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A Fair Work Commission full bench has affirmed the principles of what constitutes work-related conduct out-of-hours, in upholding an employer's appeal against a reinstatement order.

In July last year, a train driver for Sydney Trains challenged his dismissal, after being charged in August 2020 for having a high-range blood alcohol content while driving (he was later sentenced to a two-year community corrections order and lost his licence for six months).

An investigation found he'd breached the employer's code of conduct and, despite his remorse and attendance at drug and alcohol recovery programs, he was sacked.

But Deputy President Bryce Cross found the employee's out-of-hours conduct couldn't constitute a valid dismissal reason, as he wasn't on-call nor due to report for his next shift until the following day, and that the employer "impermissibly strain[ed]" to link the conduct to his work duties by equating it to an absence of judgement...