Workplace Investigations And Decision Makers: What Employers Can Learn From Totino v Metro Trains

The Full Court of the Federal Court inTotino v Metro Trains Melbourne Pty Ltd [2026] FCAFC 120, has provided practical guidance for employers managing medical incapacity terminations and defending general protections claims. There are also helpful lessons for HR/workplace relations advisors about accessorial liability and for EPL insurers about early triage of general protections matters.

The Full Court confirmed that:

• a genuine show cause letter proposing dismissal and inviting a response is not a ‘threat’ within the meaning of the Fair Work Act 2009 (Cth) (FW Act); and
• an employer does not need to lead evidence from every adviser involved in a decision to take adverse action for the employer to discharge its reverse onus of proof.

What happened in Totino?

Ms Totino, a senior Metro Trains employee, was stood down following bullying complaints and later made a workers’ compensation claim for psychological injury. After an extended absence, Metro Trains issued a show cause letter proposing termination because the medical evidence indicated she was unlikely to return and the role needed to be filled permanently. It considered Ms Totino’s response before terminating her employment.

In mid-June 2022, Metro Trains' Acting Director of Workplace Relations Kelvin Reidy, a practising lawyer, was instructed to review Ms Totino's employment and advise on her ongoing absence from work. He subsequently provided written advice to Metro Trains' General Manager of Operations, Gary Wegert, and Head of Train Services, Phillipa Thomas (together, the Decision Makers), concerning the process to be followed and the response to Ms Totino's show cause submissions. Mr Reidy also made recommendations to the Decision Makers and assisted in drafting correspondence to Ms Totino.

Ms Totino alleged:

1. her dismissal was adverse action under the FW Act;
2. the show cause letter constituted a ‘threat’ to take adverse action within the meaning of section 342 of the FW Act; and
3. Metro Trains had misused workers’ compensation information contrary to section 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).

This article focuses on the first two claims and the Court's findings in relation to them.

Who must give evidence in a general protections claim?

Under section 361 of the FW Act, an employer bears a reverse onus of proof. This means the employer must prove that adverse action was not taken for a prohibited reason. Courts have held that to discharge the reverse onus, an employer must lead evidence from the decision makers who were involved in the decision to take the adverse action. Their evidence must be sufficient to persuade the Court the decision to take adverse action was not motivated by the alleged prohibited reasons.

Ms Totino argued Metro Trains could not discharge the reverse onus without calling the workplace relations adviser who had assisted with the process. The Court rejected that submission. Unlike in other cases where the relevant adviser had materially influenced the decision to take adverse action (making their evidence necessary to establish the decision-maker's reasons), the position in Totino was different.

Although Mr Reidy's written advice appeared to contain recommendations, the Court accepted that the Decision Makers had independently arrived at the reasons for the relevant actions, namely, Ms Totino's medical incapacity and the operational need to permanently fill her position. The Court found Mr Reidy's role was principally to advise on whether the proposed course of action was available to Metro Trains, rather than to determine why that course should be taken.

This meant Mr Reidy’s involvement did not amount to the kind of significant contribution that would make his state of mind relevant for the purposes of s 361. As he did not materially influence either the outcome or the reasons for it, Metro Trains was not required to call him as a witness, and no adverse inference was drawn from its decision not to do so.

Totino confirms that an adviser's evidence will generally only be required where the adviser has materially influenced the adverse action or the reasons for it. Advice concerning process, legal compliance, available options or the drafting of correspondence will not, of itself, make the adviser's state of mind relevant where the decision makers have independently formed the reasons for the action. For employers, the decision reinforces that the focus of the reverse onus remains on the evidence of the actual decision makers unless an adviser has played a substantive role in shaping the decision or the reasons for it.

Is a show cause letter a threat under the Fair Work Act?

The Court also held that ‘threatening’ conduct requires an intimidatory purpose.

Metro Trains’ letter identified the proposed termination and its basis, invited a response and made clear that no final decision had been made. It was an opportunity for Ms Totino to respond and have input before the decision was made, rather than an attempt to coerce.

Employers should follow the same structure: state the proposed action, explain the basis, provide a genuine opportunity to respond and reserve the final decision until that response is considered.

Practical lessons for employers managing terminations

For employers, Totino reinforces the need to identify the true decision makers, document their independent reasons and conduct a procedurally fair show cause process.

The decision should not be read as meaning advisers can always remain outside the evidentiary picture. The Court will focus on the substance of the adviser’s involvement. If an adviser supplies or materially shapes the reasons for action, their evidence may be needed to discharge the reverse onus. They will almost certainly be required if they make recommendations about outcome. If their role is confined to advising on process, risk and available options, the decision may properly remain attributable to the identified decision makers.

In larger organisations, multiple decision makers may properly be involved in a termination decision. Employers are not required to call every adviser involved in the process simply because their advice was sought or provided. However, where it is unclear who made the decision, or advisers move beyond providing guidance, and influence or determine the outcome, employers may face difficulty if they fail to accurately identify whose evidence is relevant for the purposes of the reverse onus and fail to call all relevant witnesses.

When could HR and workplace relations advisors be required to give evidence?

HR/workplace relations advisers now have a clearer understanding about when they may be required to give evidence in general protections proceedings – or, worse, be implicated as accessories to alleged contraventions. We will publish a separate paper looking at this in detail, specifically intended for HR/workplace relations advisers and consultants.

EPL claims – why decision maker evidence matters

For claims managers handling EPL claims, early scrutiny should focus on who made the decision to take adverse action against the claimant, whether their reasons are supported by contemporaneous records and whether advisers influenced process or substance. There may be coverage and defence implications where individual managers or executives are insured persons under the policy. In some cases, differing evidence about who made the decision and why it was made may warrant consideration of separate representation.