After Hours, Under Fire: Navigating Disputes in the Age of the Right to Disconnect

Twelve months on, the focus has shifted from theory to practice. As disputes under the Right to Disconnect begin to surface, employers should be mindful of how the legislation operates in the real world and what they should do to ensure they uphold their team’s workplace rights.

What Is Considered Unreasonable Refusal?

Whether an employee’s refusal to monitor, read or respond to after‑hours contact is unreasonable is determined by reference to section 333M of the Fair Work Act. Section 333M provides that unreasonable refusal can include, but is not limited to the following:

· why the employer made contact or attempted contact with the employee;

· how the contact or attempted contact was made and the level of disruption this causes the employee;

· the extent to which the employee is compensated, financially or otherwise, to remain available to perform work during the relevant period or for working additional hours more generally;

· the nature of the employee’s role and the level of responsibility associated with it; and

· the employee’s personal circumstances, including family or caring responsibilities.

For employers, what is deemed unreasonable will depend less on whether contact was made, and more on why, how and to whom it was directed.

Disputes That Have Arisen and Tested the Legislation Since It Commenced

To date, the Right to Disconnect has attracted relatively few disputes requiring intervention by the Fair Work Commission (FWC). The FWC’s Annual Report 2024–25 attributes this low number, in part, to workplaces proactively adjusting to the Right to Disconnect at an internal level.

Despite this, some Right to Disconnect disputes have found their way to the FWC, demonstrating the circumstances in which the provisions may apply.

The Right to Disconnect was first substantively tested in Martin v Cairns Rudolf Steiner School [2025] FWC 368 (Martin). While the proceedings have ultimately progressed as a general protections claim in the Federal Court of Australia, the case raises important issues concerning the interaction between disciplinary processes and an employee’s right to disconnect.

In Martin, Andrea Martin (Ms Martin), a teacher at Cairns Rudolf Steiner School, alleged that her dismissal constituted unlawful adverse action taken because she exercised multiple workplace rights, one of which was the right to disconnect. While on sick leave and acting on medical advice to avoid stressful engagement, Ms Martin was issued a letter, containing allegations of misconduct and requiring a response from Ms Martin during the school holiday period. Despite seeking an extension, citing her right to disconnect under section 333M of the Fair Work Act, her request was refused. Her employment was subsequently terminated.

Although the Federal Court proceedings remain ongoing, a central issue will be whether the school took adverse action because Ms Martin exercised her right to disconnect.

Other than Martin, to date, there have been very few proceedings in which the right to disconnect has been a central issue in dispute. Nevertheless, the concept has increasingly emerged as a relevant consideration in Australian employment law, with tribunals referring to it as a contextual factor in a range of decisions.

For example, in Bianca Knott v Tru Ninja Pty Ltd [2026] FWC 298, a matter concerning an unfair dismissal claim, the applicant, Bianca Knott (Ms Knott), alleged, among other things, that her employer, Tru Ninja Pty Ltd, contacted her during a period of bereavement and personal leave following the death of her grandmother. The employer requested evidence of her grandmother’s passing to substantiate her leave. In her submissions, Ms Knott relied in part on her right to disconnect, arguing that she was not obliged to respond to work-related communications during this period.

Similarly, the right to disconnect was raised in Mergime Beha v WorkPac Pty Ltd [2026] FWC 605, another unfair dismissal matter. In that case, Mergime Beha (Ms Beha) challenged her employer’s attempts to telephone while she was on annual leave to inform her that the employer no longer required her services, effectively rendering her position redundant. Ms Beha disputed the validity of this communication, asserting that the contact was inappropriate and inconsistent with her right to disconnect, and therefore did not constitute proper notification of her employment status.

While both matters arose in the context of unfair dismissal claims, they illustrate the growing significance of the right to disconnect as an emerging consideration in employment disputes. Its relevance lies not in its standalone enforceability in these cases, but in its influence on how tribunals assess the reasonableness of employer conduct and the expectations around workplace communication.

What to do if a dispute arises with respect to an employee’s Right to Disconnect

Disputes about an employee’s Right to Disconnect should, at first instance, be discussed and resolved at the workplace level.

To ensure that disputes are identified and resolved promptly, employers should consider taking the following practical steps:

1. Set expectations early – consider seeking legal advice on updating employment agreements to incorporate clear policies surrounding the Right to Disconnect, including the following:

a. clear policies on how, and in what circumstances, employees may be expected to monitor, read or respond to contact from the employer outside of ordinary work hours;

b. articulation of when employees may be expected to work outside of their ordinary or contractual hours and how, if any, additional work hours will be managed;

c. where appropriate, considering additional remuneration terms to compensate employees who are contacted or required to monitor, read or respond to contact from the employer outside of ordinary work hours; and

d. including clear internal dispute resolution procedures to encourage early intervention and resolution at the workplace level.

2. Awareness – ensure that management is aware of the right to disconnect and they understand the limitations of when, and how, they can contact employees to respond to work outside of their regular or contractual working hours.

3. Review and monitoring – regularly review and monitor employee workloads and resources to ensure that they have achievable targets within allocated work hours, minimising the necessity of contact outside of standard working hours.

If a dispute cannot be resolved at the workplace level, either the employer or the employee may apply to the Fair Work Commission to seek its intervention to resolve the dispute. Disputes concerning the Right to Disconnect can also be commenced through courts with federal jurisdiction, as the right is protected under the general protections provisions in Part 3‑1 of the Fair Work Act.

Given the legislation is still in the early stages of adoption, and few disputes have yet been considered by the Commission, obtaining legal advice from the outset can assist in managing risk and avoiding unintended breaches of the Fair Work Act.

Anika Talukder and the Watson Webb employment advisory and disputes team are equipped to assist you if you are looking to understand your rights and obligations under the Right to Disconnect provisions (either as an employer or an employee).

Disclaimer
This article is provided for general information purposes only and does not constitute legal advice. It is not intended to address the specific circumstances of any individual or business, and reliance should not be placed on it as a substitute for obtaining legal advice tailored to your particular situation.

You should obtain independent legal advice before implementing, interpreting, or relying on any agreement, obligations or policies relating to the right to disconnect.