First Right to Disconnect case raises eyebrows, but not precedents

After being implemented in August 2024, the Right to Disconnect (RTD) has been included in an unfair dismissal claim put forward by a Queensland primary school teacher for the first time since its inception.

The former Cairns Hinterland Steiner School teacher has filed an unfair dismissal claim to the Fair Work Commission (FWC) after she was fired over allegations of misconduct. At the time of her dismissal, the school required the teacher to respond to these allegations during school holidays – a time when she was not obligated to work.

The teacher alleged that the requirement for her to respond to such allegations during her holidays infringed on her right to disconnect, which offers employees the “right to refuse to monitor, read or respond to contact (or attempted contact) outside of their working hours unless that refusal is unreasonable”.

With this being the initial introduction of the RTD, the media frenzy and employer concerns were quick to arise. HR Leader spoke to Sean Melbourne, director of Source Legal and Workplace, about the case – providing some clarity on its significance.

“When the right to disconnect was introduced, a lot of us employment lawyers (including myself) commented that the right to disconnect was unlikely to have a big impact in a legal sense, but we would probably see it used tangentially as a ground of complaint in adverse action claims. This is one of those cases,” he said.

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“The starting point is that an employee won’t have a claim against an employer just because they contact them outside of working hours, including when they are on holidays.

“The right to disconnect rests with the employee and doesn’t place obligations on the employer not to contact them. An employer would only be under an obligation not to contact the employee if they have obtained a no-contact order from the Fair Work Commission. That’s not what happened here.”

According to Melbourne, the basis of the case solely depending on a breach of the RTD isn’t an accurate reflection of the teacher’s dispute. Instead, the teacher made a number of workplace disputes that happened to involve an RTD claim.

“On the surface, it doesn’t look like a strong case because the disciplinary action was well in chain by the time she exercised her right to disconnect, so it may not be difficult for the school to prove that it dismissed her because of the alleged conduct and not because she exercised a workplace right,” said Melbourne.

“It’s also worth noting that the teacher claims she exercised her workplace rights in many ways, including by making various complaints about her employment. Exercising her right to disconnect is one of the many instances she is alleging.”

“This is the nature of how these claims are often framed – the employee rolls up all the different ways they have exercised their workplace rights and alleges that they were dismissed because of that. The employer then has the onus of proving that this was not a substantive or operative reason for making the decision to terminate.”

In terms of future concerns for employers, Melbourne claimed that the RTD’s involvement in cases moving forward would act as a side dish, rolled up with other grievances rather than being the basis of a standalone application.

“We’ll definitely see more, as employees often roll everything they can find up into their employment claims. So, if there is an exercise of the right to disconnect somewhere, they will likely include it in the claim. There’s often little basis to them, but because of the reverse onus of proof, employers then have to prove that it didn’t factor into their decision,” said Melbourne.

“A similar thing has been happening with the maximum hours of work provisions in the Fair Work Act. They say that an employee can’t work more than 38 hours per week, unless the additional hours are reasonable.

“The provisions don’t get used on their own very much, but there have been a few adverse action claims where the employee has claimed that they were dismissed because they questioned their working hours, and therefore exercised their workplace right to only work reasonable additional hours.”

According to the teacher’s application, she is seeking $730,000 in lost income and a further $50,000 for hurt and humiliation.

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