The worker said a missing witness sank the employer’s case - the court saw it differently
A senior manager sacked while off work with a psychological injury has lost her Federal Court appeal against the dismissal.
On September 8, 2026, the Full Court of the Federal Court dismissed the appeal, leaving in place findings that Melbourne rail operator Metro Trains Melbourne let the worker go because she could not return to work and it needed her role filled permanently - not because she had exercised a workplace right.
The decision is worth HR’s attention because it tidies up three things that come up constantly: how the general-protections reverse onus actually works, when a show cause letter tips over into being a "threat," and whether medical information from a workers’ compensation claim can be turned into a damages case.
The worker had led a large operational group as a senior manager since October 2019, with about eight depot managers and roughly 500 train drivers under that structure. In late February 2022, colleagues raised complaints alleging bullying, and Metro Trains stood her down to look into them. Weeks later she lodged a workers’ compensation claim backed by a certificate diagnosing a "severe psychological injury." The insurer rejected the claim, and she challenged that decision.
With the compensation dispute still live, Metro Trains reviewed her employment after more than three months off. On July 11, 2022, it sent a show cause letter saying it was "proposing to terminate" her employment for medical incapacity and operational need, and asked for a response. She replied. On July 18, 2022, the company dismissed her "because of your incapacity to perform work for [Metro Trains] and the need for [Metro Trains] to fill your position on a permanent basis." The bullying complaints were not the stated reason for the dismissal.
The main fight was about proof. Under the Fair Work Act’s general protections - the part of the law that shields workplace rights - the burden flips once a worker points to such a right: the employer has to show the action was not taken for a banned reason. The worker argued Metro Trains could not meet that burden because it never called a key in-house workplace relations adviser - who had reviewed her employment and helped draft the letters - or handed over his written advice.
The court was not persuaded. Both people who actually made the call, a general manager and an executive director, gave evidence of their reasons and were cross-examined, and the trial judge had accepted those reasons as the only ones. The adviser was just that - an adviser. His advice was about whether the company could take that step, not about whether it should, so his state of mind did not need testing and his absence did not count against the company.
The worker’s second argument was that the show cause letter was already a "threat" to dismiss, which would make it adverse action - conduct the law treats as taken against an employee. The court rejected that. A threat, it held, needs an intimidatory purpose: dangling dismissal to push someone into doing something they are not already required to do. A letter that sets out the employer’s position, proposes termination and genuinely invites a reply is information, not a threat.
Her remaining live argument was that Metro Trains misused a medical report from her compensation claim to justify the dismissal, and owed her damages. The court held that the law she relied on bars unauthorised use of that kind of information and is backed by a criminal penalty, but does not give a person the right to sue for damages over it. A further ground, about updated evidence on her earnings, dropped away once the liability findings survived.
For HR, the lesson sits in how the file was built, not just in the decision itself. Metro Trains met its burden by putting the people who actually made the call up to explain their thinking, rather than every person who touched the matter. And its show cause letter held up because it read as a genuine invitation to respond, not an ultimatum.
