Who signs the termination letter matters – the importance of the decision-maker

If you have recently dismissed an employee who has raised complaints in the workplace or made a workers compensation claim, you may soon find yourself dealing with a general protections claim under the Fair Work Act 2009 (Act).

Unlike defending an unfair dismissal, the burden of proof falls on the employer, to prove that none of those complaints or the workers compensation claim, played a part in the dismissal.

The Full Federal Court’s decision in Totino v Metro Trains Melbourne Pty Ltd [2026] FCAFC 120 has recently shown how employers can effectively discharge that burden in practice, and why the single most important question is often who made the decision.

The practical lesson is clear: nominate the genuine decision-maker, ensure they independently assess the evidence, and document their reasons. An adviser may prepare material and provide recommendations, but the decision-maker must not merely adopt that work without forming their own view.

What happened?

Ms Totino held a senior leadership role at Metro Trains, overseeing managers responsible for around 500 train drivers. After bullying complaints from staff who reported to her, she was stood down in February 2022. Shortly after this, Ms Totino lodged a workers compensation claim supported by a certificate describing a severe psychological injury.

Over the following months, she made a series of complaints and demands to Metro Trains.

In July 2022, Metro Trains sent her a show cause letter stating that on the medical evidence, she would not return to work due to medical incapacity and for that reason and because of the operational need to fill her role permanently, it was proposing to terminate her employment.

As an effective show cause letter should do, it invited her to respond before any final decision. A week later, after considering her response, Metro Trains terminated her employment.

Ms Totino alleged that both the show cause letter and the dismissal were adverse action taken because she had exercised workplace rights. She also claimed damages for misuse of her medical information under Victorian workers compensation legislation. She was unsuccessful at first instance and the Full Federal Court dismissed her appeal.

What the Court decided

The reverse onus was discharged because the decision-makers gave evidence

Under the Act, once an employee points to a workplace right (such as making complaints), the employer is presumed to have acted for that prohibited reason unless the employer proves otherwise. The question is whether a prohibited reason was a "substantial or operative" reason for the action. Metro Trains discharged that reverse onus because the relevant decision-makers gave evidence about the reasons for their decisions, and that evidence was accepted.

An adviser’s state of mind did not need to be put in evidence

Ms Totino's central argument was that a workplace relations officer, Mr Reidy, had played a sufficiently significant role in the process because he:

• drafted the correspondence; and

• had written an email suggesting her compensation review "may change our intended actions".

Despite that involvement, Mr Reidy was not called to give evidence explaining his own motivations.

The Court accepted that a corporation's reasons can include the state of mind of someone other than the formal decision-maker, where that person's contribution to the decision was "significant", "substantial" or "essential".

However, Mr Reidy was an adviser, not a decision-maker. The decision-makers formed their own views on the facts and did not simply adopt his recommendation. That distinguished the case from authorities such as Wong[1] and Kodak[2], where the nominated decision-maker effectively rubber-stamped the work of another.

A show cause letter is not a “threat”

The Court confirmed that "threatening" adverse action requires an intimidatory purpose. This involves using the prospect of dismissal to pressure an employee to do something they are not already required to do.

A letter that genuinely sets out a proposal, explains the reasons and invites a response before any decision is made is not a threat.

What this means for employers – tips for defensible decision making

• Identify a clear decision-maker and have them own the decision!

• Keep advisers to advising and not deciding

• The decision-maker should be engaged with the facts

If you are dealing with a general protections application or considering a dismissal involving workplace complaints or a workers compensation claim, contact our team for advice on establishing and documenting a defensible decision-making process.

Authors: Shawn Skyring & Jacob Ward

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.