Always On? Not Anymore – Understanding the Right to Disconnect

The ‘right to disconnect’ allows employees to refuse to monitor, read, or respond to contact, or any attempted contact, from their employer outside of an employee’s working hours provided that the refusal is reasonable.^[1] The right to disconnect equally applies to contact, or attempted contact, from third parties, such as clients or staff from other businesses, made to employees where that contact relates to the employee’s work.^[2] Such an entitlement aligns Australia with other international employment law systems, such as France’s right to disconnect under article L2242-17 of the Code du travail (‘Labour Code’) (France). Ultimately, the protections recognise the need for a reasonable work-life balance within a digital world where technology permits the lines between the conventionally distinct personal-life and work-life spheres to be easily transgressed. The Australian right came into effect on 26 August 2024.

The right was originally reserved only for employees of non-small businesses employers. Non-small business employers are businesses with more than fifteen employees.^[3] However, from 26 August 2025, the right will now apply to small business employees. Considering that small businesses constitute a considerable proportion of the total number of businesses in Australia, the newfound protections afforded to small business employees is a notable development in the Australian employment law landscape that both employees and employers alike ought to be fully acquainted with.

What is the Right to Disconnect?

A key point to note is that the right does not completely prohibit employers from contacting employees outside of work hours. The consideration is whether the employee’s refusal to monitor, read, or respond to after-hours contact is reasonable. Unless the contact or attempted contact is required by law,^[4] the following matters must be considered when determining the reasonableness of an employee’s refusal:^[5]

• the reason for the contact;
• how the contact is made and the level of disruption caused to the employee;
• the extent to which the employee is compensated (whether monetary or non-monetary) to remain available to work when the contact is made, or to work additional hours outside of their ordinary hours;
• the employee's role and level of responsibility; and
• the employee's personal circumstances, including family and caring responsibilities.

Other considerations, such as the industry of the employer’s business and the terms of the employment contract governing the employee, may also be relevant.

The right to disconnect is also a workplace right under the general protections provisions of the Fair Work Act 2009 (Cth).^[6] Employers thereby cannot take adverse action against an employee, such as dismissing the employee, merely because the employee exercised their right to disconnect.

The guidance currently available

There exists limited case law properly considering the right to disconnect provisions. Many cases have referred to the right to disconnect. For instance, in Moers v Trustee, Williamson Family Trust [2025] FWC 1344, the employee in an unfair dismissal application contended, among other things, that he was dismissed, in part, due to him raising concerns against his employer including being contacted outside of work hours in breach of his right to disconnect.^[7] The Commission did not accept this argument and did not explore the right to disconnect in depth.^[8]

Moreover, the right to disconnect was merely considered as a relevant consideration upon determining whether an unfair dismissal claim fell within the 21 day application time limit where a termination letter was sent to the employee after work hours on a Friday evening.^[9] Another case held that the right to disconnect did not apply to an employer contacting employees requesting the preparation of witness statements for a Fair Work Commission matter as ‘[t]here is no right to disconnect from a proceeding in the Commission.’^[10]

Due to the limited judicial exploration, the limits of the right remain somewhat nebulous. However, the current Federal Court proceedings of Michelle Andrea Martin v Cairns Rudolf Steiner School Ltd (QUD148/2025) may become the first Australian decision to finally define the exact confines of the right.

Martin v Cairns Rudolf Steiner School Ltd – an employment law breakthrough?

Michelle Martin (‘Ms Martin’), a previous teacher at Cairns Steiner School (the ‘Cairns School’), recently commenced general protections proceedings in the Federal Court of Australia. The substratum of her application is that the Cairns School allegedly took unlawful adverse action against her by terminating her employment due to Ms Martin exercising her right to disconnect.

Subsequent to Ms Martin making several complaints against the Cairns School, the Cairns School sent a letter listing six allegations against Ms Martin on 12 September 2024. This letter demanded a response from Ms Martin by 20 September 2024. Importantly, the letter was sent during the Cairns School’s spring holiday period when Ms Martin was required to be on annual leave per clause 21.2 of the Educational Services (Teachers) Award 2020.^[11] In a response letter by Ms Martin to the Cairns School, Ms Martin’s solicitors referred to her right to disconnect and consequently requested an extension for 11 October 2024 upon Ms Martin’s return to work. The Cairns School did not grant the extension and later dismissed Ms Martin.

After proceedings in the Fair Work Commission in 2025,^[12] Ms Martin filed a statement of claim in the Federal Court of Australia. The Cairns School refutes the allegations and maintains that Ms Martin was dismissed due to her misconduct. The proceeding has been presently referred to a mediation.

What does this mean?

Provided the mediation is unproductive, the case finds its uniqueness in possibly being the first to define: (1) what constitutes an unreasonable refusal to be contacted outside of work hours; (2) what factors will be weighed more than others when determining the reasonableness of a refusal; (3) how employers can make requests to employees outside of work hours to avoid liability; and (4) how the right can be best leveraged by employees in a general protections claim. The case will also provide useful guidance as to how the courts will balance the employer’s interests in the efficient undertaking of internal disciplinary processes with an employee’s right to disconnect.

Key Takeaways – What employers and employees need to know

There are several steps that small-business and non-small business employers can do to best protect their employee’s right to disconnect:

• Identify where contact is typically made to employees outside of their working hours;
• Update internal policies to provide what contact outside of formal work hours is considered reasonable depending on the employee’s role;
• Review workplace policies to include procedures for assessing and responding to employee disputes about possible contraventions of their right to disconnect;^[13]
• Review and update employment contracts to ensure they define where compensation will be given for an employee monitoring, reading, and responding to contact made outside their work hours;
• Clearly explain the expectations for reasonable contact outside of work hours with employees;
• Train supervisors and managers regarding when contact with employees will be unreasonable; and
• Manage any contact between third parties and employees to ensure that their right to disconnect from third parties is upheld.

Employees of small or non-small business employers are also encouraged to understand both their right to disconnect and what kinds of circumstances will breach their right.

Kells’ team of employment law solicitors can assist employers with any questions you may have regarding the implementation of the right to disconnect within your business. Our team can further provide advice as to how to eliminate risks or manage disciplinary actions. For employees, we are equally able to provide advice regarding the enforcement of your right to disconnect.

By Cameron Deguara at Kells Lawyers, based in our Wollongong office.

^[1] Fair Work Act 2009 (Cth) s 333M(1).

^[2] Fair Work Act 2009 (Cth) s 333M(2).

^[3] Fair Work Act 2009 (Cth) s 23(1).

^[4] Fair Work Act 2009 (Cth) s 333M(5)

^[5] Fair Work Act 2009 (Cth) s 333M(3)

^[6] Fair Work Act 2009 (Cth) s 333M(4)

^[7] Moers v Trustee, Williamson Family Trust [2025] FWC 1344 at [6].

^[8] Moers v Trustee, Williamson Family Trust [2025] FWC 1344 at [90].

^[9] Peter Clark v The Trustee For Pausco Trust [2025] FWC 901 at [34]; See also Singh v Qube Logistics (VIC) Pty Ltd [2025] FWC 341 at [8].

^[10] Pringles Ag-Plus Pty Ltd (t/as Emmetts) v Daws [2024] FWC 3545 at [14].

^[11] Fair Work Commission, Educational Services (Teachers) Award 2020, MA000077, cl 21.2.

^[12] Martin v Cairns Rudolf Steiner School Ltd [2025] FWC 368.

^[13] Fair Work Act 2009 (Cth) s 333N(2).