The case of a Queensland teacher suing her former employer for alleged wrongful dismissal has been tipped to become a de facto litmus test of the federal government’s “right to disconnect” laws – but one expert has warned that may not be the case.
The teacher has reportedly claimed she was fired her after she refused to respond to allegations of inappropriate behaviour during school holidays.
The Australian Financial Review reported that the school demanded she nonetheless respond, which the teacher refused to do, resulting in the school finding the behaviour claims were substantiated.
The teacher has also reportedly claimed she was targeted by the school because she had raised issues around child safety.
In her claim in part, the teacher reportedly accused the school of breaching her right to disconnect.
The law, passed by the Albanese government last year, grants employees the right to refuse to monitor, read or respond to contact or attempted contact from employers or a third party, unless that refusal is unreasonable, as in the case of a work-related emergency.
Workers also can’t be disciplined or fired for refusing contact outside of work hours.
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Employers can be fined up to $18,000 for violating the regulations.
RMIT University School of Law Professor Shelley Marshall said the Queensland case could raise the profile of the law, but was unlikely to provide a definitive interpretation of its legal limits.
“While the right to disconnect is a high-profile and novel element of this case, it’s important to recognise that it’s only one aspect of the teacher’s broader legal claim.,” she said.
“However, applying the law in practice is complex. In industries with genuine operational needs outside regular hours, such as education or emergency services, the line between necessary communication and unlawful overreach is far from clear.
“The proceedings appear to involve multiple alleged breaches, including unfair dismissal and general protections under the Fair Work Act.”
She said, the outcome could hinge less on the right to disconnect itself and more on whether the dismissal was unlawful for other reasons, “such as procedural unfairness or retaliation for exercising a workplace right”.
What are the right to disconnect laws in Australia?
Employees have the right to refuse to monitor, read or respond to contact or attempted contact from employers or a third party, unless that refusal is unreasonable, like in the case of a work-related emergency.
Employees also can’t be disciplined or let go for refusing contact outside of work hours.
If an employee feels these rights have been violated they should raise it first with their employer, then with the Fair Work Commission if internal mediation doesn’t work. Employers found to be in violation of the new laws can be fined up to $18,000.
What are the exceptions to the right to disconnect?
While employees can refuse contact from employers where reasonable, what counts as reasonable is up to interpretation.
Several factors must be taken into consideration when deciding what is reasonable, including but not limited to:
- The reason for the contact
- How the contact is made and how disruptive it is to the employee
- If the employee is compensated for working outside normal work hours
- The employee’s role and level of responsibility
- The employee’s personal circumstances, including family and caring responsibilities
Aussies with a reasonable additional hours clause already in their employment contract may not be able to invoke the new protections.
These clauses are common in white collar jobs and allow employers to direct their employees to work overtime without additional pay, and could be used to “override” right to disconnect rules.
