More than a year after the Right to Disconnect took effect, many workplaces are still testing its limits, with two test cases currently under consideration. Employment lawyers respond to hypothetical dilemmas involving the right, from late-night shift updates to collaboration across time zones.

Since the Right to Disconnect came into effect in August 2024, many employers and employees are still figuring out where its boundaries lie. 

The law gives employees the right to refuse to monitor, read or respond to contact outside their working hours if that refusal is reasonable. But what counts as ‘reasonable’ depends heavily on the circumstances.

Early signs suggest the policy is having a positive impact. AHRI’s Australian Quarterly Work Outlook from June 2025 found 58 per cent of employers believe the Right to Disconnect has improved employee engagement and productivity at their organisation, while more than a third reported reduced stress among employees.

However, the process of applying the new rules is not always straightforward. Two disputes currently before the Federal Court and Fair Work Commission (FWC) highlight some of the grey areas.

In one case, a former employee made a general protections application in the Federal Court, claiming she was dismissed after relying on her right to disconnect during a holiday period.

Another dispute before the FWC is examining whether employers can require workers to answer automated calls outside working hours to confirm shifts. Both cases remain unresolved.

Shutdown periods and shift-based contact are just two examples of situations that can complicate the Right to Disconnect – others might include compliance deadlines, operational issues that arise outside standard hours and teams working across different time zones.

To explore where the line might be drawn, we asked three employment lawyers to weigh in on hypothetical scenarios that test the limits of the Right to Disconnect.

Scenario 1: Shift information sent outside work hours 

A large construction company uses an automated system to send employees updates about the following day’s work schedule. Every evening, they receive a recorded phone message or push notification confirming their first job, site location and any safety requirements for the next shift.

Employees are asked to acknowledge the message by pressing a number during the call or clicking a link in the notification. The company says this ensures workers have received important information before arriving on site.

Some employees say the system effectively requires them to monitor their phones outside working hours. While the alerts usually arrive between 7pm and 9pm, they sometimes come later in the evening when schedules change. Workers who fail to acknowledge the messages are sometimes contacted by a supervisor the next morning or even have their shifts cancelled.

Response from Michael Byrnes, Partner at law firm Swaab

As a starting point, the construction company is within its rights to contact its employees by sending the updates. The contact is important and necessary in that the update message contains critical information for the next shift. An employee who refused to monitor such contact would likely be acting unreasonably.

That said, if this information is available during work hours, it should be relayed at that point. Once it is known, the information should be relayed as soon as practicable to minimise the imposition on employees. 

Further, the method of communicating this information should be the most convenient possible for the employee. Ideally, employees would be provided a choice between the recorded phone message or push notification. This would assist the employer in an argument that it is unreasonable for an employee to refuse to monitor for this contact.

However, the challenge for the employer in this scenario is the requirement for the employee to respond by acknowledging the messages, particularly if it needs to be done within a certain timeframe after receipt of the message. 

This has the potential to be highly disruptive for the employee because it means they need to be actively monitoring in order to respond to the message within the prescribed timeframe. 

The rationale for the employer requiring acknowledgment is not stated – if it relates to safety, then that should be addressed at commencement of work the next day. This acknowledgment seems like a “nice to have” for the employer rather than being essential.

If an employee is routinely failing to turn up to the correct site, that is an issue to address with that particular employee rather than establishing a general requirement that is so disruptive. 

Absent a compelling justification to require the acknowledgment, it is likely it would not be unreasonable for an employee to refuse to do this, provided they read the message (which might not be until the next morning) and act in accordance with it ahead of the first job the next day. 

The right for an employee to refuse would be strengthened if the messages are sent late into the evening (especially after 9pm), potentially compromising the ability of the employee to sufficiently rest before work the next day, creating a safety issue.

“This scenario shows employers should be reviewing global collaboration practices to avoid cross-border issues in relation to employee contact.” – Aaron Goonrey, Partner, Pinsent Masons

Scenario 2: Contact during shutdown periods 

During the school holidays, a parent escalates a complaint about an incident during a recent school excursion. In response, the state education department contacts the school requesting a written response to the complaint, outlining what happened and how the activity was supervised, within five days.

The principal contacts the teacher who supervised the activity and wrote the original report, asking for clarification on how the incident was managed. 

The teacher does not respond to the messages until returning to work after the holidays, explaining that he was on leave and exercising his right to disconnect. 

However, the lack of response meant the school was unable to confirm key details about the incident before responding to the department.

Response from Amy Zhang, Team Leader and Executive Counsel at Harmers Workplace Lawyers

Employers cannot adopt a one-size-fits all-approach. Consideration will need to be given to factors including (but not limited to):

• The nature of the matter and whether it is truly and objectively urgent
• The nature of the shutdown period (for example, is the employee on annual leave, or is it a special or discretionary paid leave period?)
• Whether the contract or any policies set out entitlements and/or obligations around urgent contact during a shutdown period or during certain types of leave scenarios
• The position of the employee and the level and nature of their remuneration
• The nature of the contact made and whether the contact made the nature of the urgent matter and the reason for urgency clear
• Where the employee was at the time
• Whether the contact was in response to the exercise of a legal right or power or a response was required by law (e.g. responding to a WHS notice from the regulator) 
• Any family or personal circumstances or commitments applicable at the time of the contact or attempted contact. 

In the above scenario, matters that would need to be considered in assessing whether it was reasonable for the employee to have not responded include:

• If the employee was in a remote location on holiday with limited reception
• If the employee was on annual leave, or was not considered as being on leave and was expected to be contactable
• If the contract or policies provided an obligation to respond in such circumstances
• Whether the incident related to an issue of child safety
• Whether the request by the department for a response was pursuant to any statutory or regulatory powers, entitlements and timeframes
• Whether there was an ability to seek an extension for the response to the department, or provide a supplementary response following the return of the teacher following the shutdown period
• The consequences of failing to respond to the department on time or in a fulsome manner
• The manner of attempted contact (was it by phone, text and email?) and whether it was made clear what the matter was about and the reason for the urgency
• If the employee had carer’s responsibilities or other personal circumstances that made it difficult or impossible to provide a substantive response. 

For example, if the employee was in remote Africa with no or limited ability to receive calls, messages and emails, that would make it more reasonable for the employee not to have responded. 

If, however, the employee was simply at home with no other commitments, and was informed that the department was seeking an urgent response because it related to a child safety issue that they may need to report to other authorities as soon as possible, and chose not to respond simply because they did not want to do any work while on holiday, those circumstances would make it more unreasonable for the employee not to respond. 

Ultimately, an employer will need to weigh up all of the circumstances at hand for the purpose of assessing reasonableness. 

In situations that are less clear cut, legal advice should be sought before proceeding with any disciplinary or adverse action, given the potential claims that may be available to an employee arising from a valid exercise of the right to disconnect. 

Scenario 3: Working across multiple time zones

An Australian marketing manager is seconded to a project team based in New York. While she remains employed by an Australian company, she is working New York hours as part of the project team. 

During a critical stage of the project, she sends several emails late in the evening Sydney time asking colleagues in Australia to confirm key details for a project deadline just hours away.

Some team members in Australia do not see the messages until the following day. They say they were exercising their right to disconnect and were not monitoring work communications outside their usual hours.

As a result, the team misses the internal deadline and the client raises concerns about the delay. The Australian-based team is called into a performance meeting the next day and given a formal warning for not responding to the issue in a more timely manner.

Response from Aaron Goonrey, Partner at Pinsent Masons:

Employers can only reasonably expect employees to monitor or respond to after‑hours communications where the expectation is reasonable, clearly communicated and genuinely required.

In this scenario, several factors are relevant:

• If the employees are working on a time‑critical project where real‑time collaboration across time zones is essential, it’s more likely to be reasonable for the employer to expect some flexibility around after‑hours responsiveness.
• The employer should have set clear expectations upfront. For example, informing the Australian‑based team that during this particular project phase, critical issues may arise outside standard hours and that they may be required to check communications.
• The Right to Disconnect does not prohibit after‑hours contact. The key question is whether the attempts to contact the employee and any expectation of a response were reasonable. A time‑sensitive deadline during a critical project milestone, where the employees were directed to be on standby, will generally weigh in favour of reasonableness.
• If the employer had no system in place to manage time‑zone clashes (e.g., an on‑call roster, staggered shifts or clear escalation channels), it becomes harder to justify disciplinary action. Employers need to proactively manage global work patterns and not rely on ad hoc out‑of‑hours responsiveness.
• Issuing a formal warning in these circumstances may be extremely problematic if expectations were not clearly notified or defined in advance. Employers carry the burden of articulating what “reasonable” looks like in a cross‑border context. An employee does not need to lodge an application or notify anyone to exercise the right – they simply do not respond.

A refusal may be unreasonable having regard to a number of factors, including:

• The reason for the contact or attempted contact
• How the contact is made and the level of disruption it causes
• Whether the employee is compensated or paid an allowance to remain available outside ordinary hours
• The nature of the employee’s role and level of responsibility
• The employee’s personal circumstances, including family or caring responsibilities.

If a dispute arises about whether a refusal is unreasonable, either party can apply to the FWC. The Commission can deal with the dispute by conciliation, mediation, or, if those processes fail, arbitration. 

The Commission has the power to make orders, including orders that an employee must respond to contact, or that an employer must cease contacting an employee outside of hours. 

An employer must not take adverse action against an employee for exercising (or proposing to exercise) the Right to Disconnect. Doing so could expose the employer and the Marketing Manager to a general protections claim, which carries significant risk, including civil penalties.

If any of these employees are covered by an award, enterprise agreement or have specific contractual provisions dealing with hours of work or out-of-hours contact, those instruments will also need to be considered. 

The Right to Disconnect does not operate in a vacuum, and existing industrial and/or contractual arrangements may either support or complicate the employer’s position.

This scenario shows employers should be reviewing global collaboration practices to avoid cross-border issues in relation to employee contact. 

Ultimately, the Right to Disconnect is as much a workplace cultural issue as it is a legal one. Organisations that rely on an “always-on” culture will need to have honest internal discussions about how they structure global teams, what they actually expect of people, and whether those expectations are sustainable.

All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.

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