It has been just under a year since we last discussed the introduction of the new legislative changes to the Fair Work Act 2009 (Cth) (FWA) granting employees the right to disconnect. Now, the courts are facing the first public test of how this new right is to be interpreted and implemented, potentially setting a key precedent for how similar cases will be assessed in the future.
The case involves a Queensland teacher who claims she was unfairly dismissed after exercising her right to disconnect by not responding to work-related communications, during a period she maintains constituted school holidays, contrary to her employer's belief. Throughout this time she had also requested an extension to respond to the allegations, however this was denied by her employer. The Queensland teacher is now seeking $780,000 in damages, comprised of loss of future earnings relating to six years of income and $50,000 for emotional distress.
This matter is significant for a number of reasons. Most notably, it is expected to pave the way for how future claims under the right to disconnect in section 333M of the FWA will be assessed by the courts. In addition to shaping the legal framework around this new workplace entitlement, many legal professionals anticipate that this case will provide much-needed clarity on several key considerations. These include:
- when an employee can reasonably refuse to respond to communication during periods of leave;
- the extent to which the right to disconnect applies within disciplinary or investigative processes; and
- how courts will interpret employer obligations where roles involve after-hours responsibilities.
The outcome of this case is likely to influence not only future litigation but also how employers approach internal policies, communication protocols and employee entitlements in the evolving landscape of workplace rights.
Employers are strongly advised to proceed with caution when considering disciplinary action in response to an employee's refusal or failure to engage with work related communications outside of their contracted hours. Legal experts have underscored the critical importance of ensuring managers are appropriately trained to navigate this area of the law, and that clear, well documented policies are in place.
This case serves as a timely reminder for employers to review employment contracts and internal policies to ensure expectations around after-hours availability are clearly defined, particularly in circumstances involving leave, illness, or other personal matters. For those operating or employed in small businesses (with fewer than 15 employees), the right to disconnect obligations will take effect from 26 August 2025.
We will continue to follow this case and provide an update once a decision has been reached.
If you require further advice on managing out of hours contact or how to update your internal policies and employment contracts in light of these changes, please contact Michael Bishop or Amelita Hensman of our Employment Law Team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
