Right to Disconnect: Emerging Trends
The Right to Disconnect (Right) came into effect on 26 August 2024 for non-small business (15 or more employees) and has been inserted into the Fair Work Act 2009 (Cth) (Act) and all modern awards. The Right will take effect from 26 August 2025 for small businesses.
Essentially, the Right allows employees to refuse to monitor, read or respond to contact, or attempted contact, from an employer or a third party outside of the employee’s working hours unless the refusal is unreasonable.
The Act sets out factors that must be considered when considering whether an employee’s refusal is unreasonable, such as:
the reason for contact;
whether the employee is compensated for remaining available outside working hours;
the nature of the employee’s role and level of responsibility; and
the employee’s personal circumstances (including caring/family responsibilities).
The Right is a workplace right within the meaning of general protections under the Act, meaning that an employer may not take adverse action against an employee (such as disciplinary action or dismissal) because the employee has exercised the Right.
Understanding the Right
The introduction of the Right has caused some concern among employers, with some mistakenly assuming it prohibits any contact with employees outside working hours.
This is not the case. Furthermore, some modern awards have provided clarification on the application of the Right. For example, the Mining Industry Award 2020 (Award) clarifies that the Right does not prevent an employer from contacting an employee outside their working hours in circumstances including to notify an employee of an emergency roster change or a recall to work under the Award.
While the Right does not prevent employers from contacting employees outside working hours, contacting employees outside their working hours still requires careful consideration, particularly when it relates to disciplinary matters.
Considerations for employers
The Right can expose employers to risk particularly when managing disciplinary matters outside an employee’s working hours, including during their rostered off/non-working period and while the employee is on leave.
If an employee refuses to participate in a disciplinary process (including attending a disciplinary meeting or responding to allegations) outside their working hours and the employer subsequently takes action against an employee (such as dismissal), the employer to face risk of a general protections claim, where the employee may argue that adverse action was taken against them because they exercised their Right.
There is no cap on compensation for general protections claims and there is a reverse onus of proof, meaning that the employer must prove that adverse action was not taken against because the employee exercised the Right.
Recent disputes
While the Fair Work Commission (Commission) has yet to decide many cases concerning the Right, current cases before the Commission highlight potential implications for employers.
Michelle Andrea Martin v Cairns Rudolf Steiner School Ltd [2025] FWC 368
In this general protections case, the Applicant alleges that adverse action was taken against her by the Respondent because she exercised the Right by refusing to respond allegations against her while she was on leave.
The Applicant proposed an extension to respond to allegations upon her return to work; however, the Respondent refused this, substantiated their findings against the Applicant and subsequently dismissed her.
Peter Clark v The Trustee For Pausco Trust [2025] FWC 901
The issue in this decision was whether the Commission should exercise discretion in allowing an unfair dismissal application outside the usual 21-day timeframe. The employer emailed the employee a termination letter at 7:39pm on 20 December 2024, outside of the employee’s working hours. The employee did not see the email until the following day and filed an unfair dismissal claim on 11 January 2025.
The Commission, referencing the Right, concluded that it was reasonable to assume that the employee was not required to monitor is emails. As such, the Commission found that the dismissal took effect on 21 December 2024, when the employee became aware of his termination, and therefore the employee filed his unfair dismissal application within the required 21-day timeframe.
Tips for employers
To help mitigate risks surrounding the Right when navigating disciplinary matters, we recommend the following:
avoid contacting employees about a disciplinary matter, facilitating a disciplinary meeting or requiring an employee to respond to allegations outside their working hours or while they are on leave;
notify employees of outcomes and commence any disciplinary action during their working hours;
consider whether paid stand down is appropriate in the circumstances; and
if contact outside working hours is necessary, provide the employee clear reasons for the timing (e.g., for a FIFO employee on their rostered off period, you may need to contact them outside their working hours to notify them that they will not be flying to site and will be required to attend a meeting at your office).
How Norfolk can assist employers
Norfolk Workplace Consulting developed a Right to Disconnect Toolkit (Toolkit) last year when the Right was introduced. This Toolkit includes:
Employer Guidelines;
Right to Disconnect Policy;
Employer Readiness Checklist,
to help employers understand, prepare for and navigate the Right.
If you would like a copy of this Toolkit or advice on the Right, please contact us today.