What is unreasonable refusal? The “right to disconnect” still untested in Commission

Work shouldn’t follow you home after hours. We all deserve time to relax and unwind from the stresses of the workday. Yet as a consequence of the digital age, work has crept into our personal time, leaving us tethered to emails, messages and calls, creating a “digital leash.” This intrusion absolutely undermines a work-life balance, leading to burnout and general frustration.

While the ‘right to disconnect’ is a step forward in protecting this crucial boundary, there is still uncertainty about how it will be applied in practice. Despite being in effect for over half a year, the Fair Work Commission (FWC) has yet to test this right in any case. If you work for a small business (with fewer than 15 employees), your right to disconnect will come into effect later this year, from the 26th of August. When it does, you’ll have the same protections as employees in larger businesses, which will be an important further step in crystallising this work-life balance.  

What does the “right to disconnect” really mean:

Simply put, the right to disconnect doesn’t stop your employer from reaching out to you outside your normal contact hours. Instead, it gives you the ability to reasonably ignore these contacts without fear of repercussions. You do not need to feel obliged to monitor work emails, or answer calls and text messages outside your normal working hours, particularly if it is unreasonable to do so.

Reasonable vs unreasonable contact:

What counts as reasonable or unreasonable will vary depending on your job, level of responsibility, and whether there was prior agreement about after-hours contact. Factors like the urgency of the request, your personal circumstances (like family or carer responsibilities) and whether you are being compensated for being available outside of regular hours (or otherwise being “on-call”), all come into play. If contact or attempted contact is required by law, this will also be unreasonable to refuse.

• Reasonable Contact:

• Your boss needs urgent action because a critical system in your department has crashed, and the business will be at a standstill unless fixed right away.

• A customer-facing role where a client has a major issue that needs resolution to avoid long-term damage.

• A legal or health emergency where your immediate input or decision is required to mitigate risk.

• Unreasonable Contact:

• Your manager sends a message at 8 p.m. asking you to review and approve a non-urgent proposal for a project that won’t happen until next month.

• Receiving an email or message asking for updates on a project you’re working on when it’s clear there’s no immediate deadline or need for a response.

• A call to finalize a meeting time for next week when the issue could easily wait until the next workday.
  

Strategies to best exercise your right to disconnect:

If your boss reaches out outside of work hours, here’s how you can respond when the contact is unreasonable:

1.        Keep a record of requests: Document every instance where you’re contact outside of work hours. Log the time, date and nature of the request, as this information will be useful if matters escalate down the track.

2.        Set clear boundaries: Respond politely but firmly letting your supervisor know that you are exercising your right to disconnect. A simple, respectful message like: “I’m currently outside of my work hours and will attend to this during my next shift,” sets a healthy boundary without creating conflict.

3.        Raise the issue directly: If unreasonable contact continues, escalate this matter in writing. Let your HR department or boss know that you’re concerned about ongoing after-hours communications and are seeking clarity on expectations moving forward.

4.        Take action if necessary: Don’t hesitate to file a formal complaint if the issue persists or if exercising your right to disconnect results in negative consequences, such as termination, this will likely give rise to a general protections dismissal claim, being a breach of your general protections in the Fair Work Act, or an unfair dismissal claim if meeting the minimum employment period.

Empowering yourself:

Your time is valuable and deserves respect. While the right to disconnect may still be evolving in the workplace, it’s important to understand your rights now and stand firm when necessary. No one should expect you to be constantly available outside your hours. Whether it’s a trivial request or an emergency, understanding the difference will empower you to maintain your personal time and well-being.

If you ever feel unsure about how to handle a situation or if you feel your right to disconnect is being violated, remember—you’re not alone. Workplace Justice is here to provide you with support and guidance every step of the way.