Totino v Metro Trains Melbourne Pty Ltd - [2024] FedCFamC2G 1370

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Totino v Metro Trains Melbourne Pty Ltd [2024] FedCFamC2G 1370

File number(s): MLG 2358 of 2022

Judgment of: JUDGE J YOUNG

Date of judgment: 11 December 2024

Catchwords: INDUSTRIAL LAW – general protections – whether adverse action taken against applicant – whether refusal to provide allegations details to the applicant constitutes adverse action – found refusal to provide details of the allegations does not constitute adverse action – whether the refusal to provide allegations details was because the applicant exercised a workplace right – found exercise of workplace rights were not operative reason for refusal to provide allegation details – whether a show cause letter constituted a threat to dismiss the applicant – found show cause letter does not convey a threat and accordingly does not constitute adverse action – reverse onus discharged by employer in relation to all three instances of adverse action – whether the respondent breached s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 by using a medical report to decide termination– found no tortious cause of action or breach of statutory duty – application dismissed.

Legislation:
Fair Work Act 2009 (Cth) ss 88, 96, 340, 341, 342(1), 342(2), 351, 360, 361

Criminal Procedure Act 2009 (Vic)

Judicial Proceedings Reports Act 1958 (Vic) s 4(1A)

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 40(1), 75, 522, 523, 588, 608(1) – (3), 608(6)

Sentencing Act1991 (Vic) s 111

Counselling and Disciplinary Procedure cll 1, 2, 3.4

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41

Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281

Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251

Fair Work Ombudsman v Australian Workers Union and Davis [2017] FCA 528

Gardiner v State of Victoria [1999] VSCA 100

Jane Doe v Fairfax Media Publications Pty Limited & Anor [2018] NSWSC 1996

Jones v Dunkel (1959) 101 CLR 298

McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297

Messenger v Commonwealth [2022] FCA 677

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) (2019) FCA 1754

Preston v Star City Pty Ltd [1999] NSWSC 1273

Ryan v Primesafe (2015) 323 ALR 107

Sayed v CFMEU [2015] FCA 27

Sovar v Henry Lane Pty Ltd [1967] HCA 21

Division: Division 2 General Federal Law

Number of paragraphs: 139

Date of last submission/s: 9 April 2024

Date of hearing: 12 & 13 February 2024

Place: Melbourne

Counsel for the Applicant: Mr Millar

Solicitor for the Applicant: Forty Four Degrees Lawyers And Consultants

Counsel for the Respondent: Mr Howard

Solicitor for the Respondent: Herbert Smith Freehills
ORDERS

MLG 2358 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PENELOPE JANE TOTINO

Applicant

AND:
METRO TRAINS MELBOURNE PTY LTD

Respondent

ORDER MADE BY:

JUDGE J YOUNG

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:
1.The Application filed 26 October 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG
INTRODUCTION

Before the Court are claims by the applicant, Ms Totino, against the respondent, Metro Trains Melbourne Pty Ltd (Metro Trains) for contraventions of the Fair Work Act 2009 (Cth) (FW Act) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).
Ms Totino’s claims against Metro Trains in the Amended Statement of Claim are as follows:
(a)Metro Trains took adverse action against Ms Totino by:
(i)threatening to take action by altering her position to her prejudice;
(ii)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 (refusal to provide allegation details);
(iii)threatening to take action to terminate her employment (threatened termination);
(iv)terminating her employment (termination); and
(b)Metro Trains took adverse action against Ms Totino for a protected attribute, in contravention of s 351 of the FW Act;
(c)Metro Trains breached ss 88 and 96 of the FW Act by wrongfully making reductions in Ms Totino’s annual leave and personal leave balance; and
(d)Metro Trains breached s 588 of the WIRC Act by using a medical report in deciding to terminate Ms Totino’s employment (breach of the WIRC Act).
Ms Totino claims the adverse action taken by Metro Trains in paragraph [2](a) above were for the reason, or for reasons which included, Ms Totino exercising workplace right(s).
Following the trial, Ms Totino provided confirmation of the claims pressed, and clarified that claims as outlined at paragraph [2](a)(i), (b) and (c) above were no longer pressed.
Accordingly, the claims for determination by the Court are:
(a)refusal to provide allegation details;
(b)threatened termination;
(c)termination; and
(d)breach of the WIRC Act.
In its Amended Defence, Metro Trains admits adverse action was taken against Ms Totino in the termination of her employment, but denies this was for the reason, or for reasons which included, Ms Totino exercising her workplace rights. It denies that the refusal to provide allegation details was adverse action, and denies that there was a threatened termination. It further denies breaching s 588 of the WIRC Act.
FACTUAL BACKGROUND
Metro Trains is the operator of train services on the metropolitan rail network in Melbourne, Victoria.
Ms Totino commenced employment with Metro Trains on 14 October 2019. Ms Totino was employed in the position of Group Train Driver Manager, initially as the North Group Manager and subsequently as the Central Group Manager. Central Group is the largest of Metro Trains three operational groups. The role held by Ms Totino was a senior leadership role, which was complex and important. As Central Group Manager, Ms Totino was responsible for people management within the Central Group, with approximately eight direct reports who were Depot Train Driver Managers and approximately 500 train drivers who reported to the Depot Train Driver Managers.
Ms Totino was employed pursuant to a contract of employment which required her to comply with the Metro Trains Code of Conduct and Metro Trains policies and procedures.
Ms Totino’s employment was terminated by Metro Trains on 18 July 2022.
Phillipa Thomas is the Head of Train Services for Metro Trains responsible for 40 management staff and 1,200 train drivers. Ms Thomas commenced this position in March 2021. Ms Totino reported directly to Ms Thomas.
Gary Wegert was the General Manager of Operations for Metro Trains from August 2019 until July 2023. As General Manager of Operations, Mr Wegert was responsible for overseeing the operation function of the railway network. Ms Thomas reported directly to Mr Wegert during the relevant period.
Robert Duvel is the Executive Director, Safety and People for Metro Trains and commenced in this position in May 2021. Mr Duvel has broad responsibility for all matters relating to workplace relations, human resources and safety within Metro Trains. This includes making decisions to terminate an employee’s employment where required and approving all terminations of employment within the business. Mr Duvel reports to Raymond O’Flaherty, the Chief Executive Officer for Metro Trains.
The key factual background is largely not in dispute and may be summarised as follows:
(a)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.
(b)On 28 February 2022, Ms Totino received a phone call and a letter from Ms Thomas informing her that Metro Trains had received complaints about her and that she would be stood down from her employment effective immediately while Metro Trains investigated the matter.
(c)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. In the letter, Ms Totino advised of an “immediate degradation of [her] health and well-being”, addresses the process undertaken by Metro Trains, her stand down, Metro Trains’ duty of care and the next steps sought. This letter is the First Complaint.
(d)On 4 March 2022, Ms Thomas sent a letter to Ms Totino responding to the First Complaint. In this letter, Ms Thomas proposes Ms Totino transfer to an alternative position, being Operations Integration Manager. Ms Thomas also indicates the steps that will be taken to address the complaints made against Ms Totino.
(e)On 5 March 2022, Ms Totino wrote to Mr O’Flaherty and Mr Duvel that she had suffered a psychological injury as a result of Metro Trains’ conduct from 28 February 2022. She advised Metro Trains of her intention to make a report of the workplace injury. Ms Totino requested Metro Trains’ policy and procedure on reporting the workplace injury.
(f)On 7 March 2022, Ms Totino wrote to Ms Thomas notifying her of insomnia, anxiety and low mood and of the need to take personal leave.
(g)On 8 March 2022, Mr Duvel sent a response to Ms Totino. In that response, Mr Duvel stated she would be provided with the “Incident Management & Reporting Procedure and Guideline and relevant supporting documentation” to report the workplace injury, and also stated that “if you prefer you may elect to remain away from the workplace on full pay until the investigation process is finalised”.
(h)On 9 March 2022, Ms Totino provided a medical certificate from her treating practitioner, certifying her as unfit for work from 7 March 2022 to 18 March 2022.
(i)On 16 March 2022, Ms Totino submitted a Worker’s Injury Claim Form. The medical certificate attached to that claim provided 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.” This is the Compensation Claim.
(j)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. The email notes that Ms Totino’s then current Certificate of Capacity was valid to 5 April 2022. The email states that if Ms Totino remained unfit for duty, Metro Trains may pay her from her annual leave if she would like for this to occur. It also stated that if she is fit for duty after 5 April 2022, she can return to work in an alternative position or can remain on suspension on full pay.
(k)On 31 March 2022, Ms Totino sent an email to Mr Duvel responding to Ms Thomas’ email of the same date. In that email, Ms Totino requested reimbursement of her personal leave balance on the basis of the leave with pay offer. She also requested details of the allegations made against her. This email is the Second Complaint.
(l)On 5 April 2022, Mr Wegert sent an email in response to the Second Complaint. Mr Wegert stated that future correspondence should be written directly to him. He also stated that the reason Ms Totino had not been provided with details of the allegations made against her was because of the medical certificates (including the certificate attached to the Worker’s Injury Claim Form), which stated that Ms Totino has been unfit for duty since 7 March 2022. He further stated that as long as Ms Totino is fit for duty, she will be paid whilst stood down; and that if she is unfit for duty, she will not be paid on the basis of being stood down but rather from her personal leave entitlements. This email is the First Refusal to Provide Allegation Details adverse action alleged by Ms Totino.
(m)On 11 April 2022, the Compensation Claim was rejected by Allianz Australia Insurance Limited (Allianz) pursuant to s 40(1) of the WIRC Act.
(n)On 12 April 2022, Ms Totino sent an email to Mr Wegert requesting that she be recredited her personal leave balance and be provided with details of the allegations made against her. This email is the Third Complaint.
(o)On 13 April 2022, Ms Totino filed a request with the Accident Compensation and Conciliation Service (ACCS) in order to dispute the decision by Allianz to reject the Compensation Claim. This is the Conciliation Request.
(p)On 14 April 2022, Mr Wegert replied to the Third Complaint stating that Metro Trains would not be recrediting the personal leave paid since 7 March 2022, nor would it resume payments for Ms Totino’s stand down until she is fit for duty. He also stated that Metro Trains would not write to Ms Totino about the investigation until she is fit for duty. This email is the Second Refusal to Provide Allegation Details adverse action alleged by Ms Totino.
(q)On 24 May 2022, Ms Totino’s lawyer sent a letter by way of email to Mr Wegert and made a number of legal demands. This included re-crediting Ms Totino’s personal leave balance, seeking details of the allegations made against her, and information regarding the status of the investigation. This letter is the Fourth Complaint.
(r)On 2 June 2022, Mr Wegert provided a response to the Fourth Complaint. In this letter, Mr Wegert states that Ms Totino’s Certificates of Capacity state that she is unfit for work, and no documents have been sent to Ms Totino because of her notifying that she was unfit for any duties. This email is the Third Refusal to Provide Allegation Details adverse action alleged by Ms Totino.
(s)On 14 June 2022, the conciliation took place with ACCS. There was no resolution at the conciliation and a genuine dispute certificate was issued by the ACCS.
(t)On 4 July 2022, Ms Totino referred the Compensation Claim to WorkSafe for internal review. This is the Review Application.
(u)On 11 July 2022, Mr Wegert sent a letter by way of email to Ms Totino (Show Cause Letter). In the Show Cause Letter, Mr Wegert states as follows:
…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.
The Show Cause Letter asks that Ms Totino provide a response by close of business 14 July 2022 which addresses Metro Trains’ proposal to terminate her employment before a final decision is made. The letter concludes by saying that a final decision as to Ms Totino’s employment will be made after 14 July 2022. The Show Cause Letter constitutes the Threatened Termination adverse action alleged by Ms Totino.
(v)On 12 July 2022, Ms Totino sent an email replying to the Threatened Termination. In this email, Ms Totino states that medical evidence has supported that she is fit to engage in an investigative process into the allegations made against her. Ms Totino also states that she has lodged the Review Application and that if her Review Application is successful, she will be protected from dismissal for 12 months. This email is the Fifth Complaint.
(w)On 18 July 2022, Metro Trains terminated Ms Totino’s employment. On that same day, Mr Wegert sent a letter to Ms Totino confirming that Metro Trains had made the decision to terminate her employment. This is the Termination.
ADVERSE ACTION CLAIMS
Applicable legislative provisions and legal principles
Chapter 3 of the FW Act is concerned with the rights and responsibilities of employees, employers and organisations. Part 3-1 deals with general protections of employees and operates to protect workplace rights.
Section 340 of the FW Act relevantly provides as follows:
(1)      A person must not take adverse action against another person:
(a)       because the other person:
(i)        has a workplace right; or
(ii)       has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right…
Section 341 of the FW Act then provides the meaning of workplace right, relevantly, as follows:
(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.
Section 342(1) of the FW Act, in turn, provides the meaning of adverse action and states that adverse action is taken (in the case of an employer) against an employee if the employer:
(a)       dismisses the employee; or
(b)      injures the employee in his or her employment; or
(c)       alters the position of the employee to the employee’s prejudice; or
(d)      discriminates between the employee and other employees of the employee.
Section 342(2) of the FW Act clarifies that adverse action includes “threatening to take action” as covered by subsection 1.
Section 361 of the FW Act relevantly states that if it is alleged 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…taken for that reason or with that intent, unless the person proves otherwise”. Section 360 also provides that a person takes action for a particular reason “if the reasons for that action include that reason”.
Accordingly, the presumption exists that Metro Trains took the adverse actions against Ms Totino because of the existence, exercise or anticipated exercise of her workplace rights, in breach of s 340 of the FW Act, unless proven otherwise by Metro Trains.
Workplace rights relied on by Ms Totino
Ms Totino relies upon the following workplace rights:
(a)the First Complaint, being a complaint about non-compliance with Metro Trains internal policies and a failure to meet Metro Trains’ duty of care arising under general law, made by letter dated 1 March 2022;
(b)the Compensation Claim, submitted on 16 March 2022;
(c)the Second Complaint, being a complaint about reimbursement of personal leave balance, made by email dated 31 March 2022;
(d)the Third Complaint, being a complaint about reimbursement of personal leave balance, made by email dated 12 April 2022;
(e)the Conciliation Request, filed on 13 April 2022;
(f)the Fourth Complaint, being a complaint about reimbursement of personal leave balance and request for details of allegations, made by letter dated 24 May 2022;
(g)the Fifth Complaint, being a complaint about the proposed termination of her employment and the seeking of internal review of the Compensation Claim, made by email dated 12 July 2022; and
(h)the Review Application, being an application for review with the Workers Compensation Independent Review Service, lodged on 4 July 2022.

Metro Trains disputes that the First Complaint and the Fifth Complaint meet the definition of a workplace right for the purpose of s 341(1)(c) of the FW Act. It further argues that the Compensation Claim and Conciliation Request were not put to witnesses in cross-examination and should be excluded. It accepts that the Second, Third and Fourth Complaints were an exercise of Ms Totino’s workplace rights.
Adverse Actions
Ms Totino submits that the following adverse actions were taken against her:
(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; and
(c)terminating her employment.
Metro Trains:
(a)deny that conduct asserted in (a) and (b) above constitutes adverse action as defined in s 342 of the FW Act; and
(b)agree that conduct in (c) constitutes adverse action as defined in s 342 of the FW Act.
Metro Trains deny that the Termination was taken because Ms Totino exercised or proposed to exercise any of the workplace rights asserted by her.
FIRST ADVERSE ACTION CLAIM – REFUSAL TO PROVIDE ALLEGATION DETAILS
Ms Totino submits that by refusing to provide her with details of the allegations made against her, Metro Trains took adverse action as they discriminated between her and other employees of Metro Trains.
Ms Totino submits that there were three instances where Metro Trains refused to provide Ms Totino with details of the allegations:
(a)the First Refusal to Provide Allegation Details on 5 April 2022
(b)the Second Refusal to Provide Allegations Details on 14 April 2022; and
(c)the Third Refusal to Provide Allegation Details on 2 June 2022.
With respect to the First Refusal to Provide Allegations Details, Ms Totino asserts adverse action was taken against her because she exercised the following workplace rights:
(a)the First Complaint;
(b)the Second Complaint; and
(c)the Compensation Claim.
With respect to the Second Refusal to Provide Allegation Details, Ms Totino asserts adverse action was taken against her because she exercised the above workplace rights and also the following workplace rights:
(a)the Third Complaint; and
(b)the Conciliation Request.
With respect to the Third Refusal to Provide Allegation Details, Ms Totino asserts adverse action was taken against her because she exercised the above workplace rights and also her workplace right with respect to the Fourth Complaint.
Metro Trains deny that the refusal to provide allegation details constitutes adverse action for the purposes of s 342(1) of the FW Act.
Does the refusal to provide allegation details constitute adverse action?
It is uncontested that Metro Trains did not provide the allegations made against Ms Totino to her. It is also uncontested that Ms Totino requested she be provided with the allegations.
Ms Totino contends that by refusing to do so Metro Trains treated her differently from other employees, submitting that in “the normal course” such allegations would have been provided to Ms Totino. Ms Totino submits that on the evidence of Mr Wegert and Ms Thomas, an employee in the same situation but with capacity to work would not have been treated in the same way. As such, it is contended that Metro Trains discriminated between Ms Totino and other employees for the purposes of s 342(1)(d) of the FW Act.
Ms Totino relies upon Sayed v CFMEU [2015] FCA 27 (Sayed) where Mortimer J (as her Honour then was) said at [160]:
In my opinion, the language of Item 1(d), and its use of the word “between” suggests the conduct which is to be examined is the way in which the employer targets the particular employee. Is that employee treated differently from other employees?
For the following reasons, I reject those submissions.
In Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (Pilbara) Katzmann J said at [40] – [43]:
Item 1(d) of the table in s 342(1) does not speak of discriminating against someone (which is the formulation in some anti-discrimination legislation and also in item 2(b) of the table) but discriminating between people. “Discriminates” is not defined so it must have its ordinary meaning which, relevantly, is simply to make a distinction (the first meaning in both the Oxford and the Macquarie Dictionaries). Still, the section is dealing with adverse action. I think it is unlikely — despite the difference in the prepositions used in items 1(d) and 2(a) — that the Parliament had in mind anything other than conduct which discriminated against one employee when compared with other employees. The applicants accepted this in their opening submissions, although they retreated from this position in their closing submissions. I rather think that the different expressions were used for syntactical reasons.
Both parties nevertheless accepted that discriminate in this context means “treat less favourably”. That necessarily imports the concept of discriminating against the employee who has been treated in this way.
The real difficulty is in deciding how the comparison should be made. The difficulty is not as acute in the anti-discrimination legislation where the various statutes provide that a person discriminates against another on a particular ground in defined circumstances. Here, the circumstances are not defined. Section 5 of the Disability Discrimination Act 1992 (Cth), for example, relevantly provides that a person (the discriminator) discriminates against an aggrieved person on the ground of a disability if, because of the aggrieved person's disability, the discriminator treats the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. In that context, the High Court held in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (a case of a disabled child whose disability caused him to behave violently at a school from which he was then excluded) that the relevant comparison was between the child concerned and another child without the disability who had behaved in a similar way. That is, the treatment of the alleged victim is to be compared with the treatment of another person with or without the relevant attribute or ground on which discrimination is prohibited. Here, however, item 1(d) of s 342 does not define the relevant attribute or ground. The prohibited reasons can be found in ss 340 and 346, but these provisions only apply once adverse action has been established.
The applicants submitted that the mere failure to offer continuing employment to Mr Lamberth when other trainee car examiners were is sufficient to establish that the relevant discrimination occurred. Yet, this does not seem to be the approach suggested in Barclay. In Barclay (at [35]–[36]) Gray and Bromberg JJ (albeit obiter) appear to have assumed (by their reference to the comparative test in Purvis) that what is required under item 1(d) is indeed a comparison between the employer’s treatment of the employee in question and of other employees who acted in the same way as the employee in question. With respect, to import the reasoning in Purvis, which was concerned with the interpretation of different words in a different statute in a different context, is to invite error. Still, I doubt the correctness of the applicants’ position that offering further employment to some and not others is sufficient. That approach was rejected in Hodkinson v The Commonwealth (2011) 207 IR 129. In my view item 1(d) requires that one employee is treated differently from others in the same or comparable circumstances. Here, however, no comparisons were offered. The evidence was entirely silent. If this is the correct approach, then the applicants would have failed to make out their claim.
In Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) (2019) FCA 1754 (Morton) Rangiah J said at [70] – [72]:
There is tension between the views expressed about the meaning of the phrase “discriminate between” in Item 1(d) in Sayed and in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697. In Sayed, Mortimer J held at [158] that “discriminate between” in Item 1(d) should be construed as “treating people differently”. In contrast, in Pilbara Iron, Katzmann J accepted at [40]–[41] that “discriminate between” should be construed as “discriminate against”, and means “treat less favourably”.
I prefer the construction given in Pilbara Iron. It is true that the phrase “discriminate between the employee and other employees” is used in Item 1(d) of the Table in s 342(1) of the FW Act, in contrast to phrases like “discriminates against the employee” in Item 2(b) and 4(b) of the Table and ss 153, 195 and 354 of the FW Act. However, taking the opening words of s 342(1) into account, the provision reads, relevantly, that, “a person takes adverse action against another person…if…the employer…discriminates between the employee and other employees of the employer”. The phrase, read as a whole, suggests that it refers to conduct which discriminates against one employee (or a group of employees). That Item 1(d) of the Table in s 342(1) of the FW Act does not merely refer to different treatment, including favourable treatment, conforms to the other types of adverse action specified in the Table, each of which involves unfavourable treatment of an employee.
In addition, while it was held in Sayed that the concept of less favourable treatment is imported by the anti-discrimination laws described in s 351(3), the word “discriminate” in Item 1(d) applies also to other provisions, namely ss 340 and 346, which adopt the definition of “adverse action”. But the anti-discrimination laws are only picked up by s 351, not the other provisions. The protective purposes of ss 340 and 346 indicate that they are only concerned, relevantly, with less favourable treatment of an employee or group of employees. Accordingly, Item 1(d) requires less favourable treatment of an employee (or a group of employees) in comparison to other employees of the employer.
I respectfully adopt his Honour’s reasoning in Morton.
Accordingly, for the purposes of whether adverse action as defined in s 342(1)(d) of the FW Act is established, the question to be determined by the Court is not that contended for by Ms Totino. Rather, as submitted by Metro Trains, in the present circumstances s 342(1)(d) requires a comparator between Ms Totino and another employee who is unable to participate in an investigation due to certified medical incapacity to work. There was no direct evidence as to this comparator before the Court.
The evidence that is before the Court in relation to comparable treatment is that, as set out above, on 5 April 2022 and again on 14 April 2022 Mr Wegert wrote to Ms Totino in relation to her request for the details of the allegations made against her.
In so far as is presently relevant:
(a)the 5 April 2022 correspondence included the following statement: “…It is our normal approach to not engage with an employee about an investigation into their alleged misconduct, where the employee has notified us that they are unfit for duty…”; and
(b)the 14 April 2022 correspondence included the following statement: “… Metro’s advice to you remains that we will not write to you about the investigation until you are fit for duty. We say this having considered the advice of your doctor who we note has also stated that you have no capacity for employment from 31 March to 28 April 2022. Based on this advice we see no reason to deviate from our normal approach which is being taken in the best interests of your wellbeing…”.
Additionally, further evidence of comparable treatment is contained in clause 3.4 of the Counselling and Disciplinary Procedure (Procedure) which relevantly provided:
3.4 Non-Compliance with an Investigation
If you decide not to provide any statements or participate in an investigation Metro will continue the investigation to its conclusion without your participation.
Accordingly, on the evidence that is before the Court there was no less favourable treatment. On the basis of the 5 April 2022 and 14 April 2022 correspondence, the “normal approach” was the approach afforded to Ms Totino; that is, the approach that would have been afforded to any other employee against whom allegations of misconduct had been made and who was unfit for work due to illness or injury. On the basis of the Procedure, Ms Totino was afforded more favourable treatment as the investigation was paused pending her being certified as fit to return to work, or alternatively, certified as fit to participate in the investigation.
Accordingly, I find that the refusal to provide to Ms Totino details of the allegations made against her does not constitute adverse action for the purposes of s 342(1)(d) of the FW Act.
Should I be wrong and contrary to my finding, the refusal to provide Ms Totino details of the allegations made against her does constitute adverse action for the purposes of s 342(1)(d) of the FW Act, I address below whether Ms Totino exercised workplace rights and whether the refusal to provide Ms Totino with the details of the allegations made against her was because she exercised a workplace right.
Did Ms Totino exercise workplace rights?
Metro Trains concedes that Ms Totino exercised a workplace right by making the Second, Third and Fourth Complaints and the Compensation Claim. I also do not understand it to contest that the Conciliation Request is a workplace right that was exercised by Ms Totino.
Metro Trains disputes that the First Complaint is the exercise of a workplace right by Ms Totino as it fails to disclose a source of entitlement either under statute, contract or general law.
However, for the reasons that follow it is not necessary for me to determine whether the First Complaint was the exercise of workplace right by Ms Totino.
Was adverse action taken because of the exercise of workplace rights?
Ms Totino submits that Mr Wegert’s email of 5 April 2022 “acknowledges that Ms Totino was treated differently because she has exercised workplace rights”. She submits that Mr Wegert provides a clear explanation that Ms Totino has been treated differently “because” she lodged the Compensation Claim. She submits that “the causal link is evident in Metro’s own evidence”. I reject those submissions.
Mr Wegert’s email of 5 April 2022, relevantly, said as follows:
…Likewise, we understand that you have asked for the details of the allegations made against you, and all other information about the investigation of those allegations. In the normal course we would have provided you with that information. You would also have been interviewed by the investigator. The reason we have not provided you with that information is because of the medical certificates (including your WorkCover claim) you have provided us since 7 March 2022. Through those documents you have told us that you have been unfit for duty since 7 March 2022.
It is our normal approach to not engage with an employee about an investigation into their alleged misconduct, where that employee has notified us that they are unfit for duty. The reason we take this approach is because it would not be appropriate to notify an employee of work related matters, at a time they are dealing with and recovering from an illness/injury. It is a measure to protect the health and safety of the employee, which in this case is you. It is for this reason that we have deliberately not sent any information about the allegations/investigation to you in the period you have been unfit for duty. We will wait until you are fit for duty to then engage with you about the allegations and the investigation process…
(Court’s emphasis).
I reject that the above demonstrates a causal link between the refusal to provide the details of the allegations and the Compensation Claim. Such a construction fails to read the reference to the Compensation Claim in the context of either the entire sentence, the paragraph as a whole or with reference to the immediately following paragraph. The paragraph makes clear that “the reason” for not providing Ms Totino with the allegations is because of the medical certificates (including the Compensation Claim) providing that Ms Totino is not fit for duty. It is therefore the content of those documents that is the reason for not providing the details of the allegations, which includes the content of the Compensation Claim, not because the Compensation Claim was made. That this is so is confirmed by the further paragraph (with particular reference to the Court’s emphasis above) and Mr Wegert’s emails of 14 April 2022 and 12 May 2022 in which he said, respectively:
Metro’s advice to you remains that we will not write to you about the investigation until you are fit for duty. We say this having considered the advice of [Dr Everitt] who we note also stated that you have no capacity for employment from 31 March to 28 April 2022. Based on this advice we see no reason to deviate from our normal approach which is being taken in the best interests of your wellbeing.
…
I have checked your most recent medical certificate, dated 3 May 2022. As you would be aware that document states that you have no capacity for employment from 5 May 2022 to 31 May 2022. We accept that under the heading ‘Treatment Plan’ your doctor has written:
“It will be difficult for Ms Totino to improve and move forwards without her receiving some information on why she is in this position to begin with. I would recommend the employer provides her with this information in writing so that she is able to process and understand what has happened.”
We find the medical advice about the recommendation of your doctor inconsistent. It may be the case that they do not appreciate the full extent of the situation, and the reason we have not provided you with the information you have requested. Ultimately though this is not a matter we need to resolve, as we rely upon the certification of your doctor that you have no capacity for employment. Based on that advice and our consistently stated position, we will not provide the misconduct documents which you have requested. We will do so when your doctor certifies that you are fit for employment, or alternatively fit to participate in the investigation process.
Further, Mr Wegert’s affidavit evidence as to this matter was:
…I recall making the decision that Metro would not change its position and would not provide details of the allegations requested by Ms Totino given that she remained unfit to work. I wanted to maintain a consistent approach as to what was previously decided by Ms Thomas, and importantly, I did not want to put Ms Totino’s health at a greater risk during this time.
…
…As set out above, I wanted to continue to maintain a consistent approach as to what was previously decided by Ms Thomas, and importantly, did not want to put Ms Totino’s health at greater risk during this time. I would have made the same decision for any employee who had provided medical evidence that they were not fit during that time, as I would never want to make a person’s medical condition worse through my actions.
That evidence was not challenged and I accept it. Further, under cross-examination the following exchange occurred between Counsel for Ms Totino and Mr Wegert:
Mr Millar:Okay. And you knew that well, Ms Totino had never, in fact, been told what the misconduct and bullying allegations were against her, what actually she was alleged to have done. You would agree with that?
Mr Wegert:Yes. However, on advice, that was the approach that we were taking to try to look after Ms Totino’s health. How can you receive a letter saying that she’s unfit for duty psychologically and then put more pressure on Ms Totino?
Mr Millar:And when you say you were advised, who advised you that?
Mr Wegert:IR
Mr Millar:And who in IR?
Mr Wegert:Mr Reidy.
Mr Millar:Okay. And he told you, “No. No. We don’t need to give her that information about the allegations. We can just proceed without divulging that information”. Is that what - ?
Mr Wegert:No. He didn’t say it like that.
Mr Millar:Okay. How did he say it?
Mr Wegert:He was given advice of certificates that he had received and in our view, we believed that we were not going to provide that information until Penny was – or Ms Totino was fit for work.

The principles relevant to discharging the statutory presumption in s 361 are well-settled. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (Barclay) at [41], French CJ and Crennan J said that “the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act.” Their Honours continued at [45]:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(Citations omitted)
In other words, the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in light of all the circumstances established in the proceeding: Barclay at [41], [45]. The question is whether the alleged prohibited reason was a "substantial and operative" reason for taking the adverse action: Barclay at [56] - [59, [104], [127]. Direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary references are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].
Accordingly, having regard to the direct testimony of Mr Wegert, the other evidence before the Court and all the relevant facts and circumstances, I find that the reasons for not providing the allegations to Ms Totino were because she was certified as having no capacity for work and Metro Trains did not want to put her health at greater risk and was not because of, or for a reason that included, Ms Totino exercising any of the workplace rights asserted. The workplace rights asserted by Ms Totino were not a substantial and operative reason for the alleged adverse action.
Accordingly, even if contrary to my finding, the refusal to provide details of the allegations constitutes adverse action for the purposes of s 342(1)(d) of the FW Act, that action was not taken because Ms Totino exercised her workplace right to make the Compensation Claim or exercised any of the other workplace rights asserted by her. The exercise of those rights was not a substantial or operative reason for the refusal to provide details of the allegations to Ms Totino.
SECOND ADVERSE ACTION CLAIM – THREATENED TERMINATION
Ms Totino submits that by sending her the Show Cause Letter, Metro Trains took adverse action against her as they threatened to dismiss her.
Ms Totino asserts adverse action was taken due to her exercising the following workplace rights:
(a)the First Complaint;
(b)the Second Complaint;
(c)the Third Complaint;
(d)the Fourth Complaint;
(e)the Compensation Claim;
(f)the Conciliation Request; and
(g)the Review Application.
Metro Trains denies that the Show Cause Letter constitutes a threat to dismiss Ms Totino from her employment and submit it is therefore not adverse action for the purposes of s 342(1)(a).
Does the Show Cause Letter constitute adverse action?
It is uncontested that Mr Wegert sent the Show Cause Letter to Ms Totino and that the Show Cause Letter said “we are proposing to terminate your employment.”
It is also uncontested that pursuant to s 342(1)(a) and 342(2)(a) threatening to dismiss an employee constitutes adverse action for the purposes of the FW Act. At issue is whether the Show Cause Letter constitutes a threat to dismiss Ms Totino.
Ms Totino contends that the words “we are proposing to terminate your employment” are a threat to dismiss. The applicant contends that notwithstanding an opportunity was provided to respond prior to a final decision being made “there is no doubt that a termination of employment was foreshadowed as the proposed outcome”.
Metro Trains contends that the Show Cause Letter does not contain a threat to dismiss. Metro Trains submits that for someone to threaten another requires a demand that something be done and if it is not done, the communication of a consequence. Metro Trains submits that an intimidatory purpose must be conveyed. It contends that the Show Cause Letter only provided information and invited a response. It did not threaten a consequence if a demand was not acceded to. Finally, Metro Trains relies upon the decision of Snaden J in Messenger v Commonwealth [2022] FCA 677 (Messenger). As to this final submission Ms Totino submits that contrary to Messenger the Show Cause Letter did a good deal more than “allude only to the possibility” of termination of employment. It submits that it quite clearly said “we are proposing to terminate your employment”.
In Fair Work Ombudsman v Australian Workers Union and Davis [2017] FCA 528 (Davis) at [54] Bromberg J set out the following principles as to the meaning of “threatening to take action” as used in s 342(2)(a) of the FW Act:
(1)“threatening to take action” must involve the communication of a threat directed at an ascertainable person which is received or is likely to be received by that person. That a particular outcome is threatened by existing or prospective circumstances is not a threat of the requisite kind;
(2)to threaten means to communicate an intent to inflict harm or, in other words, a warning of an intention to inflict harm;
(3)the essence of a threat is that it is made for the purpose of intimidating a person. Accordingly, “threatening to take action” must involve an expression of an intimidatory purpose;
(4)it is not necessary that a subjective intent to carry out the threat be established;
(5)the notion of a threat is not confined to an intent to inflict harm which was unlawful or unjustified;
(6)the presence of malice or some other injurious motive is not a prerequisite; and
(7)a threat to take action may be conditional (in the sense that X will occur if Y does not).
The above summary of authorities has been adopted in a number of subsequent authorities.
At paragraph [55] of Davis his Honour said:
…However, that a communication makes reference to the prospective prejudicial consequences for a person, should various conditions be satisfied, does not of itself characterise the communication as a threat. If it were otherwise a threat would be made whenever a person is notified of prospective harm. There is a distinction to be drawn between the provision of information and a threat.
In Messenger, the relevant show cause letters included the following statement:
…a breakdown in our working relationship to the extent that it is irretrievable. In the present circumstances, I am forming the view that I may have no real option other than to terminate your employment. Such a decision would not be taken lightly and before reaching a decision, I would like to give you the opportunity to put your views forward. If you wish to respond, please do so…
At paragraph [164] of Messenger, his Honour said:
Those letters did not, in terms, threaten the Messengers with dismissal. Plainly enough, they made known the Senator’s view that circumstances had accumulated to a point that dismissal might eventuate, or perhaps even have been inevitable. They 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 that they wished to put beforehand. But there was no threat to dismiss. As is made clear above: 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: Fair Work Ombudsman v Australian Workers Union (2017) 271 IR 139, 155 [55] (Bromberg J).
At paragraph [165] his Honour found that the show cause letters were nothing more than an invitation to the Messenger’s to respond to the concerns that had been formed about them. At paragraph [167]-[168] his Honour said:
Similar observations arise in respect of the Second Show Cause Letter. As with its predecessor, it articulated some concerns that were said to be animating Senator Lambie, invited the Messengers to address those concerns (if they wished to), and indicated an intention on the part of the Senator to make a decision regarding their employment one way or the other (see above, [96]).
Again, nothing about that language or the circumstances that attended it could be said to communicate an intention, on the Senator’s part, to dismiss the Messengers. On the contrary, the letter’s purpose was clear on its face: it was to give Mr and Mrs Messenger an opportunity to explain, if they wished to, why the Senator’s concerns were unfounded or not otherwise of a kind that might warrant their dismissal.
I reject Metro Trains submission that Messenger is on all fours with the matter currently before the Court. I also accept Ms Totino’s submission that the Show Cause Letter did more than “allude to the possibility of termination”. On a plain reading the Show Cause Letter proposed Ms Totino’s dismissal. However, as set out by Bromberg J in Davis, the essence of a threat is that it is made for the purpose of intimidating a person. Accordingly, “threatening to take action” must involve an expression of an intimidatory purpose. In my view, the Show Cause Letter does not involve an expression of an intimidatory purpose. Rather, on a plain reading, the purpose of the Show Cause Letter is 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. As such, I consider that the Show Cause Letter is the provision of information to Ms Totino of Metro Trains proposed action and not a threat.
For completeness, I give no weight to Ms Totino’s evidence given under cross-examination as to whether the Show Cause Letter contained or constituted a threat. Ms Totino’s subjective understanding of this is not to the point.
Accordingly, I find that the Show Cause Letter does not constitute adverse action as defined in s 342(1)(a) and s342(2)(a) of the FW Act.
Should I be wrong and contrary to my finding, the Show Cause Letter does constitute adverse action for the purposes of s 342(1)(d) of the FW Act, I address below whether Ms Totino exercised workplace rights and whether the Show Cause Letter was because she exercised a workplace right.
Did Ms Totino exercise workplace rights?
Metro Trains concedes that Ms Totino exercised a workplace right by making the Second, Third and Fourth Complaints. As set out above, it disputes that the First Complaint was the exercise of a workplace right by Ms Totino. I also do not understand Metro Trains to contest that the Compensation Claim, the Conciliation Request nor the Review Application were the exercise of a workplace right by Ms Totino. For the reasons set out below, it is not necessary that I determine whether the First Complaint was the exercise of a workplace right.
Was adverse action taken because of the exercise of workplace rights?
From 31 March 2022, Mr Wegert took over from Ms Thomas the primary carriage of communicating with Ms Totino. His evidence is that whilst he was corresponding with Ms Totino directly, he kept Mr Duvel and Ms Thomas informed.
Mr Duvel and Ms Thomas’ evidence is that in mid-June 2022 Mr Reidy, then Acting Director of Workplace Relations, conducted a review of Ms Totino’s employment. Mr Wegert’s evidence is that on 22 June 2022, Mr Reidy provided him and Ms Thomas with written legal advice about Ms Totino’s employment (Advice Document). Ms Thomas’ evidence under cross-examination confirmed that the “review” conducted was a written review. It appears uncontested that the “review” and the “legal advice” referred to by Ms Thomas and Mr Wegert, respectively, are one and the same. I do not consider anything turns on Ms Thomas referring to this advice as a review. Under cross-examination her evidence was that she did not commission this advice. The evidence is that Mr Wegert did so. Metro Trains claim that the Advice Document is subject to legal professional privilege. Ultimately, the Court was not required to rule on this. Mr Wegert’s evidence, which I accept, was that Mr Reidy gave advice as a lawyer. Mr Reidy’s qualifications were ultimately before the Court. Further, there was a discussion between Counsel for Ms Totino and the bench as to the Advice Document and Ms Totino did not successfully challenge Mr Wegert’s evidence on these matters. Ms Totino submits however, that the Advice Document is the best evidence of the motivation for Metro Trains’ decision to move towards termination and that the absence of the Advice Document being before the Court means Metro Trains is poorly placed to discharge the statutory onus upon it. I reject that submission. Whatever Mr Reidy’s advice was in relation to Ms Totino, Mr Reidy was not the decision maker. Mr Wegert was the decision maker in relation to the issuing of the Show Cause Letter and his evidence is before the Court and was subject to extensive cross-examination. Mr Duvel’s evidence is that in around mid-June 2022 he spoke with Mr Reidy and Mr Wegert and approved Metro Trains proceeding to a show cause process due to Metro Trains having formed a preliminary view that Ms Totino did not have capacity to return to work. Mr Duvel’s evidence is before the Court and he was also subject to cross examination.
The Show Cause Letter, relevantly, provides as follows:
We have taken account of the period of time you have had no capacity for employment. In addition, we have considered the advice of your treating medical practitioner, which is frank and unequivocal, that you will not be able to return to work with MTM in any capacity at any time in the future. As you would be aware your position as a Group Manager is a critical one within Train Services. It is one of only three such positions within MTM and is instrumental to the good management of train services; the most public part of MTM's operations. To this point we have had another staff member act in your role, but this is not a sustainable situation for MTM. We have formed the view on the available medical advice, from your treating medical practitioner, that you will not return to work with MTM 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.
Mr Wegert’s affidavit evidence is that:
(a)in the week commencing 27 June 2022 he discussed with Mr Reidy and Ms Thomas that because Ms Totino had been absent due to medical incapacity for a period of 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 Ms Totino’s employment;
(b)he discussed the medical evidence Metro Trains had received which confirmed that Ms Totino would never again return to work at Metro Trains in any capacity or within the rail industry in Victoria; and
(c)there were two substantial factors in making the decision to commence the show-cause process in relation to Ms Totino’s employment. Firstly, Ms Totino’s role was critical to the business. Ms Totino was running Central Group, which is the biggest location to run in train crew, responsible for 400 staff. Secondly, Metro Trains had no indication how long Ms Totino would be absent from work due to medical incapacity.
Under cross-examination Mr Wegert’s evidence was that he sought Mr Reidy’s advice because Ms Totino had been absent for three months and that it was Metro Trains’ usual practice for managers to initiate a review after such a length of absence. His further evidence was that he had an initial telephone conversation with Ms Thomas about Mr Reidy’s advice on 22 June 2022. Ms Thomas’ evidence under cross-examination was consistent with this. On 23 June 2022 Mr Wegert requested a meeting with Mr Reidy to discuss his advice. That meeting was held by Microsoft Teams in the week commencing 27 June 2022 and Mr Wegert decided to proceed to issue the Show Cause Letter. Mr Wegert maintained his evidence under cross-examination that the reason for the show cause process and ultimately the termination of Ms Totino’s employment were two-fold as set out in the Show Cause Letter, variously saying:
Mr Wegert:My decision was based around advice that we had received, and we needed to act on that based on the role – it’s a very important role in Metro. And secondly, we had received advice that Ms Totino would never be returning to the railway industry.
…
Mr Millar:You decided that there was an easier way to terminate her employment, which was to base it upon her incapacity for work?
Mr Wegert:I made the decision to do that based on the certificate saying that she would never return to the railway industry. And I secondly – I made the decision based on – the role that she was carrying out was very important to Metro and to be able to run the…operations. They were my two factors I made my decision on.
Accordingly, Mr Wegert’s evidence, which was not disturbed under cross-examination, is consistent with the reasons advanced in the Show Cause Letter and I accept it.
Ms Totino submits that it is not just the absence of the Advice Document that causes difficulty for Metro Trains in discharging the statutory presumption. It is uncontested that on 4 July 2022 Ms Totino lodged the Review Application. Ms Totino submits that this then prompted Mr Reidy to send an email to Ms Beluli in Human Resources on 6 July 2022 saying “This may change our intended actions re Penny”. It is uncontested that “this” refers to the Review Application. Ms Totino submits that the email draws a link between the Review Application and the “intended actions” regarding Ms Totino. The evidence before the Court is that on 7 July 2022 Mr Reidy prepared a draft letter and provided it to Ms Lyons, Head of Health & Wellbeing, Safety and People, which she amended and returned to Mr Reidy that day. It is uncontested that draft letter formed the basis for the Show Cause Letter. Ms Totino submits that the exercise by her of workplace rights in seeking review of the refusal of her WorkCover claim closely followed by the Show Cause Letter “is a sound starting point in establishing a link between those events” and that the link becomes “even clearer when one adds Mr Reidy’s emails, which strongly suggest that Metro reacted to Ms Totino’s workcover review with a potential change to their intended actions”. Further, Ms Totino submits that Mr Reidy’s role was central to the termination of Ms Totino’s employment and Metro Trains failure to call him is of significance and not cured by Mr Wegert giving evidence. I reject those submissions. Firstly, it is inconsistent with the chronology of events as established by Mr Wegert and Ms Thomas’ evidence, which I have accepted and the email exchange between Mr Wegert and Mr Reidy on 22 and 23 June 2022 (Exhibit R4). That evidence establishes that the decision to move to the Show Cause Letter and potential termination was made on 27 June 2022. The intention to move to termination was therefore formed well before the Review Application was lodged. Secondly, under cross-examination the following exchange occurred between Counsel for Ms Totino and Mr Wegert:
Mr Millar:You don’t recall. And you were aware, though, that there were significant consequences as a result of that independent review being sought. You would agree with that?
Mr Wegert: No.
Mr Millar:Well, Ms Totino might manage to be successful in the review. Her claim for worker’s compensation might be ongoing, and that would cause problems in terminating her employment. What do you say to that?
Mr Wegert:My decision as based around advice that we had received, and we needed to act on that based on the role – it’s a very important role in Metro. And secondly, we had received advice that Ms Totino would never be returning to the railway industry.
Mr Millar:Okay. I’m…?
Mr Wegert:And that’s what I based my decision on.
Mr Millar:Yes. I wasn’t asking you what you based your decision on. I’m asking you – and we don’t need the screenshare – what – what I’m asking you is you were aware that this was a profound change in circumstances that a review was being sought, so there was new life in Ms Totino’s worker’s compensation claim. What do you say to that?
Mr Wegert:I don’t know how to answer that, but it –
Mr Millar:– because I can answer it – And you knew that, if Metro didn’t move quickly, and she was successful in her review, you might be stuck with having to keep her job open for 12 months. You knew that?
Mr Wegert:That’s incorrect.
Mr Millar:Which part is incorrect?
Mr Wegert:Your whole statement.
Mr Millar:Well, the statement about the analysis of the obligations if her claim was successful, or are you saying you didn’t know about that?
Mr Wegert:It wasn’t based – my decision wasn’t based on that either.
Mr Millar:No, I wasn’t asking you what your decision was based on. I’m simply asking you whether you were aware of the possible complications that would arise?
Mr Wegert:No
Mr Millar:You weren’t aware?
Mr Wegert:No.

Thirdly, neither Mr Reidy nor Ms Lyons were the relevant decision makers. They were advisers. I do not consider it correct to state that Mr Reidy’s role in Ms Totino’s termination was central or that the failure to call him is of significance in circumstance where his role was the provision of legal advice and the decision makers were called. As Mortimer J, as she then was, said in Ryan v Primesafe (2015) 323 ALR 107 at [81]: “...It is difficult to see how a lawyer, acting in accordance with her or his professional obligations, could be said to be “involved” in a contravention of the general protections provisions of the Fair Work Act. It is likely there would need to be some conduct outside the lawyer’s professional role, or which constituted a breach of the lawyer’s ethical or professional obligations in giving advice and acting on behalf of a client, before such a finding could be made”. Metro Trains called the relevant decision-makers. Mr Reidy provided advice in his capacity as a lawyer. He was not involved in the decision-making process. I accept the Respondent’s submission that in those circumstances the only assistance Mr Reidy could have offered to the Court is to the effect that he witnessed Metro Trains’ decision-makers come to the decision they did after he provided legal advice. Metro Trains did not call Mr Reidy to give evidence of what he witnessed because one of the decision-makers, Mr Wegert, was made available for cross-examination. In those circumstances, there was nothing left for Mr Reidy to explain. As to reliance by Ms Totino on Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 (and authorities which have followed it) for the above reasons I consider that reliance to be misconceived and as such reject the submission that the Court ought draw a Jones v Dunkel (1959) 101 CLR 298 inference that the evidence of Mr Reidy would not have assisted Metro Trains.
Accordingly, even if contrary to the findings above, the Show Cause Letter does constitute adverse action for the purposes of s 342(1)(d) of the FW Act, I find that the reasons for the Show Cause Letter were because Ms Totino had been absent from the workplace for a period of three months and had no capacity to return to work at Metro Trains at all or the rail industry in Victoria more generally and the role of Manager of Central Group was critical to Metro Trains business. None of the workplace rights asserted by Ms Totino were a substantial or operative reason for the issuing of the Show Cause Letter.
THIRD ADVERSE ACTION CLAIM – TERMINATION
Ms Totino submits that by dismissing her from her employment, Metro Trains took adverse action against her.
Dismissal of an employee is expressly stated to be a form of adverse action under s 342(1) of the FW Act. Metro Trains does not dispute that by terminating her employment, Metro Trains took adverse action against Ms Totino.
Ms Totino asserts adverse action was taken due to her exercising the following workplace rights:
(a)the First Complaint;
(b)the Second Complaint;
(c)the Third Complaint;
(d)the Fourth Complaint;
(e)the Compensation Claim;
(f)the Conciliation Request;
(g)the Review Application; and
(h)the Fifth Complaint.
As noted above, Metro Trains deny that the Termination was taken because Ms Totino exercised or proposed to exercise any of the workplace rights asserted by her.
Did Ms Totino exercise workplace rights?
Metro Trains concedes that Ms Totino exercised a workplace right by making the Second, Third and Fourth Complaints. As set out above, it disputes that the First and Fifth Complaints were the exercise of a workplace right by Ms Totino. I do not understand Metro Trains to contest that the Compensation Claim, the Conciliation Request nor the Review Application were the exercise of a workplace right by Ms Totino. For the reasons that follow it is not necessary that I determine whether the First and the Fifth Complaints were the exercise of a workplace right by Ms Totino.
Was adverse action taken because of the exercise of workplace rights?
It is uncontested that on 12 July 2022 Ms Totino responded to the Show Cause Letter by email to Mr Wegert. It is also uncontested that in that response Ms Totino disputed Metro Trains proposing to terminate her employment and said, amongst other things:
It is particularly unfair for Metro to propose to terminate my employment when, if my internal review is successful, I will be protected from dismissal for 12 months. At minimum, Metro should be awaiting final resolution of my workers compensation claims prior to terminating me.
Ms Totino places primary reliance on this response.
Mr Wegert’s affidavit evidence is that on about 12 or 13 July he spoke to Mr Reidy and Ms Thomas about Ms Totino’s response. Mr Wegert’s evidence is that he confirmed with Mr Reidy that he had decided to terminate Ms Totino’s employment. His evidence was that this was due to the fact that Ms Totino had been absent for an extended period of time and had not provided Metro Trains with any medical information suggesting that she had capacity to return to work in the near future. His further evidence was that the need for someone to be in Ms Totino’s role on a permanent basis drove his decision making and that there were no other considerations for the decision to terminate Ms Totino's employment.
Under cross-examination Mr Wegert’s evidence was to the same effect. The following exchange occurred between Counsel for Ms Totino and Mr Wegert:
Mr Millar:       You knew that she would question every step that you took and argue the issue, as she had with the complaints that she had made dating back to 1 March. Do you agree with that?
Mr Wegert:     No. Not really.
Mr Millar:       You decided that there was an easier way to terminate her employment, which was to base it upon her incapacity for work?
Mr Wegert:I made the decision to do that based on the certificate saying that she would never return to the railway industry. And I secondly – I made the decision based on – the role that she was carrying out was very important to Metro to be able to run the…operations. They were my two factors I made my decisions on.
Under cross-examination Mr Wegert denied that he decided to terminate Ms Totino’s employment because she made complaints or because she made the Review Application. His evidence was as follows:
Mr Millar:       Okay. So what I’m simply formally putting to you is the fact that Ms Totino had taken complaints in relation to her employment was one of the reasons for the termination of her employment. What do you say to that?
Mr Wegert:     No. That’s – that’s incorrect.
Mr Millar:       And the fact that she had initiated a WorkCover review or a review of the rejection of her workers compensation claim was also a reason for pushing the employer into action to terminate employment; what do you say to that?
Mr Wegert:     No. That’s – no. That’s incorrect.
Mr Duvel’s affidavit evidence is that he discussed Ms Totino’s response of 12 July 2022 with Mr Reidy and formed the view that it was appropriate to terminate Ms Totino’s employment. His affidavit evidence as to this was as follows:
I formed the view that it was appropriate to terminate Ms Totino’s employment with Metro solely because of her medical incapacity. In making this decision, I had regard to the length of time Ms Totino had been absent with no capacity and the fact that Metro had not received any medical information indicating that she would be able to return to work at any stage in the immediate future (despite providing Ms Totino with the opportunity to provide any information to the business). I also had regard to the fact that Ms Totino was employed in a senior leadership role within Metro that oversaw a critical passenger facing division of the business. I considered that Metro needed an employee engaged on a permanent basis to fill this role to ensure that all operational requirements for the business for the business were met to the best possible extent. I otherwise did not have regard to any other factors in making my decision to terminate Ms Totino’s employment with Metro.
That evidence was not challenged in cross-examination. Further, under cross-examination Mr Duvel denied that the reasons for his decision to terminate Ms Totino employment were because she made complaints or that she had made the Review Application.
On 18 July 2022 Metro Trains terminated Ms Totino’s employment. The termination letter records that the reasons for proposing to terminate Ms Totino’s employment were two-fold, as follows: (i) [Ms Totino’s] incapacity for work with MTM; and (ii) the need of MTM to fill [Ms Totino’s] position on a permanent basis.”
The termination letter also addresses Ms Totino’s assertion that her employment is being terminated because she has exercised workplace rights, saying:
MTM is not acting because of you exercising a workplace right. Our 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.
For the following reasons, I accept Mr Duvel and Mr Wegert’s evidence as to the reasons for Ms Totino’s termination of employment and find that none of the workplace rights said to have been exercised by Ms Totino were a substantial or operative reason for the termination of Ms Totino’s employment.
Firstly, Mr Duvel and Mr Wegert’s evidence was direct and unequivocal. They were asked directly and explicitly whether or not their reasoning was because of Ms Totino’s complaints or the Review Application and both categorically and directly denied this. Cross-examination failed to impeach either of their evidence. Secondly, their evidence is consistent with the other evidence before the Court, including the Show Cause Letter and the contents of the termination letter and the chronology of events which, I have earlier found, establishes that the proposal to terminate Ms Totino’s employment was formed on 27 June 2022. I have earlier addressed Ms Totino's submissions in relation to Mr Reidy’s role and the legal advice given by him, together with the asserted failure to call him as a witness. Thirdly, Ms Totino’s own evidence is that her role was a senior leadership position that required the exercise of a significant degree of responsibility, judgment and the management of others. In cross-examination she agreed that her role at Metro Trains was complex and important. This is consistent with Mr Wegert and Mr Duvel’s evidence that it was critical that Ms Totino’s role was filled on a permanent basis. Fourthly, Mr Duvel and Mr Wegert had before them evidence from Ms Totino’s treating medical practitioner that it would not be possible for Ms Totino to return to work at Metro Trains in any capacity nor within the rail industry in Victoria.
Ms Totino submits that there are “at least four other factors that support the contention that Metro Trains has not discharged its onus”.
Firstly, Ms Totino submits that Metro Trains pursued her termination with haste and without following the Procedure. I reject that submission. Clause 1 of the Procedure, under the heading “Purpose”, provides as follows:
To reiterate the standards expected of Metro employees in respect of their conduct and ensure all disciplinary issues that may arise are dealt within a fair and consistent manner.
Clause 2, under the heading “Scope” provides as follows:
This policy provides the framework which will be applied if a complaint is made about your conduct or if allegations are made against you which require investigation.
It also sets out some of the requirements and expectations of the way in which you must cooperate with any investigation into complaints made about you.
The Procedure therefore applies to conduct and disciplinary matters. It does not apply to terminations based on medical incapacity. Further, Ms Totino was absent from the workplace due to medical incapacity from 28 February 2022 and her employment was terminated almost five months later on 18 July 2022. In those circumstances I do not consider that it can be said that Metro Trains pursued the termination of Ms Totino’s employment with haste.
Secondly, Ms Totino submits that Metro Trains opportunistically moved to terminate her employment to avoid any adverse consequence that might arise from the Review Application. This submission has already been advanced earlier. I reject it. Mr Wegert determined to commence the show cause process on 27 June 2022, prior to the Review Application being made.
Thirdly, Ms Totino submits that Metro Trains was pursuing disciplinary action against her based on a series of “low-level allegations” and that pursuing the “WorkCover route” was an easier path to termination than pursuing disciplinary action. Ms Totino submits that by adopting the “WorkCover route” it must surely follow that Metro Trains was taking action at least in part because Ms Totino had exercised her workplace right to bring a WorkCover claim. I reject those submissions and consider them to be misconceived. At issue is whether Metro Trains took adverse action against Ms Totino because of the exercise of workplace rights. I accept Metro Trains submission that characterising the allegations made against Ms Totino as low level does not take the assessment of the reasons for Metro Trains actions anywhere and that there is nothing to suggest that the level of the allegations affected the conduct of Metro Trains investigation nor its decision making along the way. Further, I do not consider that it is accurate to describe the nature of the allegations as “low level”, noting that allegations were made by five employees nor to describe the basis for the termination of Ms Totino’s employment as the “WorkCover route”. Ms Totino’s WorkCover claim had been rejected at that time the decision was made to proceed to the show cause process. The information provided by Ms Totino’s treating medical practitioner was that she could not return to work at Metro Trains in any capacity nor within the rail industry in Victoria.
Fourthly, Ms Totino submits that it is “inherently improbable that Metro chose to terminate the employment of a senior executive on the basis of the proffered reasons for dismissal, effectively seizing upon a single untested line in a medical report from Dr Everitt”. I also reject that submission. I find nothing inherently improbable in the reasons asserted by Metro Trains for Ms Totino’s dismissal. Ms Totino held a senior leadership role, which was complex, diverse and important. On her own evidence she was responsible for people management within the Central Group, with eight direct reports who were Depot Train Driver Managers and approximately 500 train drivers who reported to the Depot Train Driver Managers. Her role involved analysing delays and customer complaints. She dealt with staff, unions, health and safety representatives, undertook safety briefings and had a substantial reporting and administrative workload. She was accountable for delivering programs of work to improve safety, performance and culture. Ms Totino had been absent and her role unfilled for a period of almost five months at that time of her termination. Further, the medical advice from Ms Totino’s treating practitioner was that she that she would not return to work at Metro Trains in any capacity nor within the rail industry in Victoria.
Accordingly, contrary to Ms Totino’s submissions, I find that Metro Trains has discharged its onus and that the exercise of workplace rights by Ms Totino was not a substantive or operative reason for the termination of her employment.
BREACH OF STATUTORY DUTY
Ms Totino submits that a medical report dated 21 April 2022 of her treating general practitioner, Dr Everitt (Medical Report), was obtained under or pursuant to the WIRC Act. She submits that this Medical Report was used when deciding to dismiss her from her employment. She submits that the Termination was not a decision in the management of the Compensation Claim, but a separate decision separate to that process. She claims that Metro Trains breached a statutory duty in s 588 of the WIRC Act by using the Medical Report to terminate her employment.
Ms Totino did not identify any case law to support her submission that s 588 of the WIRC Act creates a tortious cause of action.
Metro Trains submits that:
(a)the construction of s 588 of the WIRC Act does not create a tortious cause of action;
(b)the Medical Report was not obtained “under or pursuant to” the WIRC Act; and
(c)Ms Totino has not suffered damage caused by the use of the Medical Report in the Termination.
Does s 588 create a tortious cause of action?
Section 588 of the WIRC Act provides 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.
In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (Byrne) at [16] Brennan CJ, Dawson and Toohey JJ said:
A cause of action for damages for breach of statutory duty arises where 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. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v SP Bray Ltd, an examination of the statute "will rarely yield a necessary implication positively giving a civil remedy”.
The constituent elements of an action that may be extracted from the statement of principle in Byrne, were identified in Jane Doe v Fairfax Media Publications Pty Limited & Anor [2018] NSWSC 1996 (Doe 2018) as follows:
(a)a statutory duty is imposed on the defendant;
(b)a legislative intention that the statute imposing the duty confers a private civil cause of action for breach of that duty;
(c)the plaintiff is within the class of persons for whose benefit the duty was imposed;
(d)breach of the duty; and
(e)damage caused by the breach of the duty of a kind which the duty was designed to prevent.
I do not understand the correctness of the above principles to be contested and I respectfully adopt them. Other than in respect of (c) above, Metro Trains contests that the elements of the cause of action alleged by Ms Totino are satisfied.
Although contested, I am satisfied that s 588 imposes a statutory duty. However, for the following reasons I do not consider that on a proper construction the legislature intended that s 588 of the WIRC Act gives rise to a tortious cause of action and a private right to sue.
Firstly, s 588 does not provide that damages are available for its breach. I accept Metro Trains’ submission that in the context of a statute principally directed to the provision of compensation and damages to workers, the absence of such a provision is of significance.
Secondly, and in my view a compelling factor that a tortious cause of action ought not be inferred, is the express provision of a mechanism for enforcement of breach of the statutory duty, by the provision of a penal sanction for breach of s 588. The footer of s 588 provides as follows: “Penalty: 60 penalty units.” Section 111 of the Sentencing Act1991 (Vic) provides as follows:
Location and effect of penalty provisions
A penalty set out at the foot of a provision of an Act, subordinate instrument or local law must, unless the context otherwise requires, be construed as indicating that a contravention (whether by act or omissions) of the provision is an offence against the Act, subordinate instrument or local law punishable on a finding of guilt (with or without recording a conviction as required by section 7) by a penalty not exceeding that set out.

I consider this evinces an intention on behalf of the legislature that any breach of s 588 is to be enforced criminally on the finding of guilt, rather than through a private right, noting the difference in the standard of proof required for these respective actions. While an express method of enforcement, even to the extent of providing a penal sanction, does not necessarily preclude a private right to sue arising, the authorities indicate that the existence of enforcement procedures is considered to be of particular significance.
In Sovar v Henry Lane Pty Ltd [1967] HCA 21 at 405 Kitto J said:
A particular difficulty arises where the enactment which prescribes the conduct is accompanied by the express provision of a criminal sanction for the enforcement of its requirements. On the prima facie principle that expressio unius est exclusion alterius there is ground for a countervailing inference of an intention that in the event of a contravention the specifically provided remedy shall be the only remedy.
In Bryne at [461] the High Court said:
The existence of rights conferred by the legislation to recover payments due under awards and the power of the court to order payment of penalties tend against the proposition that, from the nature, scope and terms of the legislation, there arises the further inference that damages are recoverable.
In Gardiner v State of Victoria [1999] VSCA 100 at [25] the Court noted:
Another factor which is sometimes helpful is the existence or not of other remedy. As I have stated, a penal sanction will commonly be found attached to the legislative prescription, and prima facie that excludes the implication of additional civil liability. But if there is no such penalty or other remedy for breach of the statutory duty, or if the penalty which is fixed is considered inadequate (as in Groves v Lord Wimborne [1898] 2 Q.B. 402), that can point towards the individual's right to sue for breach. A modern example of this may be found in Owen v Shire of Kojonup [1965] W.A.R. 3, where the Court had to consider a statutory provision requiring local authorities to take out insurance for personal injuries sustained by voluntary fire fighters while fighting bush fires. It was held by Hale, J., and the Full Court accepted, that the plaintiff who was injured in such circumstances could sue the local authority for damages for not insuring him as required. In the course of his judgment, Hale, J. said, at 5:
“... it is doubtless correct that the public are interested in having men willing to take risks in fire fighting, but this interest could be advanced by s.37 requiring the insurance] only if the section confers some effective remedy on a man who is injured in such circumstances, and in that regard the possible penalty of £50 for default prescribed by s.58 would be nugatory."
Given the obvious purpose of the section to ensure that fire fighters could have recourse to insurance if injured, the lack of a significant penalty for non-compliance with the statutory requirement led the Court to conclude that civil liability was intended also. On the other hand, the existence of a complex or elaborate administrative structure to monitor compliance with the statute may point the other way: Balkin and Davis. In Bryne at 461, 425-6, the existence of alternative enforcement procedures was regarded as very important.
The significance of the existence of enforcement procedures were also emphasised by Wood CJ at CL in Preston v Star City Pty Ltd [1999] NSWSC 1273 and in McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297.
Thirdly, as submitted by Metro Trains, the legislature has set out in the WIRC Act an exhaustive regulatory procedure for the enforcement of s 588 (and other offences in Div 8 of Pt 13) within the criminal jurisdiction. Section 608(1) provides that offences are tried by filing a charge sheet, which in turn triggers the procedure set down by the Criminal Procedure Act 2009 (Vic). Section 608(1) and (3) confer standing to do so on the Authority. Section 608(2) proscribes the form of evidence in such a prosecution, and s 608(6) requires the Authority to establish prosecutorial guidelines.
In light of the above, applying the principles of statutory construction and with reference to the authorities referred to, I do not consider that s 588 of the WIRC Act gives rise to a tortious cause of action where the statutory duty not to use information obtained under or pursuant to, relevantly, the WIRC Act, is breached. In my view there is nothing in s 588 or the WIRC Act, which supports such a view. I consider that the only remedy the legislature intended to provide when s 588 is breached is the imposition of a criminal sanction.
Finally and for completeness, I reject Ms Totino’s submissions in relation to, and reliance upon, Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281 (Doe 2007). Doe 2007 was also sought to be relied upon by the plaintiff in Doe 2018. In Doe 2018 the plaintiff alleged the disclosure of or breach of a statutory duty said to be conferred by s 578A of the Crimes Act 1900 (NSW), by the publication of two articles in the Sydney Morning Herald and on the website associated with that newspaper on 17 and 18 June 2016. The plaintiff contended that Hampel J’s decision in Doe 2007 reflected an orthodox application of the principles of statutory construction to an analogous legislative provision in Victoria. The defendants submitted that Hampel J in Doe 2007 did not engage with the construction of s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) in any meaningful way and that her finding that a private right to sue is conferred by implication lacks persuasive force for that reason.
In concluding that s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) did confer on the plaintiff a private right to sue for damages, Hampel J reasoned as follows at [72] of Doe 2007:
The principles governing the private right of action in respect of a breach of statutory duty, were articulated by Kitto J in Sovar v Henry Lane Pty Ltd:
“…
A particular difficulty arises where the enactment which prescribes the conduct is accompanied by the express provision of a criminal sanction for the enforcement of its requirements. On the prima facie principle that expressio unius est exclusion alterius there is ground for a countervailing inference of an intention that in the event of a contravention the specifically provided remedy shall be the only remedy.”
The question whether the presumption in favour of a private right to sue for damages is displaced by the imposition of criminal sanctions (such as those imposed by the Judicial Proceedings Reports Act) was answered in favour of the existence of a private right to sue in Byrne v Australian Airlines. There, Brennan CJ, Dawson and Toohey JJ said:
“A cause of action for damages for breach of statutory duty arises where 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.”
In my view, s.4(1A) is a provision which imposes an obligation for the protection or benefit of a particular class of persons, namely victims of sexual offences. If the obligation not to publish is breached, and a victim is identified, and suffers injury, loss or damage as a result of being wrongfully identified, such injury or damage is capable of being characterised as “of a kind against which the statute was designed to afford protection”. It follows that the Byrne v Australian Airlines reasoning would give rise to a cause of action for breach of statutory duty to a victim of a sexual offence who suffers injury loss or damage as a result.
…
It follows, in my view, that applying the principles set out in the passages I have quoted, the purpose of section s.4(1A) is to impose an obligation for the protection or benefit of the class of persons there referred to, namely victims of sexual offences, and as a consequence, a person in Jane Doe’s position has a personal right to the due observance of s.4(1A), and a personal right to sue for damages if injured by a contravention of that right.
In Doe 2018 the defendants submitted that her Honour appears to have reasoned as follows: (a) the legislation imposes a statutory duty; (b) the duty operates for the benefit of a particular class of people (including the plaintiff); (c) the duty was breached; and (d) that breach led to the plaintiff’s identification, consequent upon which she suffered harm.
In response to that submission Fullerton J in Doe 2018 said at [137]:
While the failure to make express reference to the need to consider the issue of a legislative intent to confer a private right to sue in the context of the legislation generally, including the “probability or improbability” or the “convenience or inconvenience” of the legislature intending to impose a civil liability for damages (the informed approach to the question in Martin v Western District of the Australasian Coal and Shale Employees’ Federation Workers’ Industrial Union of Australia (Mining Dept) extracted at [113] above) might not, of itself, have altered the conclusion her Honour reached, in the absence of a detailed consideration of the question of statutory construction, and the competing considerations to which that question gives rise, and having regard to the particular statutory context in which the issue arose under the Victorian legislation where s 4 of the Wrongs Act 1958 (Vic) was implicated (an Act similar in operation to the Civil Liability Act 2002 (NSW)), I do not regard Jane Doe v ABC as carrying the persuasive force for which the plaintiff contends.
I respectfully adopt her Honour’s view. Doe 2007 is of no assistance to Ms Totino.
Should I be wrong, and contrary to my conclusion above, s 588 does give rise to a private right to sue for damages, I consider whether Metro Trains breached its statutory duty.
Was the Medical Report obtained under or pursuant to the WIRC Act?
The evidence before the Court is that Ms Totino’s Compensation Claim was rejected by the insurer on 11 April 2022. On 13 April 2022 Ms Totino filed the Conciliation Request with the ACCS in relation to the rejection of her claim. Ms Totino’s evidence is that on 21 April 2022, her treating physician, Dr Everitt provided a medical report which was provided to the ACCS “as part of her workers compensation claim”.
The Medical Report was provided following Ms Totino signing an authority to release medical information form. That form is headed “Request for medical report form – WIRCA section 75” and provides that the report is “in order to assist Penny Totino with their Conciliation”. Ms Totino submits that in these circumstances the Medical Report can only be viewed as containing information obtained under or pursuant to the WIRC Act. I reject that submission.
The ACCS is established as a separate body under Part 12 of the WIRC Act. Relevantly, pursuant to s 522 of the WIRC Act the functions of the ACCS are to provide independent conciliation services for the purposes of the WIRC Act. The powers of the ACCS are set out in s 523 and relevantly provide that the ACCS has power to do all things necessary or convenient in connection with, or as incidental to, the performance of its functions. There is no specific power for the ACCS to require or request a medical report for the purposes of conducting a conciliation. Accordingly, I do not consider that it can be said that the Medical Report was obtained under or pursuant to the WIRC Act. Further, s 75 of the WIRC Act, as in force at the relevant time provided as follows:
75       Responsibilities of self-insurers and the Authority
(1)       If the Authority or a self-insurer does not give written notice of a decision to      accept or reject a claim for compensation in the form of weekly payments –
(a)       if the claim was accompanied by a medical certificate in accordance      with section 25, within 28 days after receiving the claim; or
(b)       if the claim was not accompanied by a medical certificate in      accordance with section 25, within 28 days after receiving         such a medical certificate—
the claim is deemed to have been accepted and the Authority or self insurer must pay compensation in the form of weekly payments to the worker subject to and in accordance with this Act or the Accident Compensation Act 1985.
(2) The Authority or a self-insurer must give written notice of a decision to accept or reject a claim for compensation for medical or like services under Division 7 of Part 5 of this Act or Division 2B of Part IV of the Accident Compensation Act 1985 within 28 days after receiving the claim.
(3) The written notice of a decision to accept or reject a claim for compensation in the form of weekly payments or for compensation for medical or like services under Division 7 of Part 5 or Division 2B of Part IV of the Accident Compensation Act 1985 must, in the case of a decision to reject the claim, include a statement of the reasons for the decision.
(4)      If –
(a)       a worker notifies the Authority of a claim given to or served on the        employer under section 21(2); and
(b)       the Authority receives from the employer, within the period       referred to in section 73(1), the claim and the relevant medical         certificate in accordance with section 25, and does not give    notice of a decision to accept or reject the claim within 28 days after the Authority receives the claim and medical         certificate—
the claim is deemed to have been accepted by the Authority and the Authority must pay compensation in the form of weekly payments to the worker, subject to and in accordance with this Act or the Accident Compensation Act 1985.
(5)      If –
(a)       a worker notifies the Authority of a claim given to or served on the       employer under section 21(2) that is accompanied by a      medical          certificate in accordance with section 25; and
(b)       the Authority does not receive the claim from the employer        within the period referred to in section 73(1); and
(c)       the Authority does not give notice of a decision to accept or       reject the claim within 39 days after the Authority receives      notice of the claim—
the claim is deemed to have been accepted by the Authority and the Authority must pay compensation in the form of weekly payments to the worker, subject to and in accordance with this Act or the Accident Compensation Act 1985.
(6)      If the Authority receives a claim in accordance with section 20(2) (not    being a claim that has been rejected under this section) for      compensation in the form of weekly payments that is accompanied by the      relevant medical certificate in accordance with section 25 from the           employer more than 28 days after the expiry of the period of 10 days      referred to in section 73(1)—
(a)       the claim is deemed to have been accepted; and
(b) the Authority must pay compensation in the form of weekly payments to the worker, subject to and in accordance with this Act or the Accident Compensation Act 1985.
(7)      A decision or deemed decision under this section is binding on the         employer in respect of the employer's liability under the employer's      excess.
(8)      If subsection (6) applies—
(a)       a deemed decision under that subsection is binding on the         employer;
(b)       the employer is liable for all weekly payments made to the         worker by the Authority after—
(i)        the day on which the claim was given to or served on the          employer; or
(ii)       if the claim was not accompanied by a medical certificate        in accordance with section 25, the day on which the     certificate is given to the employer—
whichever is the later, until the day on which the claim and the medical certificate have been received by the Authority      from the         employer.
There is, therefore, nothing in the language of s 75 of the WIRC Act which supports an argument that the Medical Report was produced under or pursuant to that section.
Accordingly, I do not consider that Metro Trains breached the statutory duty contained in s 588 of the WIRC Act, should one be found to exist.
Having concluded that s 588 does not give rise to a private right to sue for breach of the duty imposed and further, if such a right does arise, Metro Trains did not breach the duty, it is not necessary that I consider the question of damage and loss.
DISPOSITION
In light of the above findings, the application must be dismissed.

I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.
Associate:
Dated: 11 December 2024

File number(s):	MLG 2358 of 2022
Judgment of:	JUDGE J YOUNG
Date of judgment:	11 December 2024
Catchwords:	INDUSTRIAL LAW – general protections – whether adverse action taken against applicant – whether refusal to provide allegations details to the applicant constitutes adverse action – found refusal to provide details of the allegations does not constitute adverse action – whether the refusal to provide allegations details was because the applicant exercised a workplace right – found exercise of workplace rights were not operative reason for refusal to provide allegation details – whether a show cause letter constituted a threat to dismiss the applicant – found show cause letter does not convey a threat and accordingly does not constitute adverse action – reverse onus discharged by employer in relation to all three instances of adverse action – whether the respondent breached s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 by using a medical report to decide termination– found no tortious cause of action or breach of statutory duty – application dismissed.
Legislation:	Fair Work Act 2009 (Cth) ss 88, 96, 340, 341, 342(1), 342(2), 351, 360, 361 Criminal Procedure Act 2009 (Vic) Judicial Proceedings Reports Act 1958 (Vic) s 4(1A) Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 40(1), 75, 522, 523, 588, 608(1) – (3), 608(6) Sentencing Act1991 (Vic) s 111 Counselling and Disciplinary Procedure cll 1, 2, 3.4
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 Doe v Australian Broadcasting Corporation & Ors [2007] VCC 281 Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 Fair Work Ombudsman v Australian Workers Union and Davis [2017] FCA 528 Gardiner v State of Victoria [1999] VSCA 100 Jane Doe v Fairfax Media Publications Pty Limited & Anor [2018] NSWSC 1996 Jones v Dunkel (1959) 101 CLR 298 McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297 Messenger v Commonwealth [2022] FCA 677 Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) (2019) FCA 1754 Preston v Star City Pty Ltd [1999] NSWSC 1273 Ryan v Primesafe (2015) 323 ALR 107 Sayed v CFMEU [2015] FCA 27 Sovar v Henry Lane Pty Ltd [1967] HCA 21
Division:	Division 2 General Federal Law
Number of paragraphs:	139
Date of last submission/s:	9 April 2024
Date of hearing:	12 & 13 February 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Millar
Solicitor for the Applicant:	Forty Four Degrees Lawyers And Consultants
Counsel for the Respondent:	Mr Howard
Solicitor for the Respondent:	Herbert Smith Freehills

MLG 2358 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PENELOPE JANE TOTINO Applicant
AND:	METRO TRAINS MELBOURNE PTY LTD Respondent

ORDER MADE BY:	JUDGE J YOUNG
DATE OF ORDER:	11 DECEMBER 2024