The WorkPlace Collective | Navigating the Right to Disconnect: What Employers Need to Know
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Navigating the Right to Disconnect: What Employers Need to Know

Navigating the Right to Disconnect: What Employers Need to Know

Right to disconnect: reasonable or reckless? 

Is it reasonable or reckless to contact an employee who is absent on personal leave? The answer may surprise you.

We unpack the potential impacts of the “right to disconnect” legislative changes due to take effect later this year for some businesses. You can’t afford to ignore the impacts, particularly when it comes to absenteeism.

The Fair Work Act 2009 is being amended to create a formal workplace right allowing employees to disconnect from work outside their usual work hours. Employees will have the right to switch off and refuse to respond to, contact or attempt to contact their employer, or a third party outside their work hours, unless the refusal is unreasonable.

These changes are due to commence on 26 August 2024 for non-small business employers and 26 August 2025 for small business employers. If you are an employer with 15 or more employees, it is vital you are across the changes, including the addition of a right to disconnect clause in all modern awards.

Although the new laws may seem simple at first glance, when dealing with unwell employees, they can prove complicated. The WorkPlace Collective has prepared  guidelines and checklists to assist you to navigate these changes and assess how they are likely to impact you and your business.

In a Herald poll conducted in February 2024, 79% of readers supported the government’s right to disconnect laws that aim to stop unreasonable contact. A further 13% did not support the changes and 8% were unsure. Such public uncertainty is understandable given:

  • the law’s broad scope;
  • the absence of a definition of “unreasonable”;
  • overlapping and competing jurisdictions;
  • existing work health and safety and workers’ compensation rights;
  • proposed changes to Modern Awards incorporating the right; and
  • penalties stemming from breaches.

There are obvious benefits in terms of employee health and wellbeing. Employees who have properly rested and recuperated are more productive and are less likely to quit. This reduces costs associated with turnover, and improves employee engagement. However, the disadvantages for employers are less obvious from the outset.

Employers can be penalised for contacting employees outside their core working hours, including during periods of leave. This was confirmed in Brennan v BWP [2024] NSWPIC 165 a workers’ compensation case before the Personal Injury Commission. Continued attempts by a supervisor to contact an employee on leave were not reasonable.

The supervisor’s conduct contributed to the employee’s severe anxiety and led her to take further time off work. At least seven calls were made to the employee’s private mobile and several emails sent to her personal account over four days while the employee was absent on personal leave with rhinovirus.

The supervisor warned the employee that the matter could be escalated to “the cops”. The Tribunal ordered the employer to pay the employee ten months’ back-pay at 80% of the employee’s wage as well as ongoing treatment expenses due to the supervisor’s hostile conduct, which was deemed excessive, threatening and “highly inappropriate”.

The right to disconnect laws will allow for orders preventing employers from unreasonably contacting workers. This will make it more difficult to determine to what extent duty of care applies before the unreasonableness tipping point is reached, whereby penalties and compensation could apply.

In particular, employers need to carefully consider the impact their actions will have on an employee’s psychological safety, their workplace health and safety and general workers’ compensation rights. This requires a delicate approach and a fine balance between genuine care and concern, and hostile heavy-handedness.

In general, when contacting an employee out of usual business hours, employers should consider relevant factors such as:

  • the reason for the contact;
  • how the contact was made or attempted;
  • the level of disruption caused to the employee;
  • whether the employee is compensated to remain available after hours;
  • the nature of the employee’s role and responsibilities; and
  • the employee’s family and caring responsibilities.

All efforts should be made to resolve a dispute at the workplace level. Where this cannot be achieved, the FWC can issue orders that any unreasonable contact ceases, or that an employee ceases unreasonably refusing to respond to after-hours contact. Although the FWC cannot order financial compensation, other jurisdictions can.

The checklist below can assist in determining whether an employer’s actions in contacting an employee on personal leave may be deemed unreasonable.

If you are uncertain about any of the points below, please contact the WorkPlace Collective for clarification.

  1. The employee has communicated their absence
  2. The employee has communicated a reason for their absence and the reason seems genuine
  3. There is no urgency in terms of the work they perform
  4. There are no significant disruptions or business impacts resulting from their absence
  5. The employee has demonstrated a willingness to provide evidence of their illness or incapacity causing the absence (such as a medical certificate or statutory declaration)
  6. The employee has indicated the general nature of their illness or incapacity and it impacts their fitness for work
  7. The employee has (or intends to) provide/d an approximate length of their absence
  8. Work the employee usually performs could be undertaken by another/others in their absence
  9. The employee has no history of unexplained absence(s)
  10. The employee intends to return to their role and they are (or will be) fit to undertake the inherent requirements of their role

The WorkPlace Collective can assist your organisation to:

1. mediate to resolve disputes at the workplace level;

2. implement a suitable framework addressing employee concerns;

3. engage with employees and encourage open discussions about working hours;

4. update policies, procedures and contracts and ensure appropriate remuneration and best practice methodology;

5. draft provisions for enterprise agreements covering the right to disconnect;

6. set appropriate expectations for performance management discussions;

7. minimise health and safety and workers’ compensation risks; and

8. train supervisors and managers on how to best interact with employees on personal leave and minimise associated psychosocial hazards.

 

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