino’s Second Complaint (31 March 2022)

14    On 31 March 2022, Ms Thomas sent an email to Ms Totino advising her that her personal leave entitlements would be exhausted on 5 April 2022, and advising Ms Totino of possible future steps. Later that day, Ms Totino sent an email to Mr Duvel responding to Ms Thomas’ email (referred to as the Second Complaint). In that email, Ms Totino requested reimbursement of her personal leave balance on the basis of the leave with pay offer, and to be provided with details of the allegations made against her.

Allianz rejects compensation claim (11 April 2022)

15    On 11 April 2022, the Compensation Claim was rejected by Allianz Australia Workers Compensation (Vic) Limited, pursuant to s 40(1) of the WIRC Act.

Third Complaint (12 April 2022)

16    On 12 April 2022, Ms Totino sent an email to Mr Wegert (referred to as the Third Complaint) requesting that she be re-credited her personal leave balance, and be provided with details of the allegations made against her.

Ms Totino refers compensation claim to ACCS (13 April 2022)

17    On 13 April 2022, Ms Totino filed a request with the Accident Compensation and Conciliation Service (ACCS), which sought to dispute the decision by Allianz to reject the Compensation Claim. This was referred to as the Conciliation Request.

Mr Wegert replies to Third Complaint (14 April 2022)

18    On 14 April 2022, Mr Wegert replied to the Third Complaint stating (among other things) that Metro Trains would not be re-crediting the personal leave paid since 7 March 2022, nor would it resume payments for Ms Totino’s stand down until she was fit for duty.

Fourth Complaint (24 May 2022)

19    On 24 May 2022, Ms Totino’s lawyer sent a letter by email to Mr Wegert (referred to as the Fourth Complaint) and made a number of legal demands, including re-crediting Ms Totino’s personal leave balance.

Ms Totino refers compensation claim to WorkSafe (4 July 2022)

20    On 14 June 2022, a conciliation took place with ACCS. The conciliation was unsuccessful. On 4 July 2022, Ms Totino referred the Compensation Claim to WorkSafe for internal review (referred to as the Review Application).

Show Cause Letter (11 July 2022)

21    On 11 July 2022, Mr Wegert sent a letter by way of email to Ms Totino (Show Cause Letter). The Show Cause Letter states as follows (emphasis added):

…we have formed the view on the available medical evidence, from your treating medical practitioner, that you will not return to work with [Metro Trains] due to medical incapacity. For this reason and due to our operational requirements that we fill your position on a permanent basis, we are proposing to terminate your employment.

Before we make a final decision about your employment, we invite you to provide a response to us which addresses our proposal to terminate your employment. If you would like to provide a response can you please provide it to me by COB 14 July 2022. … We will make a decision about your employment after 14 July and provide you with written confirmation of our final decision.

This Letter is the Threatened Termination adverse action alleged by Ms Totino.

Fifth Complaint (12 July 2022)

22    On 12 July 2022, Ms Totino sent an email (referred to as the Fifth Complaint) replying to the Threatened Termination. In this email, Ms Totino stated (among other things) that “medical evidence has supported that [she was] fit to engage in an investigative process into the allegations of misconduct against [her]”.

Termination of employment (18 July 2022)

23    On 18 July 2022, Mr Wegert sent Ms Totino a letter stating that Metro Trains had terminated Ms Totino’s employment (Termination Letter).

    The Termination Letter stated that Mr Wegert had decided to terminate Ms Totino’s employment “because of your incapacity to perform work for [Metro Trains] and the need for [Metro Trains] to fill your position on a permanent basis.”

    The Termination Letter also responded to points raised in Ms Totino’s response. First, Mr Wegert disputed Ms Totino’s claim that Dr Everitt had given her a medical clearance to participate in the investigation process. Mr Wegert stated that “[b]ased on Dr Everitt’s advice and acting in the best interests of your health we did not involve you in the investigation process.” Second, Mr Wegert stated that Metro Trains was aware of Ms Totino’s application for a review of her WorkCover claim, but that Metro Trains was “not obliged to suspend the review of your employment while you await the outcome of your application for a review”. Third, Mr Wegert stated that Metro Trains was not acting because of Ms Totino exercising a workplace right, and stated “[o]ur only reason for acting is the medical evidence we have about your capacity to return to work, and a business need to fill your position on a permanent basis.”

consideration

Grounds 1, 3:    Whether error in finding that Metro Trains had discharged its onus on termination, and on threatened termination

24    Appeal ground 1 contends that the primary judge erred in finding that Metro Trains had discharged its onus in relation to the reasons for the Termination adverse action. Ms Totino alleges a series of particular errors, which all arise out of the failure by Metro Trains to call Mr Reidy as a witness. As noted, Mr Reidy provided advice to Mr Wegert and Mr Duvel in relation to Ms Totino’s employment, including a written advice dated 22 June 2022.

25    Appeal ground 3 contends that the same errors mean that Metro Trains had not discharged its onus in relation to the reasons for the Threatened Termination adverse action either.

1.1    Applicable provisions of the FW Act

26    The applicable provisions of the FW Act are set out in J [15]-[21]. In outline:

    A person must not take adverse action against another person because (relevantly) the other person has a workplace right, has or has not exercised a workplace right, or proposes or proposes not to (or has at any time proposed or proposed not to) exercise a workplace right (FW Act s 340(1)(a)).

    By s 341(1), a person has a “workplace right” if the person:

(a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)     is able to make a complaint or inquiry:

(i)     …

(ii)     if the person is an employee – in relation to his or her employment.

    “Adverse action” is defined in s 342(1), and includes dismissing an employee (s 342(1), item 1(a)). An adverse action includes threatening to take an action covered by s 342(1) (see s 342(2)).

    By s 360, a person takes action for a particular reason if the reasons for the action include that reason. The issue is whether a prohibited reason was a “substantial or operative” reason for the action: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [57], [59] (French CJ and Crennan J), [104], [127] (Gummow and Hayne JJ); Qantas Airway Ltd v Transport Workers Union of Australia [2023] HCA 27; (2023) 278 CLR 571 at [6], [41] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [63] (Gordon and Edelman JJ).

    Further, if it is alleged that a person took action for a particular reason or with a particular intent, and taking that action for that reason would constitute a contravention of Pt 3-1, it is “presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise” (s 361). That is, the FW Act reverses the onus of proving the reasons for which an employer took adverse action.

27    In this case, it was clear that at least some of the actions relied on by Ms Totino were “workplace rights” within s 341(1)(a) (see J [76]). It was also clear that the Termination was an adverse action. Therefore, the only issue in relation to the termination of Ms Totino’s employment was whether a substantial or operative reason for that termination was that Ms Totino had exercised, or was proposing to exercise, a workplace right.

1.2    Determining the state of mind of a body corporate

28    By s 793(2) of the FW Act, if it is necessary for the purposes of that Act to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show that (relevantly) an officer, employee or agent of the body within the scope of his or her actual or apparent authority engaged in that conduct, and had that state of mind.

29    When action is taken by a body corporate, there may be more than one person whose state of mind is relevant. Further, the persons whose state of mind is relevant may extend beyond officers, employees or agents who formally have power to bind the body corporate. A person who does the act or thing constituting the adverse action may act on information or advice that is actuated by a prohibited reason, either in its provision or content. Depending on the circumstances, the adoption of such information or advice may mean that the corporation’s reasons for the adverse action include that prohibited reason: Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148 at [26] (the Court). The Court interrogates not merely the state of mind of the person(s) who engaged in the conduct, but also any person whose contribution to that conduct rose above a threshold level (whether that is described as “significant”, “substantial” or “essential”): Pilbrow v University of Melbourne [2024] FCA 1140; (2024) 334 IR 141 at [78] (Snaden J), summarising the effect of Wong.

30    In practice, it is necessary for an employer to identify the relevant decision-maker(s) for each adverse action, because only then can the Court be satisfied that a prohibited reason is not a substantial and operative reason for taking the adverse action: see Pilbrow at [47], [140]. At the same time, however, that does not mean that it is necessary for an employer to call evidence from every person involved in the decision-making processes. There is no need to conduct a wide-ranging inquiry into the conduct and states of mind of persons within a corporation if that conduct or state of mind could have no ultimate bearing on the actual reason(s) in fact for taking the adverse action: Laing O’Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323; (2024) 335 IR 197 at [296]-[297] (Shariff J); see also Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 at [236] (Lee J).

1.3    Primary judge: Mr Reidy’s role in the Termination and the Show Cause Letter

31    The particular errors specified in appeal ground 1(a) to (g) (discussed below) relate to the role of Mr Reidy in the termination of Ms Totino’s employment, including the earlier sending of the Show Cause Letter (considered below under appeal ground 3).

32    Metro Trains contended (and the primary judge accepted) that the two decision-makers on the termination of Ms Totino’s employment were Mr Wegert and Mr Duvel.

    Mr Wegert signed the Show Cause Letter and the Termination Letter. Further, from 31 March 2022, Mr Wegert took over the primary carriage of communicating with Ms Totino (J [77]).

    Mr Duvel was the Executive Director of Safety and People at Metro Trains, and his responsibilities included making decisions to terminate an employee’s employment when required, and to approve all terminations of employment within Metro Trains’ business (J [13]). Mr Duvel gave evidence that he formed the view it was appropriate to terminate Ms Totino’s employment (J [96]).

33    However, Mr Reidy provided advice to Mr Wegert and Mr Duvel. Mr Wegert’s evidence was that on about 12 or 13 July he spoke to Mr Reidy and Ms Thomas about Ms Totino’s 12 July 2022 response (J [93]). Mr Duvel’s evidence was that he discussed Ms Totino’s response of 12 July with Mr Reidy, and formed the view that it was appropriate to terminate Ms Totino’s employment (J [96]).

34    The primary judge discussed the role of Mr Reidy in detail when considering the Show Cause Letter, and that analysis was applied to the termination of Ms Totino’s employment (J [101]). Mr Reidy conducted a review of Ms Totino’s employment in mid-June 2022 and provided Mr Wegert and Ms Thomas with a written legal advice (J [78]). Ms Totino contended that Mr Reidy’s state of mind was therefore relevant, because Mr Reidy made a “significant contribution” to the decision to terminate her employment, similar to the person in Wong whose advice formed a critical part of the decision-making: see Wong at [82]-[83]. Mr Reidy did not give evidence before the primary judge (although Metro Trains did subpoena Mr Reidy, to guard against the possibility that Mr Wegert would not give evidence).

35    The primary judge reached the following conclusions about Mr Reidy’s role in relation to the Show Cause Letter.

(1)    Metro Trains claimed legal professional privilege over Mr Reidy’s advice but, “[u]ltimately, the Court was not required to rule on this”. The primary judge accepted Mr Wegert’s evidence that Mr Reidy gave advice as a lawyer. Mr Reidy’s legal qualifications (that is, his practising certificates for 2021-22 and 2022-23) were ultimately before the Court (J [78]).

(2)    The primary judge rejected Ms Totino’s submission that Mr Reidy’s evidence was required to discharge the reverse onus. Whatever Mr Reidy’s advice was in relation to Ms Totino, he was not the decision-maker. Mr Wegert was the decision-maker in relation to issuing the Show Cause Letter, and in mid-June 2022 Mr Duvel approved Metro Trains proceeding to a show cause process, after speaking with Mr Wegert and Mr Reidy (J [78]).

(3)    Mr Wegert stated that he sought Mr Reidy’s advice because Ms Totino had been absent for three months, and it was Metro Trains’ usual practice for managers to initiate a review after such a length of absence. Mr Wegert had an initial telephone conversation with Ms Thomas about Mr Reidy’s advice on 22 June 2022, and Mr Wegert had a meeting with Mr Reidy by Microsoft Teams in the week beginning 27 June 2022 (J [81]).

(4)    On 6 July 2022, Mr Reidy sent an email to a Ms Beluli in Human Resources stating that Ms Totino’s Review Application (lodged on 4 July 2022) “may change our intended actions re Penny”. On 7 July 2022, Mr Reidy prepared a letter, which was provided to the Head of Health & Wellbeing, Safety and People, and which formed the basis of the Show Cause Letter. The primary judge rejected Ms Totino’s argument that these events showed that Mr Reidy had a “central role” in the termination of her employment (J [83]). The primary judge held that the failure to call Mr Reidy was not significant, because his role was the provision of legal advice and the decision-makers were called (referring to Ryan v Primesafe [2025] FCA 8; (2015) 323 ALR 107 at [81] (Mortimer J)). That is, Mr Reidy provided advice in his capacity as a lawyer, and was not involved in the decision-making process (J [84]).

(5)    For that reason, the primary judge held that cases such as Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 did not assist Ms Totino. The primary judge also rejected Ms Totino’s submission that the Court should draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference from the absence of Mr Reidy (J [84]).

1.4    Evidence of Mr Reidy’s role and the nature of his advice

36    The evidence before the primary judge about Mr Reidy’s role, and the nature of his advice (particularly the advice provided in mid-June 2022), was as follows. As noted, Metro Trains’ three witnesses were Mr Wegert, Mr Duvel and Ms Thomas.

Mr Wegert’s evidence

37    Mr Wegert in his affidavit stated:

(a)    He spoke to Mr Reidy in April 2022 regarding Ms Totino’s correspondence. Mr Wegert stated that Mr Reidy was Acting Head of Workplace Relations at the time, and that “Mr Reidy was at the time a practising lawyer and gave legal advice as part of his role.”

(b)    Mr Wegert asked Mr Reidy to draft a response to Ms Totino’s email of 31 March 2022 for Mr Wegert’s review. Mr Wegert stated that it was common practice for him to “speak with the Workplace Relations team or the Metro legal team to seek appropriate advice”. Mr Wegert stated that he “would make a decision on the path forward, and then where necessary, ask these subject matter experts to draft correspondence for [his] review to give effect to my decision.”

(c)    As the General Manager, Mr Wegert would “review such draft correspondence, amend if necessary, make a decision to accept or reject any suggestions, and then progress with issuing any draft correspondence in final form. In this instance, while a subject matter expert may have drafted the correspondence for [Mr Wegert’s] review, it was drafted on [his] instructions and [he] would make the ultimate decision on the contents and the approach for how the matter proceeded.”

(d)    Mr Wegert spoke with Mr Reidy about Ms Totino on 12 April 2022, 11 May 2022 and around 24 May 2022.

(e)    Mr Reidy provided Mr Wegert and Ms Thomas with “written legal advice about Ms Totino” on 22 June 2022. Mr Wegert stated that he recalls discussing with Mr Reidy and Ms Thomas by Microsoft Teams in the week commencing 27 June 2022 that, because Ms Totino had been absent due to medical incapacity for more than three months, and given there was no sign of any future return to work, it was open to Metro Trains “to conduct a review of her continued employment with the business”. The cover email to this advice was also in evidence: see [45] below.

(f)    For Mr Wegert, there were two substantial factors in making the decision to commence the show cause process. First, Ms Totino’s role in running Central (in which she was responsible for over 400 staff) was critical when trying to run a train system that operates over 2,400 trains every day. Second, Metro Trains had no indication of how long Ms Totino would be absent from work. In the absence of further information about Ms Totino’s capacity to perform the role, Mr Wegert “was comfortable in my decision to commence the show-cause process”. Mr Wegert repeated this evidence in cross-examination (see J [81]).

(g)    On 7 July 2022, Mr Reidy emailed Mr Wegert a draft letter about Ms Totino. On 8 July 2022, Mr Wegert met with Mr Reidy, Ms Lyons (Head of Health and Wellbeing) and Ms Baxter (the then Chief Operating Officer) by Microsoft Teams to consider the draft letter, which Mr Wegert states “was in line with what was previously discussed with [him] and Ms Thomas”.

(h)    On 12 July 2022, Mr Reidy provided legal advice to Mr Wegert in relation to Ms Totino’s email of that date. Around 12 or 13 July 2022, Mr Wegert spoke to Mr Reidy and Ms Thomas by telephone about Ms Totino’s response. Mr Wegert confirmed with Mr Reidy that he (Mr Wegert) had decided to terminate Ms Totino’s employment, and he asked Mr Reidy to get endorsement of this decision from Mr Duvel.

(i)    On 15 July 2022, Mr Reidy emailed Mr Wegert, Mr Duvel and Ms Baxter a copy of a draft termination letter for review. Mr Wegert read and considered the draft letter, and called Mr Reidy and said that he (Mr Wegert) had accepted the draft letter.

38    In his oral evidence, Mr Wegert said that, “[u]sually with every HR issue in Metro, we would go to our IR partners for advice”. When asked why he decided to seek legal advice, he said “[i]t was how we manage every matter and when we were going for advice in HR and IR”. The following exchange then occurred:

You were going to Mr Reidy to provide human resources advice or were you seeking legal advice?---No, IR.

IR advice?---IR advice.

Okay?---He was head of workplace relations at the time.

Okay. So you’ve said there that you were provided with written legal advice, but that’s not what you were after. You weren’t after legal advice?---I was after advice from Mr Reidy in the position that he was in. (emphasis added)

39    The Appellant contends that this oral evidence shows that Mr Reidy’s written advice was not legal advice: see section 1.6 below.

Mr Duvel’s evidence

40    Mr Duvel in his affidavit stated:

(a)    In or around mid-June 2022, Mr Reidy initiated a review into Ms Totino’s employment with Metro Trains. Mr Reidy told Mr Duvel that he initiated the review because Ms Totino had been unfit for work for a period of more than three consecutive months and was no longer receiving personal leave for this absence. Mr Duvel also understood that the review was initiated following an update provided to Mr Reidy by Ms Lyons (Head of Health and Wellbeing), where Ms Lyons had recommended that Metro Trains complete a review of Ms Totino’s employment, in light of a medical report received from Allianz which stated that it would not be possible for Ms Totino ever to work in any capacity in Metro, or even within the industry in Victoria.

(b)    In or around mid-June 2022, Mr Duvel spoke with Mr Reidy and Mr Wegert and endorsed an approach to issue Ms Totino with a letter explaining that Metro Trains had formed the preliminary view that Ms Totino would not have capacity to return to work, and was therefore proposing to terminate her employment due to medical incapacity. In early July 2022, Mr Reidy worked with Mr Wegert and also Ms Lyons in drafting this letter. Mr Duvel was included in this correspondence and had oversight of the contents of the letter. (In oral evidence, Mr Duvel said this timing was an estimation of when he discussed what became the Show Cause Letter.)

(c)    Mr Duvel discussed the contents of Ms Totino’s response to the Show Cause Letter with Mr Reidy. Mr Reidy told Mr Duvel that Ms Thomas and Mr Wegert were of the view that termination of Ms Totino’s employment was necessary in the circumstances. Mr Duvel formed the view that it was appropriate for Metro Trains to terminate Ms Totino’s employment, and asked Mr Reidy to commence drafting a termination letter.

(d)    Mr Duvel formed the view it was appropriate to terminate Ms Totino’s employment with Metro Trains solely because of her medical incapacity. Mr Duvel had regard to the fact that Ms Totino was employed in a senior leadership role, and considered that Metro Trains needed an employee engaged on a permanent basis to fill this role.

(e)    On 15 July 2022, Mr Reidy provided Mr Duvel with a draft termination letter that he (Mr Reidy) proposed Mr Wegert would send to Ms Totino. Mr Duvel considered the process that Metro Trains had followed until then and, on review of the draft letter, Mr Duvel considered it was appropriate to send to Ms Totino for the reason of medical incapacity, and the need for an employee to fill Ms Totino’s position on a permanent basis.

41    In his oral evidence, Mr Duvel made the following points:

(a)    Mr Duvel said that a review took place of Ms Totino’s employment after three months because Metro Trains needed to fill the role. Mr Duvel said that he did not see a copy of any review document.

(b)    Mr Duvel said that he was told that Ms Thomas and Mr Wegert thought that termination of Ms Totino’s employment was necessary. However, that was not the reason why Mr Duvel thought that termination was appropriate: Mr Duvel said “I formed my own view based on the fact that Ms Totino had no capacity for work, and that we needed to fill the role”.

(c)    Mr Duvel was asked about Mr Reidy’s email of 6 July 2022. Mr Duvel stated that he did not have any discussions with Mr Reidy about the implications of Ms Totino’s Review Application. Mr Duvel said he was not aware of what the intended steps (referred to in Mr Reidy’s email) were.

Ms Thomas’ evidence

42    Ms Thomas in her affidavit stated “[a]fter Ms Totino had been absent due to medical incapacity for a period of over three months I am aware that Metro’s Workplace Relations team commenced a review into her continued employment with the business” (emphasis added). In her oral evidence, Ms Thomas stated that this review was advice, and the advice occurred on 22 June.

43    Ms Thomas also states in her affidavit that, on 22 June 2022, she spoke with Mr Wegert about Ms Totino’s continued employment. During that discussion, Ms Thomas said that she supported the termination of Ms Totino’s employment, based on the fact that Ms Totino was unable to indicate that she had capacity to return to work in her role in the near future. Ms Thomas formed the view that Metro Trains needed someone in Ms Totino’s role permanently.

Other evidence

44    The day after the hearing, the Respondent provided the Court with practising certificates for Mr Reidy for the years 2021-22 and 2022-23. Those certificates stated that Mr Reidy worked 5 days a week as a legal practitioner.

45    Metro Trains tendered an email from Mr Reidy to Mr Wegert and Ms Thomas dated 22 June 2022, which attached his written advice. This email states:

Please find attached my advice about [Ms] Totino’s employment.

My suggested [redacted] but I will leave it for you to consider.

46    The Court Book also contained an email from Mr Reidy dated 6 July 2022 to Ms Beluli, in response to an email from Ms Beluli stating that Ms Totino had applied for independent review of her compensation application with the Workers Compensation Independent Review Service. Mr Reidy’s email states:

Confidential and privileged

This may change our intended actions re Penny.

Kelvin

1.5    Did Mr Reidy make a “significant contribution” to the dismissal and Show Cause Letter (appeal ground 1(e)-(g))?

47    It is convenient to start with appeal ground 1(e), which contends that the primary judge erred by failing to apply Kodak (as applied in later cases such as Wong and Pilbrow). The general proposition underpinning appeal ground 1 is that the evidence before the primary judge showed that the nature and degree of Mr Reidy’s involvement in the sending of the Show Cause Letter, and the decision to dismiss Ms Totino, meant that Metro Trains could not discharge its onus without calling Mr Reidy to positively establish that he was not motivated by an impermissible purpose: see Wong at [81]. That is, Ms Totino contends that the evidence established that Mr Reidy made a “significant contribution” to the Show Cause Letter and the dismissal, or at least that the primary judge could not be satisfied that Mr Reidy had not made a significant contribution without hearing from him, or seeing the June 2022 advice.

Necessary to consider nature of involvement, not just extent

48    It is significant that Wong refers to the nature and degree of involvement by a person other than the nominated decision-maker. The facts of Kodak and Wong show that this principle arises when a person other than the nominated decision-maker has or is likely to have affected the final decision that is made.

    In Kodak, the evidence was that a Mr Lay made an “indispensable contribution” to the ranking of existing employees for redundancy. Mr Lay and a Mr Shannon produced a joint assessment, and the ultimate decision-maker (Mr Walshe) took the Lay/Shannon assessment and worked from there. The Full Court stated that, if Mr Lay were influenced by a prohibited reason in giving Mr Elliot a low mark, this would inevitably have affected the ranking process. Further, this prohibited reason would have been inadvertently adopted by Mr Walshe (the general manager of the relevant division of Kodak): Kodak at [37].

    In Wong, the decision to terminate Ms Wong’s employment was made by a Ms MacLeod. However, a Mr Arnott drafted a script for Ms MacLeod to use in a meeting with Ms Wong to advise her of the decision to remove her from her position; he prepared a “run sheet” setting out the steps in the process; and, importantly, it was Mr Arnott who drafted the email to Ms Wong that set out the reasons for her removal, and a series of dot points in relation to each reason. Ms MacLeod accepted at face value the facts asserted by Mr Arnott and other personnel, especially in relation to behavioural issues: Wong at [64]-[66], [68]. Ms MacLeod accepted that the contribution of Mr Arnott was essential: Wong at [71]. The Full Court observed that this was not a case where Ms MacLeod received information from Mr Arnott, and investigated the reasonableness, truth or accuracy of that information for herself. Rather, Mr Arnott was the instigator of the process that led to adverse action being taken on the basis of his word, without reference to Ms Wong: Wong at [79].

49    In principle, it is possible to determine that a person did not make a “significant contribution” to taking an action without hearing from that person. Evidence given by the decision-makers nominated by the employer (here, Mr Wegert and Mr Duvel) may sufficiently establish that they made their decisions independently. At the same time, the Court is not limited to evidence from the nominated decision-makers as to whether another person did or did not make a significant contribution: it is necessary to look at all the evidence: see Kodak at [34]-[35].

Nature of Mr Reidy’s involvement in Show Cause Letter and dismissal (appeal ground 1(e))

50    In this case, the evidence summarised in section 1.4 above shows that Mr Reidy was frequently involved in the steps that led to sending the Show Cause Letter, and dismissing Ms Totino from her employment. However, the nature of Mr Reidy’s involvement was quite different from the persons in Kodak and Wong. Here, the decision-makers (Mr Wegert and Mr Duvel) gave evidence about their reasons for their decisions. Their independent reasons were Ms Totino’s lack of medical capacity to return to work, and the operational need for Ms Totino’s position as a senior manager to be filled permanently. Mr Wegert and Mr Duvel were cross-examined, and the primary judge accepted their evidence that these were the only reasons for their actions.

51    The issue then is the role of Mr Reidy’s advice in Mr Wegert and Mr Duvel each forming the view that these two factors (Ms Totino’s medical incapacity, the operational needs of Metro Trains) would be their reasons (and their only reasons) for sending the Show Cause Letter, and ultimately dismissing Ms Totino. As to the first factor, Ms Totino’s lack of medical capacity followed from the medical certificates and reports.

52    As to the second factor (operational needs), the evidence of Mr Wegert and Mr Duvel, as accepted by the primary judge, established that they each decided for themselves that the operational needs of Metro Trains required that Ms Totino’s position be filled permanently, and did not rely on Mr Reidy’s advice to form that view.

(a)    Mr Duvel expressly said he formed his own view on the need to fill Ms Totino’s position permanently: see [41](b) above.

(b)    Mr Wegert stated in his affidavit that he discussed Mr Reidy’s advice with Mr Reidy and Ms Thomas in the week of 27 June 2022, and they discussed that, given Ms Totino had been absent from work for three months for medical reasons and there was no sign of her returning to work, “it was open” to Metro Trains to review Ms Totino’s employment (that is, send her a Show Cause Letter): see [37](e) above. This statement indicates that Mr Reidy’s advice (the so-called “IR advice”) went to whether it was open to Metro Trains to enter into a show cause process. Mr Wegert stated in his affidavit that Ms Totino’s role was critical to Metro Trains’ business, and this was one of two substantial factors “for me” in deciding to commence the show cause process: see [37](f) above. To similar effect, Mr Wegert stated in cross-examination that Metro Trains “needed to act on [the advice] based on the role – it’s a very important role in Metro” (see J [81]). More generally, Mr Wegert had been managing the situation with Ms Totino since 5 April 2022 (see J [14](l)). This is not a case like Wong, where the decision-maker relied on another person for their knowledge of the underlying dispute.

53    In other words, unlike the decision-makers in Kodak and Wong, Mr Wegert and Mr Duvel did not rely on advice to determine what actions to take. That is what the primary judge meant in stating that “[w]hatever Mr Reidy’s advice was in relation to Ms Totino, Mr Reidy was not the decision-maker” (J [78], emphasis added). To similar effect, the primary judge stated that neither Mr Reidy nor Ms Lyons were decision-makers, but were advisers (J [84]). It is true that the categories of “decision-maker” and “adviser” are not conclusive by themselves of whether a person who is not a decision-maker nonetheless made a “significant contribution” to taking an action. However, when read in context, the primary judge’s finding is that Mr Reidy was merely an adviser, and did not play a substantial role in the decisions (in the sense of affecting the decision that was made: see [48] above). The conclusion in J [78] expressly does not depend on whether Mr Reidy’s advice was legal advice. That reasoning is incorporated in J [84]. The significance of whether Mr Reidy’s advice was legal advice is considered in section 1.6 below.

Significance of Mr Reidy’s 6 July email (appeal ground 1(f))

54    Ms Totino then contends that Mr Reidy’s 6 July email shows plainly that his role was much more than that of an adviser (or at least the primary judge could not be satisfied that it was not without hearing from him). As noted, when Mr Reidy was informed that Ms Totino was seeking review of the refusal of her compensation claim, he stated “[t]his may change our intended actions” regarding Ms Totino. Ms Totino points out that this email was sent immediately before Mr Reidy wrote the first draft of the Show Cause Letter, and before Ms Totino was dismissed from her employment.

55    In context, the reference to “our actions” is properly interpreted as Metro Trains’ actions, rather than the actions of Mr Reidy personally and others. The evidence does not disclose what actions were intended before 6 July, and how they changed. However, the evidence does establish Mr Wegert’s and Mr Duvel’s reasons for taking action.

    In the week of 27 June 2022, Mr Wegert had decided to start the show cause process in respect of Ms Totino (after discussions with Mr Reidy and Ms Thomas), and his reasons for doing so were her lack of medical capacity, and the need to fill her position permanently: see [37](e) and (f) above. Those were the reasons given by Mr Wegert for sending the Show Cause Letter and for dismissing Ms Totino from her employment, and the primary judge accepted that these were his only reasons. These reasons were decided on before Mr Reidy’s 6 July email.

    Mr Duvel spoke with Mr Reidy and Mr Wegert and endorsed the show cause process, solely because of Ms Totino’s medical incapacity: see [40](b) above. The evidence is less clear about when Mr Duvel formed these views: his affidavit refers to mid-June 2022, but he clarified in oral evidence that he could only be sure that it was sometime before 11 July 2022. Mr Duvel supported the termination of Ms Totino’s employment because of her medical incapacity and the need to fill her role: see [40](c)-(d), [41](b) above. The primary judge accepted that these were Mr Duvel’s only reasons. Mr Duvel did not discuss the implications of Ms Totino’s Review Application with Mr Reidy, and he was not aware of what the intended steps were: see [41](c) above.

56    The relevant issue for the primary judge was Metro Trains’ reasons for issuing the Show Cause Letter, and dismissing Ms Totino from her employment. The evidence shows that Mr Wegert’s reasons for taking the actions he did take were decided on before Ms Totino made her Review Application. Mr Duvel’s reasons for endorsing those actions were the same as Mr Wegert’s reasons, and Mr Duvel did not discuss Ms Totino’s Review Application with Mr Reidy. In these circumstances, there was no error in the primary judge being satisfied that Mr Reidy’s 6 July email did not suggest that Mr Reidy had influenced the purposes for which Metro Trains (acting through Mr Wegert and Mr Duvel) had taken the impugned actions.

57    The cover email to Mr Reidy’s 22 June written advice raises similar points. It seems likely that the redacted part of that email contains a recommendation of some sort (as it begins “My suggested” before the redactions), but the email states that Mr Reidy “will leave it for you to consider”. Mr Duvel did not see the written advice (and therefore would not have seen this email), and the primary judge was satisfied that Mr Wegert determined for himself the reasons for his actions: see [52](b) above. The making of a recommendation by Mr Reidy was not inconsistent with him also providing advice on what courses were open to Mr Wegert.

No room for a Jones v Dunkel inference (appeal ground 1(g))

58    These conclusions mean that the Appellant’s argument based on Jones v Dunkel must also be rejected (see appeal ground 1(g)). Ms Totino contends that the primary judge erred in J [84] by not drawing a Jones v Dunkel inference from the failure to call Mr Reidy, particularly when Metro Trains had subpoenaed Mr Reidy and then made a forensic decision not to call him. However, once it is found that Mr Reidy did not make a “significant contribution” to sending the Show Cause Letter, or to dismissing Ms Totino from her employment, then there was no need to call Mr Reidy. As noted, the reverse onus in s 361 of the FW Act does not require that the Court inquire into the states of mind of persons within a corporation if their state of mind could have no ultimate bearing on the actual reason(s) in fact for taking the adverse action: Laing O’Rourke at [296]-[297].

1.6    Did Mr Reidy provide legal advice (appeal ground 1(a)-(d))?

59    The second main issue raised by appeal ground 1 is the nature of Mr Reidy’s written advice dated 22 June 2022. Ms Totino contends that the primary judge erred in concluding that this advice was legal advice, for the following reasons.

    Particular (a) contends that Metro Trains cannot discharge its onus under s 361 without the document being produced, because the affidavits of Mr Duvel and Ms Thomas both refer to Mr Reidy conducting a “review”, and do not refer to the document as legal advice. Therefore, it is said, this written review is central to understanding the motivation of Metro Trains.

    Particular (b) contends that the primary judge erred in J [78] by failing to rule on the claim of legal professional privilege over Mr Reidy’s document, because (in effect) that ruling was required in order to determine whether this review was indeed a legal advice.

    Particular (c) contends that there was insufficient evidence for the primary judge to conclude that Mr Reidy had provided his document in his capacity as a lawyer (cf J [78], [84]). It is said that a current practising certificate is not sufficient, because it was necessary to establish matters such as whether Mr Reidy had been consulted in his capacity as a lawyer, whether his advice arose from a lawyer/client relationship, and whether the dominant purpose was to provide legal advice.

Any error as to the nature of Mr Reidy’s advice would not be material

60    As a preliminary point, the conclusions reached above on particulars (e) and (f) are sufficient to dispose of appeal ground 1. The primary judge found on the evidence that the decision-makers Mr Wegert and Mr Duvel had taken their actions for certain reasons (Ms Totino’s medical incapacity, and the need to fill her position permanently), and that these were their only reasons. It could be inferred from Mr Wegert’s evidence in particular that the role of Mr Reidy’s advice was to inform the decision-makers on whether it was open to take the proposed actions for those reasons: see [52](b) above. In that way, Mr Reidy was merely an adviser, and did not play a significant role in the decision: see [53] above. The conclusion that Mr Reidy was an adviser, not a decision-maker, was assisted by the finding that Mr Reidy provided legal advice, but that conclusion did not depend on the advice being legal in nature. The primary judge held that Mr Reidy was not the decision-maker “[w]hatever [his] advice was in relation to Ms Totino” (J [78]). In other words, any error in finding that Mr Reidy’s advice was legal advice would not be material.

Procedural history: call for production, Metro Trains claims LPP

61    At the hearing in February 2024, Ms Totino’s counsel asked Ms Thomas in cross-examination about the contents of the review conducted by Mr Reidy, and later called for production of the review. Metro Trains’ counsel objected to the question on the grounds of legal professional privilege, and claimed legal professional privilege over the document. The primary judge identified the need to determine whether this advice was provided by Mr Reidy in a legal capacity. The parties agreed to this issue being explored with the next witness, Mr Wegert.

62    Mr Wegert was asked about the advice he had received from Mr Reidy, and stated among other things that he (Mr Wegert) was seeking “IR advice”: see [38] above. After Mr Wegert had finished giving evidence, Ms Totino’s counsel raised with the primary judge that Ms Totino had been told that Mr Reidy could attend her conciliation because he was not employed by Metro Trains as a lawyer, and referred to an email from Allianz which stated that Mr Reidy did not hold a current practising certificate at that time, and was not engaged as a legal practitioner in the matter. The primary judge stated that there had been evidence from Mr Wegert about Mr Reidy and his engagement, and that was the opportunity to test those issues.

63    Later in the hearing, at the end of Mr Duvel’s evidence, Metro Trains’ counsel told the primary judge that they had found Mr Reidy’s then current practising certificate. The primary judge stated that the issue was not Mr Reidy’s current status as a lawyer, but whether he had a practising certificate at the time of providing the June 2022 advice. Her Honour requested Metro Trains to make inquiries with Mr Reidy and report by the next day. As noted, Metro Trains then filed an affidavit the next day attaching Mr Reidy’s practising certificates for 2021-22 and 2022-23: see [44] above. That is, Metro Trains’ privilege claim over Mr Reidy’s advice was not determined at the hearing.

64    In her written closing submissions (filed in April 2024), Ms Totino observed that Mr Reidy’s advice had not been provided, and that Metro Trains’ privilege claim had not yet been ruled on. Ms Totino submitted that “the only way the issue might be progressed” is by reference to the statutory presumption in s 361 of the FW Act. The fact that a key document (it was said) was not in evidence meant that Metro Trains was poorly placed to assert that it had discharged the statutory presumption.

Was there sufficient evidence to conclude that the advice was provided in a legal capacity?

65    The critical issue for these purposes is whether there was sufficient evidence before the primary judge to conclude that Mr Reidy’s written advice was provided by him in a legal capacity (appeal ground 1(c)).

    In principle, it is possible to determine whether advice is legally privileged without seeing the advice itself (cf appeal ground 1(a)). Although Ms Thomas refers in her affidavit to Mr Reidy conducting a “review”, she said in cross-examination that Mr Reidy provided advice. Mr Duvel did not see the advice, so his description of it as a “review” is not significant. Mr Reidy’s covering email (tendered at the hearing) refers to the attached document as an “advice”: see [45] above.

    Appeal ground 1(b) misinterprets J [78]: the primary judge is stating only that it was not necessary to rule at the hearing on whether Mr Reidy’s advice was subject to legal professional privilege. Her Honour proceeds in J [78] to give reasons why the advice was privileged.

66    The parties are agreed that the principles for determining whether Mr Reidy’s written advice attracted legal professional privilege are set out in AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 CLR 30 at [44], where Young J stated (emphasis added, citations omitted):

(4)    Where communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications[.] … [I]n the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given [referring to Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at [27] (Black CJ and Emmett J)].

…

(10)    Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client … . Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice … However, [other cases] did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege … .

67    Here, the evidence established that Mr Reidy held a practising certificate at the relevant times. Mr Wegert’s affidavit evidence was that Mr Reidy provided him with “written legal advice” about Ms Totino: see [37](e) above. Taken together, these matters could support a finding that Mr Reidy had been consulted in a professional capacity, and the June 2022 advice arose from the relationship between lawyer and client: see AWB v Cole (No 5) at [44](10). The dominant purpose of seeking legal advice could then be inferred from those matters.

68    However, Mr Wegert’s affidavit evidence was qualified by his oral evidence that he sought “IR advice” from Mr Reidy (not legal advice or “HR advice”), and that he was after advice from Mr Reidy “in the position that he was in”: see [38] above. Mr Wegert’s affidavit states that Mr Reidy was Acting Head of Workplace Relations at the time, and that he was a practising lawyer who “gave legal advice as part of his role” (emphasis added): see [37](a) above. Mr Wegert’s oral evidence complicates the issue of whether Mr Reidy provided legal advice, in his capacity as a lawyer. Metro Trains submits that it can be inferred from the fact that a client consulted a lawyer that legal advice was sought, citing the statement from Kennedy v Wallace quoted in AWB v Cole (No 5) at [44](4). However, point (4) in AWB v Cole (No 5) is dealing with the position of advice sought from external or independent legal advisers, which was the factual situation in Kennedy v Wallace. Point (10) in AWB v Cole (No 5) shows that, in the case of in-house legal advisers such as Mr Reidy, it is necessary to consider the nature of the particular advice sought. The onus was of course on Metro Trains to establish that Mr Reidy’s advice was privileged: AWB v Cole (No 5) at [44](1).

69    The primary judge found that Mr Wegert’s evidence (meaning the whole of his evidence) “was that Mr Reidy gave advice as a lawyer” (J [78]). Her Honour does not expressly explain what Mr Wegert meant by saying he sought “IR advice” from Mr Reidy. IR advice could be legal advice on IR matters, but it is not invariably legal in nature. However, the primary judge had the advantage of seeing the whole of Mr Wegert’s oral evidence in relation to the relevant circumstances. In any event, any error in finding that Mr Reidy’s advice was legal advice was not material, because the conclusion that Mr Reidy was only an adviser did not depend on the nature of his advice: see [60] above.

No error in reference to Ryan v Primesafe (appeal ground 1(d))

70    The final point raised by appeal ground 1 is the argument that the primary judge erred in J [84] by applying statements in Ryan v Primesafe about whether an external lawyer was “involved” in a contravention of the FW Act (within s 550 of the FW Act) to the different issue of determining Metro Trains’ state of mind (appeal ground 1(d)).

71    This argument in large part turns on whether the primary judge was correct to find that Mr Reidy was providing legal advice. If the dominant purpose of a communication is to provide legal advice in advance of action being taken, the nature of that function is such that the person is less likely to be seeking to influence what decision should be taken (at least in a way that would make the person’s state of mind relevant under s 361 of the FW Act). That is so, whether the lawyer is an external lawyer or an in-house lawyer. In this case, the primary judge appears to have accepted that Mr Reidy’s advice principally concerned whether a proposed course was open (albeit that Mr Reidy’s written advice appears to have contained a recommendation as well: see [57] above). The discussion in Ryan v Primesafe of the admittedly different statutory question of whether an external lawyer was “involved” in a contravention does provide a useful analogy in explaining why Mr Reidy’s subjective state of mind was not relevant. And as noted, any error by the primary judge as to whether Mr Reidy’s advice was legal advice would not be material.

72    However, Ms Totino submits, correctly, that the bare fact that a person provides professional advice to a decision-maker does not preclude the possibility that they might be involved in a contravention of the FW Act by the decision-maker within s 550 of that Act, referring to EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; (2018) 360 ALR 261. Equally, the argument goes, the bare fact that Mr Reidy was providing advice to the decision-makers here does not preclude the possibility that, in doing so, Mr Reidy might have been motivated by Ms Totino’s exercise of her workplace rights, in which case (it is said) Mr Reidy’s state of mind would be relevant. However, EZY Accounting does not assist Ms Totino. That case was dealing with a very different type of contravention; namely, the underpayment of entitlements. An accountant was “involved in” those contraventions by the employer, because the accountant facilitated the underpayments, knowing them to be underpayments: EZY Accounting at [33]. Here, by contrast, the question was the purpose(s) for which Metro Trains sent the Show Cause Letter and dismissed Ms Totino from her employment. The primary judge found that the nominated decision-makers took those actions only for permissible purposes, and that they formed their views independently of any advice from Mr Reidy.

1.7    Conclusion on appeal grounds 1 and 3

73    For these reasons, appeal ground 1 is rejected. The same analysis applies to appeal ground 3, which contends that the same errors identified in appeal ground 1(a) to (g) mean that Metro Trains did not discharge the reverse onus in establishing the reasons for the Threatened Termination adverse action either. The question of whether the Threatened Termination, in the Show Cause Letter, is an “adverse action” is considered next.

Ground 2:    Whether Show Cause Letter was an “adverse action”

74    Appeal ground 2 contends that the primary judge erred in finding in J [72] that the Show Cause Letter was not a “threat” of termination, and therefore was not an adverse action.

2.1    Primary judge: Show Cause Letter is not a “threat”

75    The issue is whether the Show Cause Letter, by stating “we are proposing to terminate your employment”, constituted a threat to dismiss Ms Totino. A threat to dismiss an employee is an adverse action, under s 342(1) item 1(a) and (2) of the FW Act (J [62]-[63]).

76    The primary judge held (relevantly) that the essence of a “threat” is that it is made for the purpose of intimidating a person, and that it was necessary to distinguish between a threat and the provision of information (J [66]-[68], quoting Fair Work Ombudsman v Australian Workers Union and Davis [2017] FCA 528; (2017) 271 IR 139 at [54]-[55] (Bromberg J)).

77    The primary judge held that this case was different from Messenger v Commonwealth of Australia [2022] FCA 677 (relied on by Metro Trains), because the Show Cause Letter did more than “allude to the possibility of termination” (J [72]). However, the primary judge held that the Show Cause Letter did not involve an expression of an intimidatory purpose. Rather, on a plain reading, the purpose of the Show Cause Letter was:

to identify that the medical advice is that Ms Totino has no capacity for work, will not be fit ever to work for Metro Trains and for that reason and the need to fill her role, her employment is proposed to be terminated; a proposal to which Ms Totino is invited to make a response, following which a decision will be made by Metro Trains as to her employment.

Accordingly, her Honour held, the Show Cause Letter was the provision of information and not a threat (J [72]).

2.2    Proper construction of Show Cause Letter

78    Ms Totino contends that the Show Cause Letter proposes that Metro Trains will dismiss Ms Totino from her employment unless reason to the contrary is shown, and that this amounts to “threatening” dismissal. It is said that the intimidatory purpose is that dismissal will occur if Ms Totino does not dissuade Metro Trains from doing so.

An intimidatory purpose seeks to induce action

79    The primary judge correctly found that “threatening” to take action within s 342(2) of the FW Act required the expression of an intimidatory purpose. This requirement from Davis was endorsed by the Full Court in Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; (2021) 290 FCR 239 at [149]-[150], as part of a detailed discussion of what amounts to a threat to take action. There was no suggestion that this discussion was plainly wrong.

80    An intimidatory purpose does not follow simply from there being a strong likelihood that dismissal will occur: intimidation occurs when the possibility of dismissal is used to induce a person to do something that the person is not already required to do.

    For example, in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046, two managers stated that 110 workers would be dismissed unless they approved variations to the enterprise agreement that would make the company compliant with the Code for the Tendering and Performance of Building Work 2016 (Cth) by a certain date. Wigney J held that the purpose of these statements was to intimidate, and not to consult: De Martin & Gasparini (No 2) at [264].

    Similarly, in Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (In Liq) (No 3) [2024] FCA 785, the employer issued an ultimatum to an employee: to enter into one or other of the independent contractor agreements or resign and, if not, she would be dismissed. Katzmann J held that the employee was not given any real option, and this amounted to a threat within s 342(2): Blue Sky (No 3) at [664].

81    Here, the Show Cause Letter (set out in [21] above) stated that, due to Ms Totino’s medical incapacity and Metro Trains’ operational requirements, Metro Trains “was proposing to terminate [her] employment”. The Letter invited Ms Totino to provide a response that addressed the proposal to terminate her employment by a certain date, and stated that a decision would be made about her employment after that date. The Show Cause Letter therefore gave Ms Totino an opportunity to explain why her employment should not be terminated for the reasons identified by Metro Trains (which she took), and stated that a final decision would be made after the date given for Ms Totino’s response. Not every notification of a prospective harm, either with or without conditions, amounts to a “threat”: Davis at [55]. The primary judge was, with respect, correct to find that the Show Cause Letter did not contain an intimidatory purpose, and therefore was not a “threat”.

Comparison with Messenger

82    Although the primary judge may well be correct that the Show Cause Letter here did more than allude to the possibility of termination (cf J [72]), there is very little difference in substance between that Letter and the show cause letters at issue in Messenger. In Messenger, a Senator sent show cause letters to each of Mr and Mrs Messenger. Those letters (which were materially the same) set out three main concerns, and stated that the specified conduct “evidences a breakdown in our working relationship to such an extent [or ‘to the extent’] that I believe I can no longer have trust or confidence in you”. The letters then stated that, in the present circumstances and given the seriousness of the actions set out, the Senator was “of the view that I may have no real option other than to terminate your employment”. The letters stated that this course would not be taken lightly, and invited the recipient to put forward their views on these matters by a specified date. The letters stated that a final decision would be made on their continued employment, after considering any response: Messenger at [85]-[86].

83    Snaden J held in Messenger at [164] that these show cause letters were not a threat to dismiss:

    The letters did not, in terms, threaten the Messengers with dismissal. The letters did make known that circumstances had accumulated to the point that dismissal might eventuate, or perhaps even have been inevitable.

    The letters did perhaps threaten that the possibility of their dismissal was one that the Senator would consider in a way or ways that might take account of anything they wished to put beforehand.

    But there was no threat to dismiss. A communication that alludes only to the possibility, conditional or otherwise, that something might happen is not a communication by which that possibility is threatened (citing Davis at [55]).

84    As in Messenger, the Show Cause Letter here made known that circumstances had accumulated to the point that dismissal might eventuate or even be inevitable. Ms Totino was given an opportunity to make a response, and the evidence shows that Mr Wegert and Mr Duvel considered her response and took advice on it before making the final decision to terminate her employment.

2.3    Conclusion on appeal ground 2

85    For these reasons, appeal ground 2 must be rejected. The Show Cause Letter did not contain any intimidatory purpose, and therefore was not a “threat” within s 342(2) of the FW Act.

Ground 4:    Whether error in dismissing claim under WIRC Act s 585

86    Appeal ground 4 contends that the primary judge erred in dismissing Ms Totino’s claim under s 585 of the WIRC Act. In particular, Ms Totino contends:

(a)    s 585 of the WIRC Act gives rise to an actionable right to damages for contravention of that section (cf J [126]); and

(b)    on the evidence before the primary judge, the relevant medical report was produced “under or pursuant to” s 75 of the WIRC Act (cf J [136]).

4.1    Background to WIRC Act claim

87    The Show Cause Letter refers to receiving an excerpt from a medical report prepared in April 2022 from Ms Totino’s treating general practitioner, Dr Everitt (the Medical Report). Ms Totino’s evidence is that the Medical Report was provided to the ACCS as part of Ms Totino’s workers compensation claim. Ms Totino signed an authority to release medical information form, which was headed “Request for medical report form – WIRCA section 75” (J [133]-[134]).

88    The form stated (relevantly):

Completion of this form provides your doctor with permission to provide a medical report to [ACCS] and [Allianz].

Under the heading “For Treating Health Practitioner Use”, the form stated:

In order to assist Penny Totino with their Conciliation, I request you provide a medical report as soon as possible addressing the relevant and applicable issues in this dispute from the options listed below.

The form then listed six questions, which included Ms Totino’s current capacity for pre-injury employment and any suitable duties, including any work restrictions and/or modifications which might be required.

WIRC Act Pt 6 Div 2: ACCS conciliations

89    The ACCS is a body corporate established by s 519 of the WIRC Act. Its functions include providing independent conciliation services for the purposes of the WIRC Act and the Accident Compensation Act 1985 (Vic) (WIRC Act s 522(a)).

90    The ACCS conducts conciliations under Pt 6, Div 2 of the WIRC Act. The key provisions of that Division for present purposes are as follows:

    By s 286, a party to a dispute who participates in a conciliation must provide all documents in the party’s possession, custody or power and disclose all information to ACCS that relate to the dispute, and are reasonably available to the party, unless the party claims privilege or immunity from that production or disclosure.

    By s 288, a provider of a medical service who has examined a worker may, with the consent of the worker and at the request of ACCS, meet with ACCS and answer questions, and supply relevant documents to ACCS.

    By s 289(1), the Victorian WorkCover Authority or a self-insurer must pay the reasonable costs of a report provided by a medical practitioner who has examined a worker if the report has been requested by ACCS, and the worker has consented to a report being provided.

    By s 291(1), ACCS may request a party who participates in a conciliation to produce a document(s), or provide information, that ACCS considers may be relevant to the resolution of the dispute. ACCS has discretion to make documents or information provided under s 291(1) available to another party (s 291(2)).

    Section 294 sets out the powers of ACCS in connection with a dispute, such as to make such recommendations to the parties to the dispute as ACCS considers to be appropriate (s 294(1)(a)), and to make directions under s 297 about payment of compensation (s 294(1)(c)).

WIRC Act s 588: unauthorised use of information

91    Section 588 of the WIRC Act prohibits the unauthorised use of information as follows:

588 Unauthorised use of information

A person must not use information obtained under or pursuant to this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958 except as authorised by or in respect of a matter or for a purpose arising under this Act, the Accident Compensation Act 1985 or the Workers Compensation Act 1958.

Penalty:    60 penalty units.

4.2    Primary judge: no tortious right of action; medical report not obtained “under or pursuant to” WIRC Act

92    Ms Totino submitted that Metro Trains’ use of the Medical Report was not a decision in the management of the Compensation Claim, and therefore that Metro Trains breached the statutory duty in s 588 of the WIRC Act by using the Medical Report to terminate her employment (J [110]). She sought damages for that breach of the duty in s 588. Metro Trains submitted in response (relevantly) that s 588 did not create a tortious cause of action, and that there was no breach of s 588, because the Medical Report was not obtained “under or pursuant to” the WIRC Act (J [112]). The primary judge accepted both of Metro Trains’ arguments.

93    First, the primary judge held that s 588 of the WIRC Act did not create a tortious cause of action and a private right to sue (J [117]). Section 588 does not provide that damages are available for breach of that section and, to the contrary, expressly provides a mechanism for the enforcement of this duty in the form of a criminal penalty. Although an express method of enforcement by penal sanction did not preclude a private right to sue from arising, the existence of enforcement procedures was of particular significance (J [118]-[120]). Further, s 608 of the WIRC Act sets out a regulatory procedure for the enforcement of the offence in s 588 and other offences in Pt 13, Div 8 (J [125]). The primary judge held that the only remedy that the legislature intended to provide for a breach of s 588 was the imposition of a criminal sanction (J [126]). Her Honour held that the decision of Judge Hampel in Doe v Australian Broadcasting Corporation [2007] VCC 281 was of no assistance to Ms Totino, and observed that this decision had been doubted by Fullerton J in Jane Doe v Fairfax Media Publications Pty Limited [2018] NSWSC 1996 at [137] (J [127]-[131]).

94    Second, the primary judge held that the Medical Report was not obtained “under or pursuant to” the WIRC Act. Her Honour held that the WIRC Act did not contain a specific power for ACCS to request a medical report for the purposes of conducting a conciliation (J [135]). Nothing in the language of s 75 of the WIRC Act supported an argument that the Medical Report was produced under or pursuant to that section (J [136]).

4.3    WIRC Act s 588 does not confer a private right of action

95    To succeed on this ground, Ms Totino must succeed on both of the issues mentioned above. It is convenient to focus on the first issue, whether the WIRC Act confers a private right of action.

96    In Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424, Brennan CJ, Dawson and Toohey JJ stated that a cause of action for damages for breach of statutory duty arises if “a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection”. This is a question of statutory construction, but an examination of the statute “will rarely yield a necessary implication positively giving a civil remedy”: Byrne at 424, quoting O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478 (Dixon J).

Section 588 is not enacted for the benefit or protection of a particular class

97    In this case, it cannot be said that s 588 of the WIRC Act imposes an obligation for the protection or benefit of a particular class of persons. Section 588 imposes a prohibition in general terms on the use of this information by anyone, including the person whose medical information has been provided under the WIRC Act. We note that there have been situations where the person whose medical information it is wishes to rely on that information in proceedings under the FW Act, and questions have been raised about whether that use is prohibited by s 588 of the WIRC Act: see Sidhu v Aldi Stores (A Limited Partnership) [2022] FedCFamC2G 239 at [28]-[29] (Judge McNab). That result shows that s 588 is not enacted for the benefit or protection of the person whose medical information has been provided, because a person may waive a statutory provision that is enacted entirely for their benefit: see Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171 at 178 (Gibbs CJ), 208 (Dawson J). We reject Ms Totino’s submission that s 588 is enacted for the protection or benefit of the persons whose medical information is provided under the WIRC Act.

Section 588 is enforced through a criminal penalty, not a private action for damages

98    Another factor tending against implying a private duty is that the WIRC Act provides a method for enforcing the prohibition in s 588; namely, by imposing a penalty for breach of that section, and then providing a specific procedure for enforcement of that penalty. Section 608 sets out the procedure for filing charges for offences against the WIRC Act, including the bodies or persons who may bring a prosecution (s 608(1)-(4)), and requires that guidelines be made under s 612 for or with respect to prosecution of offences under the WIRC Act (s 608(6)).

99    It is true, as Ms Totino submits, that the existence of a criminal penalty for breach of a duty does not conclusively preclude the possibility of a private remedy by action for damages also being implied from the statute: see Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405-406 (Kitto J). At the same time, a penal sanction prima facie excludes the implication of additional civil liability: Gardiner v State of Victoria [1999] VSCA 100; [1999] 2 VR 461 at [25] (Phillips JA, with Winneke P agreeing); Seiffert v Prisoners Review Board [2023] WASCA 15 at [274] (the Court).

100    These two factors indicate that s 588 of the WIRC Act does not confer a private right of action for breach of that provision.

Comparison with DOQ17

101    That conclusion is supported by DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488, which held that a breach of s 121 of the Family Law Act 1975 (Cth) did not give rise to a private action for damages. Section 121 prohibits the publication of any part of family law proceedings that identifies a party to the proceedings. Like s 588 of the WIRC Act, s 121 of the Family Law Act could in a general sense be described as protecting the privacy of persons. Two aspects of Perry J’s reasons for finding that s 121 did not, by implication, confer a private right of action for breach of that section are relevant here.

    First, s 121 of the Family Law Act defined with specificity the mode of enforcement, namely, criminal proceedings brought by the Commonwealth Director of Public Prosecutions or with its consent. This factor strongly suggested that it was not intended that the prohibition in s 121 could be enforced in any other way: DOQ17 at [129]. The offence created by s 121 was an indictable offence (s 121(5)); however, that difference does not detract from the general point that the imposition of a criminal sanction for breach of a section tends against implying a private cause of action for that breach.

    Second, s 121 of the Family Law Act imposed a prohibition which applied at large. It was not expressed in terms of a duty imposed on members of a particular class of persons, such as an employer or occupier of a building: DOQ17 at [130]. The same is true of s 588 of the WIRC Act.

102    Perry J also gave other reasons that are not relevant to s 588 of the WIRC Act. Even so, the reasoning of her Honour in DOQ17 set out above supports the conclusion that a breach of s 588 does not give rise to any private right of action for damages.

4.4    Conclusion on appeal ground 4

103    For these reasons, appeal ground 4 is rejected. Given the conclusion that s 588 does not create a private right of action, it is not necessary to consider whether the Medical Report was obtained “under or pursuant to” the WIRC Act. We observe, however, that the primary judge appears not to have been taken to the relevant provisions in Pt 6 Div 2; in particular, ss 289(1) and 291 of the WIRC Act.

Ground 5:    Whether error in not permitting tender of further evidence post-hearing

104    Appeal ground 5 contends that the primary judge erred when, on 10 July 2024, her Honour refused to accept evidence of a material change in circumstances that had occurred while judgment was reserved.

5.1    Appellant seeks to tender further evidence post-hearing

105    The hearing before the primary judge took place on 12 and 13 February 2024. Final submissions were provided on 9 April 2024. Ms Totino provided particulars of her loss and damage dated 9 February 2024. Those particulars set out weekly compensation payments received from Allianz, and expected earnings if Ms Totino had maintained her employment. She claimed the difference between these two amounts, and lost superannuation.

106    On 10 May 2024, Allianz made a decision to cease Ms Totino’s compensation payments, with effect from 22 August 2022. Allianz found that Ms Totino had been undertaking employment in her own business since ceasing work with Metro Trains in February 2022.

107    Ms Totino affirmed an affidavit dated 25 June 2024, which attached the Allianz decision, and set out Ms Totino’s response (contending that she had not returned to work and was appealing the Allianz decision). On 1 July 2024, Ms Totino’s lawyers emailed the FCFCOA registry and the associate of the primary judge (copying in the Respondent’s lawyers), stating that there had been a change in circumstances that was addressed in Ms Totino’s June 2024 affidavit (attached to the email), and requesting that the affidavit be filed for her Honour’s consideration. The email stated that the Respondent had consented to the filing of the affidavit.

108    Ms Totino’s written submissions on appeal state that, on 10 July 2024, the associate to the primary judge sent an email stating:

The parties’ respective cases have closed and judgment is currently reserved. Her Honour will not be considering new evidence in the circumstances.

5.2    Proposed further evidence could not possibly have affected the result

109    Ms Totino accepts that the proposed further evidence went only to quantum, and therefore could not have affected the result reached by the primary judge, given that her Honour found that Metro Trains had not breached the FW Act or the WIRC Act. Ms Totino’s counsel clarified at the hearing that appeal ground 5 was put on the basis that this further evidence should be received if another ground of appeal were successful and the matter was remitted back to the FCFCOA. However, appeal grounds 1 to 4 have been rejected, so appeal ground 5 falls away.

conclusion

110    For these reasons, the appeal is dismissed.

Associate:

Dated:    8 September 2026