Mr Sergey Baychkov v Whitech Pty Ltd (subsidiary of Fujifilm Australia) T/A Whitech Pty Ltd

[2016] FWC 3405

[2016] FWC 3405 [Note: An appeal pursuant to s.604 (C2016/3937) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Sergey Baychkov
v
Whitech Pty Ltd (subsidiary of Fujifilm Australia) T/A Whitech Pty Ltd
(U2016/103)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 26 MAY 2016

Application for relief from unfair dismissal.

[1] This application pursuant to s.394 of the Fair Work Act 2009 (the Act) was listed before me for hearing on 10 and 11 May 2016 in Sydney.

[2] Mr Baychkov represented himself. The respondent was represented by Ms Moorhouse, an in-house legally qualified employee of Fuji Film Australia Pty Ltd, a related entity of the respondent.

[3] I considered the provisions of the Act and determined that the appearance of Ms Moorhouse would assist me in the efficient resolution of the jurisdictional issue raised by the respondent, and in the merit arbitration.

[4] I decided to initially determine whether Mr Baychkov’s employment had been terminated by the respondent by way of a constructive dismissal. He gave oral evidence regarding his alleged constructive dismissal and as part of his application provided a number of exhibits.

[5] Mr Baychkov relied on the material set out in his application at paragraph 3.2 and the documents attached to that application which included his letter of resignation dated 18 December 2015. He relied on his Witness Statement of Sergey Baychkov (exhibit B1), Submissions (exhibit B2), Complimentary Submissions (exhibit B3), Document List (exhibit B4), 3 folders of documents (exhibit B4.1, B4.2 and B4.3), an email (exhibit B5) and a Bundle of Documents (exhibit B6).

[6] In summary Mr Baychkov submitted that:

● he was treated badly by employees of the respondent during the course of his employment (this conduct involved him being ignored and not spoken to when others were being spoken to);

● he suffered degradation and this affected his trust and confidence in the respondent;

● he did not attend a meeting convened with the respondent because he was not provided with proper grounds for the meeting and he wanted to avoid any stress;

● he attended his doctor and was provided with a certificate of unfitness for seven days from 14 to 20 December, and

● he resigned his employment by letter on 18 December 2015.

[7] I asked Mr Baychkov a series of questions in relation to his resignation.

[8] I asked Mr Baychkov why he had resigned his employment before his period of sick leave had expired. He resigned his employment on a Friday. His sick leave expired on the following Sunday. He had other sick leave entitlements he could have accessed, although his taking too much sick leave had been the subject of prior complaint.

[9] Mr Baychkov responded that he was not able to continue to work for the respondent and he expanded upon his dispute with the respondent concerning his sick leave.

[10] Mr Baychkov could have done a number of other things to resolve his difficulties with the respondent other than resigning his employment. He had access to further sick leave. He could have lodged an anti-bullying claim. He could have met with his employer and resolved his difficulties.

[11] I am satisfied that Mr Baychkov decided to resign. He had choices. He was not forced to resign. He consulted his doctor, spent five days at home and then prepared and provided to the respondent a reasoned letter of resignation. Mr Baychkov was certain that he would be dismissed at any future meeting he might attend. He pre-empted that outcome and resigned.

It was for these reasons that I issued my reasons in transcript and my Finding and Order of 10 May 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR580845>