The right to disconnect is a Fair Work protection that lets you refuse to monitor, read or respond to contact from your employer outside your working hours, unless that refusal is unreasonable. It started for most employers on 26 August 2024 and extended to small business employers on 26 August 2025, so it now covers every national system employee in the country.
The word doing all the work in that sentence is “unreasonable”. The law does not stop your boss sending the message. It protects your decision not to answer it. Whether that decision is protected depends on your role, what you are paid, why they contacted you and what was going on in your life at the time.
Do I have to respond to my boss on my day off?
No, in most cases. Under section 333M of the Fair Work Act 2009 (Cth), you can refuse to monitor, read or respond to contact or attempted contact from your employer outside your working hours, unless refusing would be unreasonable. The same protection covers work related contact from third parties, such as clients or members of the public.
Refusing is far more likely to be unreasonable if you are paid an on call or availability allowance, if you are rostered on call, or if the contact is a genuine emergency. If a law requires the contact to be made, refusing is unreasonable, full stop.
Three scripts you can copy
Keep replies short, factual and unapologetic. You are exercising a right, so there is no need to explain where you were or what you were doing.
Low urgency: the polite deferral
Hi [Name], I’ve seen this. I’m offline until [day/shift] and will make it my first priority when I’m back at [time].
Moderate urgency: the clarification
Hi [Name], I’m off the clock at the moment. Is this something that needs resolving tonight, or can it wait until my shift starts at [time] on [date]?
Chronic after hours contact: the boundary
Hi [Name], I’m logging off for the weekend so I’m rested and in line with our working hours. I’ll review emails and messages when I’m back at [time]. If something urgent comes up, please follow the on call process.
What to do when the message lands
- Assess the urgency honestly. Is this a genuine emergency, a roster change that affects tomorrow, or a routine question that could have waited?
- Check your contract and roster. Are you paid an availability or on call allowance? Are you rostered on call? If yes, ignoring it is a different risk entirely.
- Reply once, briefly, using a script above, or don’t reply at all if the contact is routine. Either is open to you.
- Turn off notifications outside your hours. Do Not Disturb schedules and work profile modes on your phone do this automatically.
- Keep a short record of the date, time, sender and subject of after hours contact. If this becomes a pattern, that record is the evidence.
The most common mistake: over apologising. “I’m so sorry, I was at a family dinner” invites a debate about whether your evening was important enough. You do not owe anyone a reason. Keep it professional and unemotional.
When is refusing contact actually unreasonable?
Where the contact is not required by law, certain matters have to be weighed up in deciding whether your refusal was unreasonable. The Act lists five, and they work as a rough self assessment.
| Factor | Points towards your refusal being reasonable | Points towards unreasonable |
|---|---|---|
| Reason for the contact | Routine update, non urgent question, work that could wait | Genuine emergency, urgent roster change, safety issue |
| How you were contacted and how disruptive it was | One email you saw the next morning | Repeated calls at 11pm, messages through the night |
| Whether you are paid to be available | No allowance, no on call roster | On call allowance, availability payment, annualised salary that expressly covers out of hours work |
| Your role and level of responsibility | Hourly or award covered role with set hours | Senior leadership role where out of hours judgement calls are part of the job |
| Your personal circumstances | Caring responsibilities, illness, pre booked leave | Nothing preventing a quick reply to something urgent |
There is at least one situation the Commission has already ruled out. In Pringles Ag-Plus Pty Ltd (t/as Emmetts) v Daws [2024] FWC 3545, an employer contacted employees asking them to prepare witness statements for a Fair Work Commission matter. The Commission found the right to disconnect did not apply, on the basis that there is no right to disconnect from a proceeding in the Commission. If you are already involved in a Commission case, whether as a party or a witness, treat correspondence about that case as something to deal with promptly regardless of the hour.
If you are an hourly or award covered worker: the position is close to clear cut. Clock off, log off, and respond when your next shift starts.
If you are a salaried manager: the honest answer is that your level of responsibility and pay both cut against you. The safer approach is to set a visible, predictable communication window rather than going dark, for example checking email once at 8pm for fifteen minutes and being clearly offline after that. Predictability is what stops out of hours contact escalating.
Can my employer see everything I do on a work device?
Assume yes. If you are using a company laptop or phone, emails, browsing history, files, keystrokes, screenshots and location can all be captured by monitoring software. The real question is not whether they can, but whether they told you first, and that depends on which state you work in.
New South Wales and the ACT have specific workplace surveillance legislation, and under both, written notice must be given at least 14 days before surveillance starts. The notice has to be specific. It must say what kind of surveillance is being used, how it will be carried out, when it starts, and whether it runs continuously or on and off. In both jurisdictions, computer surveillance is only permitted where the business has a workplace surveillance policy covering it. Queensland, Victoria, South Australia, Western Australia, Tasmania and the Northern Territory have no equivalent standalone workplace surveillance Act, and surveillance there is governed by the general surveillance devices legislation in each state.
Check which rules apply where you work before assuming you were monitored unlawfully. A Sydney employee and a Melbourne employee doing identical work have quite different protections.
How to find out what is running on your device
- Ask for the policy. In NSW and the ACT this is the fastest route, because computer surveillance without a policy is a compliance problem for the employer. Request the workplace surveillance policy and any surveillance notice you were given, in writing.
- Check your device management profile. On an iPhone, go to Settings, then General, then VPN and Device Management. On Android, look under Settings, then Security, then Device Admin Apps. A profile installed by your employer generally means they can push apps, see device information, track location and remotely wipe the phone.
- Check screen recording permissions. On a Mac, System Settings, then Privacy and Security, then Screen Recording shows which applications have permission to capture your screen. Windows users can review Settings, then Privacy and Security, then Camera and Microphone.
- Watch the indicator lights. An orange dot on a Mac means the microphone is live and a green dot means the camera is. Most laptops have an LED beside the webcam that does the same job.
The practical rule: treat every company device as visible. No personal banking, no private medical searches, no venting about your manager over Teams or Slack. Assume traffic across a company network or VPN is logged, and keep personal matters on a personal device.
Raising after hours contact with HR without damaging your position
HR exists to manage risk for the business. That does not make them your enemy, but it does mean the way you frame a complaint changes how it gets handled.
The goal is specific, factual, written communication. Vague or emotive complaints are easy to file away as a personality clash. Dated, quoted, documented ones are not.
| Instead of | Try |
|---|---|
| “The constant messaging is doing my head in.” | “Between 1 and 30 June I received 34 work messages outside my rostered hours, including 11 after 9pm. Dates and times attached.” |
| “This place is toxic and I’m looking elsewhere.” | “I’d like clarity on the out of hours contact policy and how the right to disconnect applies to my role.” |
| “My manager’s behaviour is unacceptable.” | “On 14 July at 10.42pm, [Manager] sent the following message: [quote]. This was the fourth after hours contact that week.” |
One important qualification. If after hours contact is affecting your health, say so, in writing, and put it in a factual form. There is a persistent piece of internet advice that employees should hide the health impact of workplace conduct from their employer. That advice can cost you. Your employer has a safety duty that covers unreasonable work demands, not just physical hazards. A documented health impact can also matter later, in a workers compensation claim, a discrimination complaint or a general protections claim. Describe it clinically rather than emotionally (“my GP has recorded elevated stress related symptoms and I’ve attached the certificate”), but do not bury it.
Signs you are being pushed out for switching off
Count how many of these have happened in the last 30 days.
- You were put on a performance improvement plan shortly after refusing after hours work
- You have been dropped from meetings you previously attended
- Your duties, hours or reporting line have changed without consultation, which can amount to constructive dismissal
- Minor errors are suddenly being documented and escalated
- Shifts, overtime or opportunities have quietly dried up
Two or more of these, in a clear sequence after you exercised the right, is worth a conversation with an employment lawyer.
What happens if you are punished for disconnecting
Two avenues exist, and they work differently.
A stop order. Disputes about the right to disconnect are meant to be raised at the workplace first. If that fails, either side can apply to the Fair Work Commission, which can hold a conference, arbitrate by agreement, or make an order to stop the conduct. That includes ordering an employer to stop requiring out of hours contact, and ordering an employee to stop unreasonably refusing it.
A general protections claim. The right to disconnect is a workplace right under the Fair Work Act, and an employer cannot take adverse action against you because you exercised it. Adverse action includes dismissal, demotion and being passed over for promotion. In a general protections claim the employer carries the burden of proving the reason for its conduct, which is known as the reverse onus, and there is no cap on compensation for economic loss. If you were dismissed, the lodgement window is 21 days from the date the dismissal took effect, and it is strictly enforced.
The predicted flood of right to disconnect claims never arrived. The Fair Work Commission’s 2024-25 annual report records just seven applications under the right to disconnect dispute provisions for the entire financial year. For comparison, bullying and sexual harassment applications hit a record 1,037 over the same period. The Commission received 44,075 lodgments in total that year.
Seven, out of forty four thousand. The right is not functioning as a standalone complaint mechanism. It is functioning as a shield inside other claims, which changes how you should prepare. The notes you keep at the time, recording after hours contact and what changed at work afterwards, are doing far more work than the stop order process is.
Dismissed by an out of hours email? The 21 day clock may start later
The sharpest practical use of the right so far has nothing to do with stop orders. It is about the clock on an unfair dismissal claim.
In Peter Clark v The Trustee For Pausco Trust, an employer emailed a termination letter on a Friday night at 7:39pm, outside the employee’s normal working hours. He did not read it until the next day, and lodged his unfair dismissal application 21 days after he became aware of the termination. The employer objected that the claim was a day out of time. The Commissioner disagreed. Referring to the right to disconnect, he found it was reasonable to assume the employee was not required to monitor his emails outside working hours. The dismissal therefore took effect on the day the employee became aware of it, and the application was in time. The decision is reported as Peter Clark v The Trustee For Pausco Trust [2025] FWC 901.
That matters to anyone who has ever been let go by an out of hours email, which is a surprisingly common way for it to happen. It does not create a general extension of the 21 day deadline, and no one should rely on it as a reason to wait. But if you were dismissed by a message sent outside your working hours, when the clock started running is arguable, and you should raise that with a lawyer rather than assuming you have missed your chance.
Where to get advice on your situation
If you are being contacted constantly outside your hours, or something has changed at work since you started pushing back, the timing of what you do next matters. Dismissal related claims move on short deadlines and the evidence you gather in the first fortnight tends to decide the case.
Fair Workplace Solutions is a specialist employment law firm. We act for employees across Australia in general protections, unfair dismissal and workplace rights matters, and we speak in plain English rather than legalese.
Talk to an employment lawyer about where you stand. Call us on 1800 565 975 or book a consultation.
This article is general information only and is not legal advice. Employment matters turn on their specific facts, and workplace surveillance rules in particular vary between states and territories. Please seek advice about your own circumstances before acting.