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It was up to an employee, not his employer, to prove he acted in self-defence during a "violent" out-of-hours altercation, a Fair Work Commission full bench has ruled in overturning an unfair dismissal ruling.

The NSW TrainLink intercity train driver was sacked in March this year for serious misconduct, after he and a member of the public got into a fight while he was on his way to work.

In unfair dismissal proceedings, CCTV evidence showed the member of the public trying to trip the employee from behind, followed by the pair having a conversation, which then led to grabbing and pushing each other, with the employee at one stage slapping the offender across the head...