Alleged bully claims employer’s letter was intimidation

Metro Trains Melbourne was not in the wrong when it fired a senior manager linked to allegations of bullying.

The full Federal Court dismissed an appeal brought by fired Metro Trains Melbourne employee, Penelope Totino, who alleged the public transport company had fired her for exercising a workplace right.

Justices Timothy McEvoy, Craig Dowling, and Graeme Hill upheld the Federal Circuit and Family Court of Australia’s (FCFCOA) December 2024 finding that Totino’s dismissal was instead due to her medical incapacity and Metro Trains’ operational requirements.

The dispute began when Totino, then a senior manager, was told by her boss she had been the subject of a number of alleged bullying complaints and would be stood down pending an investigation.

In response, the employee raised multiple complaints and submitted a failed workers’ compensation complaint, which set out she had been diagnosed with a “severe psychological injury” that caused her to be distressed and “unable to focus or concentrate”.

Totino also complained to the Accident Compensation and Conciliation Service for the restoration of her leave entitlements and the full details of the bullying allegations made against her.

Due to concerns she could not maintain her employment due to medical incapacity, a show-cause letter requested Totino’s response.

Totino alleged this threatened termination was an adverse action.

It was said that the intimidatory purpose was that the dismissal would occur if Totino failed to dissuade Metro Trains from doing so.

The FCFCOA and the Federal Court on appeal found the letter was not a threat and therefore could not be an adverse action.

The appeal also dismissed Totino’s claims that the FCFCOA erred in finding Metro Trains met its reverse onus of proof on the termination adverse action, and erred in dismissing her claim for a breach of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The court found that section 588 does not create a private right of action for damages as it is enforced through criminal penalties, and the proposed further evidence could not affect the outcome because all appeal grounds had been rejected or fell away.

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

Want to see more stories from trusted news sources?
Make HR Leader a preferred news source on Google.