WRITTEN BY Rebecca Richardson & Sonya Paul
The recent introduction of the “right to disconnect” provisions into the Fair Work Act 2009 represents a significant step towards rebalancing work and personal life in Australia. However, these new rights also give rise to complex legal and practical questions. One grey area is whether employees can rely on the right to disconnect to disengage from misconduct investigations, which, while employment-related, may not directly involve day-to-day job duties.
This issue is front and centre in a case currently before the Federal Court involving a teacher whose employment was terminated following allegations of misconduct.[1] Upon receiving notice of the allegations, the teacher, who was on annual leave, requested an extension of time to respond, arguing that engaging with the process during her leave was inconsistent with her right to disconnect.
Her employer denied the request and proceeded with termination of her employment before she had responded. The teacher has since launched an adverse action claim, seeking $730,000 in lost earnings and $50,000 for emotional distress.
While the case involves multiple legal issues, including whether the teacher was validly on annual leave, its broader relevance lies in the questions it raises about the extent to which the right to disconnect applies during disciplinary processes.
From 26 August 2024, the Fair Work Act 2009 (the Act) gave most Australian employees the right to disconnect from work outside their regular hours. This includes a right to ignore unreasonable after-hours communications from employers or work-related third parties. This entitlement will extend to small business employees from 26 August 2025.
The aim of the law is to safeguard employee wellbeing, reduce burnout, and reinforce work-life boundaries. However, the right is not absolute. Under the Act, an employee’s refusal to engage must not be unreasonable.
The Act outlines several factors to determine whether refusing contact is unreasonable:
There is only limited case law applying these provisions, making the practical limits of the right to disconnect largely open to interpretation and determination.
The tension between a right to disconnect and disciplinary obligations is particularly stark in misconduct investigations. These often arise while employees are on leave, whether due to suspension, illness, or annual leave.
Can an employee refuse to engage in an investigation on the basis that they are exercising their right to disconnect?
There is no question that a suspended employee would still be liable to participate in a misconduct process while on suspension. In this scenario, there is no direction from the employer to work outside of the employee’s ‘working hours’.
Our view is that the right to disconnect does not affect the employer’s ability to direct an employee to respond to allegations during suspension.
Sick leave entitles an employee to rest and recover from illness or injury. However, this doesn’t give blanket protection from communication with the employer – and this includes communication around misconduct processes.
It is not uncommon for stressed employees to commence extended personal leave when notified that they are the subject of a misconduct investigation. Unless an employee provides express medical evidence that they are unfit to participate in the investigation, the usual course of action is to require the employee to respond to the allegations.
Such requirement has of course always been required to be ‘reasonable’. However, the statutory right to disconnect arguably strengthens an employee’s ability to ‘push back’ on any requirement to respond to a misconduct investigation – or to at least require the process to be modified to accommodate them.
Annual leave is usually taken at a time agreed between employee and employer and is designed for rest and recreation.
There are several reasons why an employer should be cautious about giving an employee directions to participate in a misconduct process during annual leave:
In any case involving serious allegations or other urgency, such as a risk to other employees or the public, then an employer might justifiably expect an employee on annual leave to engage with an investigation, but this would obviously depend on the facts of the case.
As with requiring an employee to engage with a misconduct process during sick leave, the right to disconnect arguably further constrains an employer’s ability to do so.
Ultimately, the legal test at common law and statute revolves around ‘reasonableness’, which considers all the circumstances, balancing the employer’s and the employee’s rights and interests.
Importantly, while the right to disconnect is intended to promote healthy work-life separation, it does not give employees the right to ignore serious workplace matters indefinitely. Courts are unlikely to look favourably on a complete refusal to participate in misconduct procedures without good reasons, especially where the employer’s communication is proportionate and necessary.
Employers navigating this new legal landscape must strike a careful balance:
The right to disconnect was not designed to shield employees from accountability or due process. While it offers protections from unreasonable intrusion, it must be interpreted within the broader context of fair employment practices and lawful workplace procedures.
If you have any questions or queries about the information in this article, or if you are experiencing any issues and need advice, please contact us on 02 6274 0999.
[1] Michelle Andrea Martin v Cairns Rudolf Steiner School Ltd QUD148/2025.