A worker who had previously been cleared of misconduct for a scuffle with a member of the public may now face consequences as a commission full bench has overturned the decision.
The NSW train driver successfully contested his dismissal for violating customer violence policies by getting into a fight with a member of the public at Bankstown Railway Station in 2022.
During the altercation, the worker attempted multiple times to move past the man who had tried to trip him. However, they became entangled, leading the worker to kick and push the man in self-defense.
The initial commission ruling had found that NSW Trains failed to prove that the worker was not acting in self-defense, thus deeming the dismissal unjust. Subsequently, the full bench determined that the self-defense test was incorrectly applied in the worker's case.
NSW Trains argued that the worker should bear the burden of proof when claiming self-defense, and the bench agreed, stating that the worker must provide evidence it was self-defense.
The matter will be reheard, potentially impacting how allegations of self-defense in response to misconduct are handled in the future, though the bench has offered the parties the option of conciliation, prior to any rehearing.
NSW Trains T/A NSW Trainlink v Wael Al-Buseri [2023] FWCFB 165 (21 September 2023)
