Totino v Metro Trains Melbourne Pty Ltd [2026] FCAFC 120 (08 September 2026) (McEvoy, Dowling and Hill JJ)

Catchwords: INDUSTRIAL LAW – general protections – adverse action – appeal from Federal Circuit and Family Court of Australia (Div 2) – show cause letter sent to appellant proposing termination because of her medical incapacity and the respondent’s operational needs – appellant then dismissed from her employment for those reasons – reverse onus under s 361 of the Fair Work Act 2009 (Cth) – where an officer who provided advice to the decision-makers was not called to give evidence and his advice was not produced – no error in the primary judge’s finding that the onus was discharged – whether show cause letter was “threatened” adverse action within s 342(2) – letter was not a threat because it did not contain any intimidatory purpose – whether primary judge wrongly rejected evidence of a change in circumstances sought to be provided by the appellant after the hearing while judgment was reserved – fresh evidence could not have affected the result because it went to quantum of liability and no liability found TORTS – breach of statutory duty – claim that the respondent’s use of medical information provided under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) gave rise to an action in damages for breach of s 588 – s 588 does not give rise to private right of action in damages – appeal dismissed