The new Right to Disconnect is set to be tested in court for the first time, nearly a year after it was introduced.

The right, which aims to prevent workers from being punished for not responding to unreasonable work-related communications outside of standard work hours, has been included in a Queensland teacher’s unfair dismissal claim against her former employer.

In a statement of claim filed in the Federal Court, the teacher claims that she was in part fired because she utilised her Right to Disconnect and did not respond to communications from the school during school holidays.

It’s the first time that the new right has been included in a public legal action and could potentially serve to set a precedent in relation to the scope of the Right to Disconnect and what constitutes “unreasonable” communications.

Communications during school holidays

The case has been filed by a former teacher at Cairns Hinterland Steiner School in Queensland, who has alleged she was targeted by her employer because she had made complaints about child safety at the school, and against someone who was reviewing the school and its staff, as the Australian Financial Review reported.

After taking leave due to stress, the teacher was sent misconduct allegations during school holidays, with the school requiring her to respond during that time.

The teacher objected to doing so outside of her work hours, citing the Right to Disconnect.

According to the court filings, she said she had a right to “refuse to monitor, read or respond to contact, or attempted contact, from an employer during the entire period…unless the refusal was unreasonable”.

With the teacher not responding to the allegations, the school found that they were substantiated and proposed to fire her.

“There were numerous concerns raised of unacceptable behaviour and conduct in your role as a class teacher and staff member,” the school said in a termination letter.

“The volume of complaints and concerns showed a repeated pattern of inappropriate and unacceptable conduct.”

The teacher’s claim alleges that the decision to sack her “directly or indirectly prevented the applicant from exercising her Right to Disconnect”.

Employees are under no obligation to respond to work communications outside of their standard working hours. Photo: Shutterstock

In response, the employer said the teacher’s claim about the Right to Disconnect was “vague and ambiguous” and has attempted to have it struck out.

The teacher is seeking nearly $800,000, saying that if not for her dismissal she would have stayed in the role for six years and earned $730,000.

She is additionally pushing for $50,000 in damages for hurt and humiliation.

Raising the profile

Hopgood Ganim Special Counsel, Workplace and Employment, Adele Garnett said the case may provide some guidance to businesses on how the Right to Disconnect works in practise.

“This does seem to be one of the first cases to test the workplace Right to Disconnect, so it could well provide some guidance to employers on the boundaries of the entitlement if it proceeds,” Garnett told Information Age.

“However, there does seem to be a multitude of complex claims that the applicant is pursuing, with the Right to Disconnect being just one part of the claim.”

RMIT School of Law Professor Shelley Marshall agreed, saying the case may “raise the profile of the new Right to Disconnect, but it’s unlikely to provide a definitive interpretation of its legal limits just yet”.

“While the Right to Disconnect is a high profile and novel element of this case, it’s important to recognise that it’s only one aspect of the teacher’s broader legal claim,” Marshall said.

Garnett said there are lessons for businesses in the case though.

“My view is that an employer should err on the side of caution and not contact or expect contact from an employee when they are on approved annual leave, unless there are extenuating circumstances or some time pressures, particularly where an employee raises concerns about being contacted,” she said.

A report from earlier this year warned that the lack of implementation of the Right to Disconnect in formal policies was a “ticking time bomb” for Australian companies.

The survey conducted by HR software company Rippling found nearly three-quarters of the respondents’ employers had no formal policy or structure in place around the Right to Disconnect.

The report also warned about formal disputes in relation to the right once employees are emboldened and more educated about their rights.

The Right to Disconnect came into law in August last year after it was passed by Parliament earlier in 2024.

It now must be included in awards for employees at companies with more than 15 workers and will come into effect for smaller businesses later this year.

A report by the Centre for Future Work found that in the first three months after its implementation, overtime worked by the average Australian fell from 5.4 to 3.6 hours per week.

Then Opposition Leader Peter Dutton had proposed to scrap the Right to Disconnect during the election campaign, if his party won office.