Australia’s first published Right to Disconnect decision draws a line between putting pressure on employees to respond and actually preventing them from switching off. Here’s what HR needs to know.
Australia’s Right to Disconnect has been tested for the first time in an employment tribunal, giving employers a clearer picture of when out-of-hours contact becomes unreasonable.
An employment tribunal found that a hairdressing salon owner put pressure on an apprentice to respond to out-of-hours messages, but did not breach her Right to Disconnect.
The apprentice and another plaintiff alleged the salon had breached several workplace rights, including the Right to Disconnect under the Hair and Beauty Industry Award, but the tribunal rejected both claims.
The case draws an important distinction between making employees feel pressured to respond and actually preventing them from disconnecting.
“What emerges from these decisions is that, contrary to popular belief, the Right to Disconnect is not just about employers contacting employees out of hours,” says Michael Byrnes, Partner at law firm Swaab. “It’s about employers unreasonably requiring employees to monitor, read and respond to that contact.”
Below, Byrnes unpacks what the case can teach HR about how the Right to Disconnect operates in practice, and where some key questions remain unanswered.
Why the pressure to respond didn’t cross the line
The case centred on whether the salon owner’s out-of-hours contact actually prevented the apprentices from exercising their Right to Disconnect.
One apprentice said the salon owner frequently sent her TikTok and Snapchat videos outside work hours, including videos about her social life and some non-urgent work matters.
If she did not respond, she said the owner would be in a bad mood and ignore her when she returned to work.
The tribunal accepted that this behaviour put pressure on the apprentice to respond.
“[However], a mere expression of disapproval is not likely to be enough to enliven the provisions. There needs to be some disciplinary action that has been threatened or taken,” Byrnes says.
The owner also asked the apprentice to take the salon’s mobile phone home over a long weekend and monitor messages without pay. The apprentice took the phone but made clear she would not monitor it. She did not face any apparent consequences for refusing.
As a result, the tribunal found that the owner’s behaviour discouraged the apprentice from disconnecting, but did not prevent her from doing so. The second apprentice’s claim was rejected on the same basis.
“Because of the Right to Disconnect provisions, employers will think twice about requiring employees to respond to out-of-hours contact… And employees are more emboldened to say, ‘No, I’m not going to respond out of hours.’” – Michael Byrnes, Partner, Swaab
What can HR learn from this case?
This is the first Right to Disconnect dispute to result in a published ruling since the law came into effect in August 2024. Another case was due to be heard in April, but settled on the morning of the hearing.
“There was an expectation expressed by some commentators that there’d be a whole lot of litigation and cases arising from the Right to Disconnect. But that just has not happened,” says Byrnes.
The Fair Work Commission has even delayed its own review of the Right to Disconnect provisions because there has been so little case law to consider.
That said, AHRI research published last year found that more than half of employers said the Right to Disconnect had improved engagement and productivity at their organisation.
“It seems it has had a cultural impact,” says Byrnes.
“Because of the Right to Disconnect provisions, employers will think twice about requiring employees to respond to out-of-hours contact… And employees are more emboldened to say, ‘No, I’m not going to respond out of hours.’”
He stresses that the case mentioned above can’t be used as a rulebook for future cases, particularly since some important aspects of the Right to Disconnect were not tested. For example, the tribunal did not need to weigh up whether it was reasonable for the apprentice to refuse to engage with the contact in the first place.
“In this case, it would be almost impossible for the employer to argue that the employee had unreasonably refused to monitor, read or respond to [the TikTok and Snapchat videos], because there’s no compelling business or operational reason for sending it to the employee,” he says.
“If there had been some major incident or problem at the salon that required out-of-hours contact, that might have been a different story.”
What this decision does tell HR is that the circumstances around out-of-hours contact matter. That includes both why the contact was made and what happens when an employee chooses not to engage.
As a result, it’s crucial to look beyond formal policies and consider what employees are actually experiencing. Are managers sending messages late at night? Are employees expected to monitor work phones? Does anyone face criticism or disadvantage for not responding? And are there legitimate reasons why some roles require after-hours availability?
Asking these questions can help HR identify where the organisation’s day-to-day practices may be creating an expectation of after-hours availability, even if its formal policies say otherwise.
Helping managers navigate after-hours contact
Given that managers are the ones making many of the day-to-day decisions about after-hours contact, they need much more than a copy of the organisation’s Right to Disconnect policy.
“It is an area where HR people and culture should be undertaking training with their managers,” says Byrnes. “And not just to emphasise their obligations under the Right to Disconnect provisions, but also to empower them to manage employees who might have an inflated sense of entitlement when it comes to the Right to Disconnect.”
Some employees and managers still hold the misconception that the Right to Disconnect is a blanket ban on out-of-hours contact, he explains, and failing to educate both parties can cause confusion and exacerbate workplace disputes.
Byrnes recommends giving managers some simple guiding principles for deciding when and how to contact employees outside working hours.
First, managers should ask whether the contact is genuinely necessary or whether it can wait until the next working day.
Second, they should consider the imposition they are placing on an employee by creating an expectation that they monitor, read and respond to the contact.
Third, where after-hours contact is genuinely necessary, managers should consider how they can minimise the intrusion – particularly where the employee is not specifically compensated or expected to be on call.
“Think before you contact,” he says. “There are going to be some situations and some positions where out-of-hours contact and an expectation of some kind of response is going to be appropriate. But, if you are going to require someone to monitor, read and respond, do it in a way that minimises the intrusion. Have respect for people’s time out of hours.”
🧰 HR’s career resource toolkit
- Article: 3 Right to Disconnect dilemmas and how to respond
- Article: How to communicate with clients about the Right to Disconnect
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