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An employee has successfully appealed a ruling that his out-of-hours misconduct warranted his dismissal, with a full Federal Court finding there was no proper consideration of procedural fairness matters.

The Sydney Trains employee was charged on 16 August 2020 for having a high-range blood alcohol content while driving, and was subsequently sacked for breaching the employer's code of conduct.

In July 2021 unfair dismissal proceedings, Fair Work Commission Deputy President Bryce Cross found the train driver's out-of-hours conduct couldn't constitute a valid dismissal reason, as he wasn't on call nor due to work his next shift until the day after being charged, and he ordered reinstatement.

The employer appealed, arguing before an FWC full bench that the Deputy President should have found in its favour...