Conclusions
103 The decisions of the High Court in Barclay and CFMEU v BHP Coal, read with relevant provisions of the FW Act, provide guidance on the appropriate approach the Court should take in determining the reason or reasons that the adverse action was taken against Mr Whelan by the first respondent.
104 Ascertaining why, for the purposes of s 361(1) of the FW Act, an employer took adverse action against an employee involves determination of the "particular reason" of the decision-maker for taking that adverse action: Barclay at [42], [43], [45], [127]; CFMEU v BHP Coal at [9], [38]. Identification of the decision-maker is, accordingly, critical. I have already observed that the person who made the decision to dismiss Mr Whelan was Mr Beynon. I do not understand there to be any dispute about this point.
105 Section 360 of the FW Act provides that, for the purposes of that Part of the Act, a person takes action for a particular reason if the reasons for the action include that reason. If a substantial or operative reason for Mr Whelan's dismissal was his complaints or inquiries concerning payment of bonus, the first respondent has contravened the FW Act even if it was only one reason for the first respondent's actions: Barclay at [56], [57], [85], [88], [127]; CFMEU v BHP Coal at [85], [89], [90].
106 As I have already noted, Mr Beynon did not give evidence of why he decided to dismiss Mr Whelan. In light of my earlier findings that, as an objective fact, Mr Whelan exercised a workplace right and was then the subject of adverse action, s 361 of the FW Act operates such that the onus lies on the respondents to prove, on the balance of probabilities, that the relevant adverse action taken against Mr Whelan was not for his exercise of the workplace right (and therefore not in contravention of the FW Act). The absence of any evidence from Mr Beynon makes much more difficult the task of the Court in determining Mr Beynon's reason or reasons for dismissing Mr Whelan. However, while direct evidence of a decision-maker as to his or her state of mind, intent or purpose will bear upon the question of why adverse action was taken, the central question remains "why was the adverse action taken?": Barclay at [44], CFMEU v BHP Coal at [39]. The Court is required to determine the reason as a question of fact, which must be answered in the light of all the facts established in the proceeding: Barclay at [41], [45].
107 All relevant facts are identifiable by reference to the evidence before the Court. Examining that evidence, I am not satisfied that the respondents have discharged the onus of proving that Mr Whelan's exercise of a workplace right was not a substantive or operative reason for his dismissal. I take this view for the following reasons.
108 First, I have already found that Mr Whelan asked Mr Beynon about his entitlement to a bonus or the development of a bonus plan on multiple occasions prior to 24 August 2015. Mr Whelan specifically asked Mr Beynon about the development of a bonus plan pursuant to which a bonus would be paid to him on 24 August 2015, when adverse action was taken against Mr Whelan. Relevantly, I am also satisfied that, both prior to 24 August 2015 and on that date, Mr Beynon was angered by Mr Whelan's inquiries because he was concerned about the financial state of the first respondent, and because he considered that Mr Whelan did not deserve a bonus and should not be asking for one.
109 Mr Whelan gave undisputed evidence that Mr Beynon was angered by Mr Whelan raising the issue of bonuses in July 2015 around the time of the death of Mr Beynon's mother, and that Mr Beynon considered that Mr Whelan had been disrespectful to do so (transcript page 159 lines 25-27). I accept that this is plausible.
110 Turning to the transcript of the meeting of 24 August 2015, I note that Mr Whelan explained to Mr Beynon that he had acquired too many debts, was having difficulty paying them, and it was in that context that he had pressed Mr Beynon earlier in the year for a bonus and was continuing to press for a bonus plan to be developed. During the course of the meeting the following exchanges took place between Mr Beynon and Mr Whelan:
Beynon: So it's $850,000, but it wouldn't be anything more, so that might go up a couple of grand, but still, where's $93,000 gone?
Whelan: I don't know. As I said, I don't know. I've got all my spreadsheet of everything at home that we do on our expenses and everything.
Beynon: But where would it be? The point is, I don't...
Whelan: When we got the bonus last year, we had a holiday. We put money on our credit cards that we owed. We had to do some things around the house that needed fixing.
Beynon: So I understand the holiday. Credit card. If you put money off that, then that would be less. That's based on $30,000.
Whelan: Yes, it is.
(Meeting transcript page 9)
111 I also note the following:
Beynon: …Then I rang you and said whoa, what the fuck is going on? Because if you had come to me, I would have done this same thing. Let me help you. This is how I know. How else do you want me to help you? You're on $470,000, and if it's not that, it's $309,000 plus possible bonuses. Now, that's a fucking lot of money, and I fucking want to get to the bottom of it, because I need to know if you're capable of handling money, one, and two, are you going to pull the pin at some point because you're not going to get your shit worked out?
Or are you going to say I need the bonus of another $100,000 otherwise - so you're telling me you were getting $400,000 - $340,000 from Barda, because that's what you told me when we first met.
Whelan: Yes, it was, Travers.
Beynon: You said you got $230,000.
Whelan: $230,000 and bonuses, Travers, and on-costs.
Beynon: But you weren't going to get...
Whelan: Travers, everyone gets a bonus at Barda. You ask Jeff.
Beynon: That wasn't what they told me. Shannon and Jeff told me the other day, they didn't. I remember. There was a fucking uproar. People left because of it. You told me last time, last year, and that's why you were lucky you left, because people were so pissed at Barda because they haven't got their bonuses, where every other year they've got it. So what money problem would you have been in then, at $230,000? It would have been the same as you are in now, because you would have had $230,000 with a $500,000 loan. Now you're on $470,000 plus a car, so bring that back to $330,000, with an $800,000 loan. So it's the same thing. It's pineapples. So you're in no worse financial position. So you shouldn't be stressed.
Whelan: Okay. Okay, then, mate, okay.
(Meeting transcript pages 15-16)
112 Shortly afterwards in the discussion the following exchange occurred:
Whelan: I came to you because I wanted to talk about long-term financial goals with Freechoice. That's why I sent you the text, Travers, not about a bonus now, not about anything like that. To set a long-term plan. Would there be a bonus structure this year?
Beynon: No, no, this is where you've got to slow down. We're about the job at hand.
Whelan: I'm doing the job at hand, Trav.
Beynon: I have asked you for years now, for two years, to get vending under control. Even back to the day of Warren Henry, and you don't get that involved. I need vending ...
Whelan: I'm in there now, Travis.
Beynon: Yes, but it's not turning around. You said to me the last six weeks have been tough for me, and I know for you. I don't know how this fucking compares with losing your mother. You asked me to come to you on certain things affecting me at the moment and would like to take you up on it. What is that? Money issues, is that right? That's all it is? Is that all it is? Is that all it is, Andrew?
Whelan: Yes.
Beynon: Okay. So now you don't want to talk about it.
Whelan: I don't have the detail with me. You're asking me specifics about the detail and I don't have it with me, Travers. I'm sorry.
…
Beynon: Well, get the numbers, then, and explain to me where you need the bonus. What about the business?
Whelan: What do you mean?
Beynon: You need a bonus for you. What about the business?
Whelan: I'm not talking about this bonus. We've decided that. I'm asking if there's going to be a plan for one this year. Of course I'm going to ask that question.
Beynon: See, this is where you don't get it. You've got to get this cleaned up. You've got to explain to me this, and then you've got to start to get vending back on. You've got to prove to me that you're going to get the day-to-day stuff running, starting from right now. I don't know.
Where is it that the bonus is a - you will be broke if you don't get the bonus is how you told it to me. You rely on ...
Whelan: No, I never said that.
Beynon: You rely on the bonus to survive.
Whelan: I rely on the bonus to do what I want to do, correct, because I have in all the previous companies, Travers, over the last 10 years.
Beynon: I don't care what you've done in your previous companies ...
Whelan: Well, I do .
(Meeting transcript page 17)
113 The thread of discussion concerning bonuses culminated in Mr Beynon saying:
…So if you've got to concentrate on being here, making sure that everyone's doing their thing, and you've got to do vending, that's the perfect spot. That's the step. There are no promises for the future of bonuses and all that now. The only promise you have is - you never really ask - I never have, because I always knew I was always in control of the bonus. You don't ask for a bonus, you're given it. You take it by working to a point where you deserve it.
You're asking me to predict the future without even knowing the future about whether a bonus is going to be available. No. How you get something somewhere - so it's not even a question. If you want a fucking bonus, go and get a fucking bonus. Do you understand what I'm saying? It's not for me to decide. That's for you to decide. It really is. Prove yourself. Can you be the right-hand man? Let's see how tough you really are.
(Meeting transcript page 51)
114 To the extent that I can draw inferences from the meeting transcript, I consider that, in light of the repeated and extensive discussion during that meeting of Mr Whelan's financial position and Mr Whelan pressing for a bonus based on his previous employment, the issue of Mr Whelan asking for either a bonus or the development of a bonus plan was on Mr Beynon's mind on 24 August 2015.
115 Second, the respondents submit that it is of critical significance that Ms Ozioko was not cross-examined about the grounds of termination. They also submit that her unchallenged evidence about her communications with Mr Beynon on 24 August 2015 explained the process of thinking, evidenced by the steps that occurred, which lead to Mr Whelan dismissal. I reject this submission. Ms Ozioko reported directly to Mr Whelan (transcript page 440 line 43). She had no authority to dismiss him, and no role in his dismissal except as directed by Mr Beynon. There is no reason for me to conclude that Ms Ozioko was a particular confidant of Mr Beynon such that he reliably and honestly informed her of his motives for taking adverse action against a staff member in the senior role that Mr Whelan occupied. There is no suggestion that Ms Ozioko advised Mr Beynon to dismiss Mr Whelan, or did anything other than what he told her to do to assist him in his dismissal of Mr Whelan.
116 Ms Ozioko's evidence concerning her conversations with Mr Beynon is hearsay and, although I was prepared to admit it for narrative purposes, I give it little weight. It could not be tested by cross-examination of Mr Beynon, whose state of mind in deciding to dismiss Mr Whelan was critical. But in any event, even at its most favourable for the respondents' case, the evidence of Ms Ozioko in relation to Mr Beynon's state of mind on 24 August 2015 concerning Mr Whelan is inconclusive and unhelpful. Ms Ozioko deposed that Mr Beynon told her that his meeting with Mr Whelan "did not go well" and that although he had not terminated Mr Whelan's employment he had impressed on Mr Whelan that he wanted his performance to immediately improve. Even accepting this evidence, one inference which could reasonably be drawn from Ms Ozioko's evidence is that during or immediately after the meeting with Mr Whelan - in which the issues of bonuses for Mr Whelan and bonus plans were clearly a subject of both discussion and annoyance to Mr Beynon - Mr Beynon was considering dismissing Mr Whelan even though he had not terminated his employment at that point.
117 Third, the respondents mounted a detailed attack on Mr Whelan's credibility, submitting (inter alia) that Mr Whelan had planned to resign in any event, that he was disloyal and disrespectful to Mr Beynon and mocked him behind his back, that he removed documentation from the workplace on the date of his dismissal, and that he improperly left work early on that date. In my view these issues bear little on Mr Whelan's evidence so far as concerns his discussions with Mr Beynon concerning bonuses and bonus plans. As I have already observed, I am satisfied that Mr Whelan was anxious to the point of obsession in the months leading up to his dismissal, and on the day of his dismissal, about whether the first respondent would either pay him a bonus or develop a bonus plan. It was clear that Mr Whelan was relying on the payment of a bonus to extricate him from his financial straits. His evidence concerning this anxiety, and his interactions with Mr Beynon both prior to and on 24 August 2015 concerning bonuses, was credible.
118 Fourth, I do not accept the respondents' claim that Mr Whelan was dismissed for gross misconduct because he had, without authorisation, sent a copy of the Zoo Magazine article and photo shoot to Ms Bouvier. I take this view because:
Mr Whelan acknowledged the importance to the first respondent's business of confidentiality, however he gave evidence that Mr Beynon had given him permission to send a copy of the Zoo Magazine article to Ms Stewart. This evidence is not contradicted by any substantive evidence, and I consider it plausible that Mr Beynon would not have objected to a copy of the material being sent to Ms Stewart, particularly if there was some confusion about whether the Zoo Magazine article had already been published when Mr Whelan forwarded a copy of the material to Ms Stewart.
The only evidence the respondents advanced on this point was that of Ms Ozioko, deposing that Mr Beynon had told her there had been unauthorised disclosure to Ms Stewart, and asking her to investigate. How Mr Beynon had allegedly come by this knowledge is unknown and was not the subject of evidence or testing. Further, Ms Ozioko's evidence concerning this issue is minimal. I consider that Ms Ozioko's evidence on this point is of little value.
Mr Whelan's allegedly unauthorised provision of the article to Ms Stewart was apparently known to Ms Ozioko by early August 2015. Ms Ozioko gave evidence that she reported this information to Mr Beynon. Although it is not clear when Ms Ozioko made this report, it is logical that she would have done so immediately if it were as important as she stated in her evidence. I consider that if Mr Beynon had had concerns about Mr Whelan's alleged conduct in respect of the ZOO Magazine article such that it warranted summary dismissal, he would have confronted Mr Whelan about this matter in early August, and certainly prior to 24 August 2015. There is no evidence that such a confrontation occurred.
Examination of the transcript of the meeting of 24 August 2015 reveals no discussion of the Zoo Magazine article during the course of that meeting. This is consistent with Mr Whelan's evidence that it was not bought to his attention that he had allegedly breached any confidential communication provisions of his employment contract as a result of forwarding the ZOO Magazine article to Ms Stewart until he received the letter of termination.
Although Ms Ozioko disputed Ms Marshall's version of events of the evening of 24 August 2015 (transcript page 384 lines 17-19, 29-34), I consider that Ms Marshall was a credible witness, and prefer her evidence in respect of the events of the evening of 24 August 2015 to that of Ms Ozioko. I take this view because Ms Marshall was an independent witness, with no convincing motive to give untruthful evidence in this respect. It was also apparent from her testimony that the events of that evening made a significant impression on her, such that she was able to recall with those events with clarity. I also consider her version of events plausible.
119 In my view, the allegedly unauthorised provision by Mr Whelan to Ms Stewart of the ZOO Magazine material was irrelevant to Mr Beynon's decision to dismiss Mr Whelan.
120 Fifth, both in [39] of their defence and in submissions the respondents claim that the "real" grounds for terminating Mr Whelan's employment included other matters "in the mind of Ms Ozioko and Mr Beynon" which I set out earlier in this judgment. In relation to these other matters I make the following observations.
121 What was "in the mind of Ms Ozioko" insofar as concerns Mr Whelan's summary dismissal is irrelevant. Ms Ozioko was not the decision-maker, and could only surmise what motivated Mr Beynon to dismiss Mr Whelan.
122 The respondents claim that Mr Whelan had demonstrated lack of fidelity to Ms Ozioko in that Mr Whelan had allegedly told Mr Beynon, during the course of a business trip to Europe, to "fuck off" when in fact Mr Whelan had not done so, and when Mr Whelan subsequently lied to Mr Beynon about it. Ms Ozioko gave evidence that she understood from Mr Whelan that on 17 July 2015, Mr Beynon had remonstrated with Mr Whelan about Mr Whelan's comments to Ms Ozioko, and what Mr Whelan had allegedly said to Mr Beynon during the Europe business trip. This incident took place five weeks before Mr Whelan was dismissed. The respondents submit that the issue of what Mr Whelan had said was raised by Mr Beynon during the meeting of 24 August 2015 and note the following exchange:
Beynon: Be very careful with me. You've lost. You've lost my ability. You think you know me. You sat there at my place and argued about what Suzie said, what you didn't say, and you did fucking say it.
Whelan: I couldn't remember saying it. I was wrong on that occasion.
(Meeting transcript page 27)
123 However, even assuming that this conversation related to the Mr Whelan's alleged comments about Mr Beynon, as reported by Ms Ozioko - and this is not at all certain because it was not put to Mr Whelan during the trial and not tested by cross-examination of Mr Beynon - the matter appears to be of minor importance. At most, the evidence suggests that Mr Beynon took the view that Mr Whelan had been posturing to Ms Ozioko about Mr Whelan's alleged comments to Mr Beynon during their business trip to Europe, that Mr Beynon had called him to account for it and put him in his place for saying it. It was not mentioned again by Mr Beynon during the meeting. Further, whether Ms Ozioko took the view that Mr Whelan had lied to her is not material. I am satisfied that the issue concerning whether Mr Whelan had told Ms Ozioko that he had told Mr Beynon to "fuck off" during their Europe business trip was irrelevant to Mr Beynon's decision to dismiss Mr Whelan on 24 August 2015.
124 The respondents claimed that Mr Beynon did not trust Mr Whelan's ability to continue to act as General Manager given Mr Whelan's inability to manage his own financial affairs. The transcript of the discussion of 24 August 2015 certainly indicates that Mr Beynon considered that Mr Whelan was mismanaging his domestic financial affairs at that time. However the meeting ended with Mr Whelan and Mr Beynon continuing with business as usual, after Mr Beynon had told Mr Whelan to get his financial affairs in order. This suggests that Mr Beynon believed that Mr Whelan could get his financial affairs in order. If Mr Beynon formed a view at that meeting that Mr Whelan was incapable of managing the business of the first respondent and should be dismissed for that reason, it is not evident from the transcript of the meeting.
125 The respondents claimed that Mr Whelan had failed to act in a truthful way in his dealings on 24 August 2015. In addition to Mr Whelan's alleged evasiveness concerning his having told Mr Beynon to "fuck off" while in Europe - which I have already found irrelevant in the circumstances of this case - the respondents referred to:
Mr Whelan's evasiveness about the reasons he was in such financial circumstances (including whether Mr Whelan had purchased a new property); and
Mr Whelan's evasiveness about being absent from work in July 2015 and on other days before 5.00 pm.
126 In relation to the Mr Whelan's alleged evasiveness concerning his financial circumstances, the transcript shows that Mr Beynon pressed Mr Whelan for an explanation of why Mr Whelan was in financial straits. However, there is no evidence before me to indicate that Mr Beynon considered that Mr Whelan should be dismissed because of it - rather Mr Beynon appeared merely impatient and exasperated with Mr Whelan, and required him to get his financial affairs in order to remove the external stress on him which might affect his performance at work.
127 In relation to Mr Whelan's alleged evasiveness concerning his alleged absences from work, from the meeting transcript Mr Beynon appeared to believe (and further appeared to be angry) that Mr Whelan had been absent from work before 5.00 pm on business days, and had been away from the office during July 2015 when both Mr Beynon and Ms Ozioko were away. In particular the respondents rely on the following exchange in the meeting transcript of 24 August 2015:
Beynon: The only time you were out, beside the bad memory, you think that the only time you were out when my mum died that week was because of Night Owl. So I'll find out the Night Owl appointment. If you can give me the Night Owl appointment, and I know the week my mum ...
Whelan: Yes.
Beynon: And you were only out for one day. I got the call, and it wasn't - you got the Night Owl later in the week. I know the day you went to Night Owl, and that was fine, but it was prior to that that I got the shits, Andrew. I got the shits, but I was dealing with my mum, so I wasn't going to fucking even bother about it, but I got and heard prior to that Night Owl meeting, which was another occasion. That was prior to that.
Whelan: Travers, I don't leave here and go and sit on a beach.
Beynon: I don't care. I don't care where you go.
Whelan: But you should, because you're talking to me about that I was out, so there's an issue ...
Beynon: Andrew ...
Whelan: ... of trust.
Beynon: The Night Owl is one thing, but again, I shouldn't be talking to a general manager ...
Whelan: Correct, exactly.
Beynon I haven't finished. I'm dealing with my mum. I'm away. Suzie's on holiday. Sorry, Night Owl, can I postpone it next week, there's no one at the office. The managing director is gone, the HR operations manager is gone and I'm the only one there. I can't leave the business. So you sitting there making fucking excuses is worse. Don't defend yourself with something like that. It's irresponsible because you should have gone well, I can't leave the fucking business. The fucking cats go, the mice will fucking play.
Do you think it's fair that Suzie gets called on holidays? Would you be okay? Would you be okay if you got the calls when you were on holiday? I know what you're like. You'd lose your shit if Suzie turned to you and said well, I was fucking meeting with somebody. I was away. Or should I be here? Should I be managing people? Should I be here making sure that fucking the business is run properly? I don't think so. Because you don't see the work I do. You think because I'm away, I don't know what's going on?
Whelan: I never said that. You're making assumptions about me.
Beynon: I'm actually setting a point up, Andrew. You take a very long time to work me out, still. The point is you're right, I am still fucking very much owner of the business. It doesn't mean I have to be here. So I'm not here. Suzie's on fucking holiday. You know that. As general manager, you should have enough fucking wits to say well, I'm not leaving. Sorry, Night Owl, can I come next week? Our major staff is away for the week. It's just this week; she's back next week, I can come on Monday.
There are no excuses. Do you think that's reasonable? You did. It happened a couple of times in the week. It wasn't just Night Owl. Like I said. At what point are you going to say shit, I'm responsible? I don't want Suzie bothered, because that's not fair, because you know when I go on holidays, I expect people to fucking be responsible enough to sort the fucking shit out and have somebody there looking after the team. I don't fucking care who, how, or why, just make sure no one fucking rings me on holidays. Would that be fair from you?
Whelan: No, it wouldn't.
Beynon: That's you speaking.
Whelan: No, I never say that.
Beynon: For you to believe that. Okay. Because you never speak like that. Guys, can you just make sure someone's there, please? While I'm on holidays, I don't want to be bothered because someone at the senior level can't be responsible for making sure the team is under control. You would have sworn your head off, Andrew, if someone had called you on holidays because Suzie was fucking somewhere and they couldn't get her so they had to ring you on holidays. How would you react?
Whelan: I always get called on holidays.
Beynon: How would you react if it was called - yeah, for particular things, but if someone called you because they couldn't get Suzie, because she's just left for something. I need to get this, but there's no one around. Would you lose your shit? Maybe get a call for a big deal, for a price snap. Okay, fine, done, but to be called just for fucking no other reason than Suzie's just fucking left and gone somewhere. She can defend oh, but I was there. I wasn't down the beach, I was at a customer, or R&G tech, or I was there.
Well, hang on, why didn't you get R&G there or told Night Owl to fucking come here or can we do it next week because I cannot be another fucking person down?
(Meeting transcript page 27-30)
128 In the absence of cross-examination of Mr Beynon, however, this material is of little assistance to the respondents' case. I am unable to form a view whether Mr Beynon was simply delivering a tirade at Mr Whelan, or whether Mr Beynon believed Mr Whelan was being evasive, or the extent to which Mr Beynon considered that Mr Whelan's alleged conduct meant he should be dismissed. I am also not persuaded that Mr Whelan was being evasive as the respondents claim. Rather it appeared from the transcript that he was endeavouring to placate Mr Beynon. Significantly, this material was not put to Mr Whelan in cross-examination.
129 The respondents claim that Mr Whelan was dismissed because there was a prospect that Mr Whelan would imminently resign from employment with the first respondent and act contrary to its interests by disclosing confidential information. In my view this claim has no merit. There is no evidence before the Court that, when he dismissed him, Mr Beynon considered that Mr Whelan was about to resign and act to the detriment of the first respondent. Mr Whelan's evidence was that he was prepared to continue to endure working for the first respondent because he needed the money. In my view, the evidence supports a finding to that effect.
130 The respondents claim that Mr Whelan was dismissed because he failed to comply with Mr Beynon's oral instruction given earlier on 24 August 2015 by leaving the office before 5.00 pm, and then failing to answer or return phone calls made to his mobile phone by Mr Beynon. It is not in dispute that Mr Whelan left the office before 5.00 pm on 24 August 2015. His evidence was that he was unwell, and indeed he attended a medical clinic around 4.00 pm that day where he received a medical certificate as being unwell. As I noted earlier in this judgment, Mr Whelan gave evidence that he did not answer or return Mr Beynon's phone calls because he was unaware of them while in the medical clinic.
131 Notwithstanding Mr Whelan's explanation in his evidence, it does appear likely that Mr Beynon's decision to summarily dismiss him was at least partially due to his anger at Mr Whelan's early departure from the office on a day when Mr Beynon had specifically told him not to leave early, whether for medical consultations or otherwise. I make this observation, placing to one side the question whether dismissal of Mr Whelan for attending a medical consultation because of illness would not itself be a contravention of s 352 of the FW Act. I also consider it likely that Mr Beynon would have been angered by Mr Whelan's failure to answer his telephone calls. This is consistent with Ms Ozioko's evidence concerning Mr Beynon's response when she informed him that Mr Whelan had left the office.
132 However, this conclusion does not mean that Mr Beynon's views of Mr Whelan repeatedly inquiring about a bonus was not a substantive or operative factor in his decision.
133 The onus was on the respondents to prove that Mr Whelan's inquiries about payment of a bonus or establishment of a bonus plan were not a substantive or operative reason for his dismissal, and I do not consider that they have discharged that onus. Taking into account the material before the Court I consider that Mr Beynon dismissed Mr Whelan because he considered Mr Whelan unreliable and his performance poor, exacerbated by repeated requests by Mr Whelan for more money by way of bonus payments or the development of a bonus plan. At the meeting on 24 August 2015, Mr Beynon had derisively dismissed Mr Whelan's applications for bonus or a bonus plan as undeserving, and was clearly annoyed by Mr Whelan's supplications in light of his unfavourable view of Mr Whelan's conduct in the workplace and his perception of Mr Whelan's mismanagement of his personal financial affairs. The meeting between Mr Beynon and Mr Whelan on 24 August 2015, where Mr Whelan again sought a bonus plan and Mr Beynon's dismissal of Mr Whelan's inquiries discussed in some detail, set the scene for Mr Whelan's dismissal later that day. I consider it likely that, as far as Mr Beynon was concerned, Mr Whelan's conduct on the afternoon of 24 August 2015 - specifically leaving early on the very day when Mr Beynon had stridently criticised Mr Whelan's workplace performance and his allegedly frequent early departures from the workplace, and then failing to answer Mr Beynon's telephone calls - was "the last straw" for Mr Beynon.
134 In my view, Mr Whelan has substantiated his claim against the first respondent for contravention of s 340 of the FW Act.