When it was introduced, the right to disconnect raised concerns among some employers, particularly about how it would play out in practice. It was widely publicised as a significant change, representing a shift in the rights and obligations of employers and employees.
Two years on, very few disputes have been raised regarding the right to disconnect, and planned reviews have had to be postponed by the Fair Work Commission (“FWC”) due to the lack of cases.
However, some useful insights can be found in the first decision involving the right to disconnect, which clarified what employer conduct amounts to a breach of the right.
Background
The employee worked in the beauty industry, and her employment was terminated after 16 months. The employee then alleged several breaches of the applicable award by her employer, including a breach of the right to disconnect.
The employee claimed that the employer had breached the right to disconnect by sending her Snapchat and TikTok videos about the employer’s social and dating life outside of working hours, as well as requiring the employee to take the salon phone over a long weekend to respond to messages when she was not working. The employee took the phone, but said she would not monitor it.
The employee further alleged that the employer responded “unfavourably” by ignoring her at work when she failed to respond to messages.
The Tribunal decision
The right to disconnect allows an employee not to monitor or respond to contact outside of working hours unless the refusal is unreasonable. Several factors may be taken into account in determining whether a refusal is unreasonable, including the reason for the contact, any compensation the employee receives and the nature of the role.
The South Australian Employment Tribunal (“Tribunal”) ultimately found that while the contact was “unpleasant and intrusive” and caused the employee to feel pressure to respond, the employee had not been prevented from disconnecting. Accordingly, the employer had not breached the right to disconnect.
The Tribunal placed heavy weight on the employer’s actions noting that the employee “was not subject to any consequence when she did not respond, and there is no other evidence of the respondent attempting to prevent the applicant from not responding.”
Implications for employers
The key takeaway for employers is that there is a distinction to be drawn. The right to disconnect is the right to refuse to monitor, read or respond to contact outside of working hours, unless that refusal is unreasonable. It is not concerned with whether the employer communicated repeatedly outside of work, whether the contact was unpleasant or intrusive, or whether the employee felt pressure to respond.
It is important to remember that this is only the first decision. The scope of the right will continue to be clarified as further matters come before the tribunals and the FWC.
You can read more about the right to disconnect in our article here and Ausbiz interview with Joydeep Hor here.
