Full Court of the Federal Court of Australia · [2026] FCAFC 120
The appeal failed. The Court also held that s 588 of the Victorian Act did not create a private damages claim.
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Ms Totino was Metro's Central Group Manager, with about eight Depot Train Driver Managers and around 500 train drivers under that reporting line.
After complaints alleging bullying in late February 2022, Metro stood her down while it investigated. She then raised health concerns and later made a workers compensation claim for psychological injury.
Key points
The appeal did not revisit every allegation from the first instance case. The Full Court dealt with the show cause letter, the termination, the claim under s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), and a separate procedural ground about post-hearing evidence.
The post-hearing evidence point only mattered if a liability ground succeeded. Once the liability grounds failed, that point could not change the result.
Key points
The key Fair Work Act issue was causation. Metro had to prove the show cause letter and dismissal were not taken because Ms Totino exercised workplace rights.
Mr Wegert sent the show cause letter. Mr Duvel approved proceeding with that process and later approved the termination. The Court accepted the evidence about the medical incapacity and operational reasons for those steps.
The 11 July 2022 letter said Metro was proposing to terminate Ms Totino's employment because of medical incapacity and its operational need to fill her role. It also invited her response before any final decision.
The Court said a 'threat' under s 342(2) needs an intimidatory purpose. It found that purpose was missing here.
Key points
Ms Totino said Metro unlawfully used a medical report that sat within the workers compensation system. She sought damages for breach of s 588 of the Victorian Act.
The Full Court rejected that claim because s 588 does not create a private right of action in damages. That was enough to end the point.
The result depended on the evidence and findings about these two challenged steps. It does not mean every medical incapacity dismissal, or every use of compensation-related medical material, will be lawful.
The Court did not decide whether the medical report was obtained 'under or pursuant to' the Victorian Act. The absence of a private damages action under s 588 was enough to dispose of that claim.
What the court focused on
The reverse onus in s 361 did not require Metro to call every person who had touched the matter. The question was whether Mr Reidy's involvement meant his own state of mind formed part of Metro's reasons. The Full Court accepted the primary judge's finding that the relevant decision-makers were Mr Wegert and Mr Duvel, and that they acted only because of medical incapacity and operational need. On that view, Mr Reidy was an adviser rather than someone whose unproved state of mind prevented Metro from discharging the onus.
No. The Court held the 11 July 2022 letter was not a 'threat' within s 342(2) of the Fair Work Act. A threat needs an intimidatory purpose. This letter said Metro was proposing termination, explained why, invited Ms Totino to respond by a set date, and said a final decision would be made after that response. The Court treated it as communication of a proposed step, not pressure designed to force her to do something she was not already required to do.
No. The Court did not approve dismissal because an employee makes a compensation claim or raises complaints. It proceeded on the basis that at least some of Ms Totino's conduct involved workplace rights. The case turned on why Metro acted. The accepted evidence was that Metro acted because of medical incapacity and the business need to fill a critical senior role permanently, not because Ms Totino complained, sought leave adjustments, or pursued compensation review processes.
No. The Full Court held that s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) does not create a private right of action in damages. That was enough to defeat the claim. Because of that, the Court said it did not need to decide whether the medical report had in fact been obtained 'under or pursuant to' the Act. It did note, however, that relevant ACCS provisions in Pt 6 Div 2, especially ss 289(1) and 291, appeared not to have been taken to the primary judge.
It could not affect the appeal outcome. The proposed further affidavit dealt with Allianz later deciding to stop compensation payments with effect from 22 August 2022. Ms Totino accepted that material went only to quantum, not liability. So it would only matter if one of the liability grounds succeeded and the case had to go back. Once the Full Court rejected the liability grounds, that complaint fell away.
The decision is primarily about proof. The Court examined who was responsible for the challenged steps, the reasons accepted at trial, and whether the show cause letter had an intimidatory purpose. It is not authority that a medical incapacity dismissal is automatically lawful. It also does not decide when compensation-related medical information may be used, because the s 588 claim failed at the earlier question of whether that provision creates a private damages action.
Full Court dismisses medical-capacity termination appeal
The Full Court dismissed an appeal concerning a show cause letter, medical-capacity termination, the Fair Work reverse onus and a Victorian medical-information claim.