Beyond the hype, the more subtle reality of the right to disconnect

As of 26 August, last week, small businesses are now subject to the right to disconnect laws that have been in play for other businesses for over 12 months.

Employees of small businesses now have a ‘right to disconnect’ like other employees. A right to disconnect applies unless an employee unreasonably refuses to monitor, read or respond to contact from their employer, or third party, outside their working hours.

Whether the contact is ‘reasonable’ will depend on:

• the reason for the contract;
• how the (attempted) contact is made and the level of disruption it causes an employee;
• the employee’s compensation;
• the employee’s role, level and responsibility
• the employee’s personal circumstances (including family or caring responsibilities)

Despite the media frenzy surrounding this new law, after 12 months of operation it is interesting to note that there has been very little disputation in the Fair Work Commission based on the right to disconnect.

Disputes about the right to disconnect

If disputes about the right to disconnect arise they must first be addressed at the workplace level. However, if that doesn’t work, an aggrieved party can make an application to the Fair Work Commission to deal with the dispute.

The Commission can make a “stop order” or deal with the dispute in another way, or both. A stop order may look like an order directing an employee to cease unreasonably refusing out of hours contact, or conversely, an order stopping the employer from continuing the unreasonable contact.

The Commission also has powers to mediate or arbitrate a right to disconnect dispute.

Although, based on our searches, the Commission has yet to issue any orders regarding the new right, that doesn’t mean the right to disconnect has laid entirely dormant.

Emerging case law

Only a couple of cases have begun to explore the right to disconnect, and its implications, as follows:

• Out of time unfair dismissal application accepted because of right to disconnect

In Clark v Trustee for Pausco Trust, [1] the Fair Work Commission was tasked with determining whether to allow an unfair dismissal application to proceed outside the 21-day lodgement timeframe.

The employee was emailed a letter of termination on a Friday night at 7:39 PM, outside his normal working hours. He didn’t read the email until the next day, and filed an unfair dismissal claim 21 days after he became aware of the termination.

The employer argued that the employee’s unfair dismissal application should be dismissed, because it was lodged a day late. However, the Commissioner, in reference to the right to disconnect, concluded that it was reasonable to assume that the employee was not required to monitor his emails outside his work hours.

The Commissioner found that the dismissal should therefore take effect from the day the employee became aware of his termination and concluded that the unfair dismissal application was filed within the required 21-day timeframe.

• Failure to respond to misconduct allegations based on right to disconnect

In Martin v Cairns Rudolf Steiner School [2] a high school teacher alleged that the school took unlawful adverse action against her, including dismissing her, for reasons including that she had exercised her right to disconnect.

The teacher had previously raised complaints, which prompted an internal investigation by the school. Following this, the school presented her with allegations regarding her conduct. However, the teacher did not respond to the allegations, stating that she was exercising her right to disconnect, as the allegations were communicated during school holidays. Her decision not to engage with disciplinary process contributed to her eventual dismissal.

This matter was not resolved by the Fair Work Commission, and the teacher has since filed an application in the Federal Court. The case remains ongoing, and we will continue to monitor its developments.

Significantly, this case demonstrates how employees can rely on the right as a protected workplace right in general protections (or victimisation) disputes.

Looking ahead, rather than triggering standalone disputes that result in a “stop” order, it appears that the right to disconnect will more commonly be argued by employees to strengthen general protections claims.

Lessons so far

With the right now extending to small business employees, there are concerns this will trigger a flood of disputes. However, the test case of the last 12 months suggests otherwise.

The right to disconnect has yet to be meaningfully tested before the Fair Work Commission. The anticipated wave of litigation surrounding the right to disconnect has not materialised.

As the legal and social understandings of the right continue to evolve, it is important that employers remain mindful about out of hours contact with employees and set clear expectations about this considering the particular worker and their role.

If you have any questions about the right to disconnect, please contact our Employment, Discrimination and Equality Team on 03 5273 5283.

[1] [2025] FWC 901.

[2] [2025] FWC 368; QUD148/2025.