Right to Disconnect: What Actually Happens If Your Boss Calls After Hours? (2026)
The Right to Disconnect is now law. Learn what happens if your boss contacts you after hours, what counts as 'unreasonable,' the 8 factors the FWC considers, and real-world scenarios explained.
What the Right to Disconnect actually says
The Right to Disconnect came into effect on 26 August 2024 for employees of businesses with 15 or more employees, and on 26 August 2025 for employees of small businesses (fewer than 15 employees). It is now in force for all national system employees. The right is contained in new s333M of the Fair Work Act 2009, inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. The provision gives employees the right to refuse to monitor, read, or respond to contact (or attempted contact) from an employer or a third party (such as a client or customer) outside of their working hours — unless the refusal is unreasonable. This is a subtle but important formulation. The law does not prohibit employers from contacting employees after hours. Your boss can still send you an email at 10pm or call you on a Saturday. What the law does is protect your right to ignore that contact without facing adverse consequences. The distinction matters because it does not require employers to change their communication habits — it protects employees who choose not to respond. The right applies to all forms of contact: phone calls, text messages, emails, WhatsApp messages, Slack notifications, Teams messages, and any other communication. It also covers contact from third parties where the contact relates to the employee's work — for example, a client calling an employee's personal phone after hours.
What makes after-hours contact 'unreasonable': the 8 factors in s333N
The key question under the Right to Disconnect is whether the employee's refusal to respond is 'unreasonable.' Section 333N of the Fair Work Act sets out 8 factors that must be considered in determining reasonableness. First, the reason for the contact: emergency or time-critical matters weigh in favour of reasonableness. Second, the nature of the employee's role and level of responsibility: a senior manager may be expected to be more available than a junior employee. Third, the employee's personal circumstances, including family or caring responsibilities: an employee with young children has a stronger basis for refusing late-night contact. Fourth, how the contact is made: a single text is less intrusive than repeated phone calls. Fifth, the extent to which the employee is compensated for being available (such as an on-call allowance or a higher salary specifically reflecting after-hours availability). Sixth, the extent to which the employee is compensated for working additional hours. Seventh, whether the employee's role is subject to any provisions of an applicable modern award or enterprise agreement that deal with after-hours contact. Eighth, any other relevant matter. No single factor is determinative — the assessment is holistic. An employer who pays an on-call allowance and contacts an employee during their rostered on-call period will almost certainly be found to be making reasonable contact. An employer who sends non-urgent emails at midnight to a junior employee with no on-call arrangement will struggle to argue the employee's refusal to respond is unreasonable.
What is still 'reasonable' contact: emergencies, on-call, and time-sensitive matters
The Right to Disconnect is not an absolute shield against all after-hours contact. There are clear categories of contact that will generally be considered reasonable — and where an employee's refusal to respond may itself be unreasonable. Emergencies are the most obvious category. A workplace incident posing an immediate safety risk, a critical system failure requiring the employee's specific expertise, or a natural disaster affecting the business are all situations where after-hours contact is reasonable and refusal to respond may be unreasonable. Rostered on-call arrangements are another clear case. If you are rostered to be on-call and your employment contract, award, or enterprise agreement provides for on-call work (typically with an on-call allowance), then contact during your on-call period is reasonable — that is precisely what you are being compensated for. Time-sensitive matters with genuine commercial consequences may also be reasonable, particularly for senior employees. A CFO contacted on a Sunday about a material error in a Monday morning ASX announcement, for example, would likely face a reasonable contact finding. Scheduled or agreed contact is also reasonable — if you and your manager have an established practice of a brief check-in call at 6pm, that is reasonable. The law is designed to protect employees from the creep of unreasonable expectations — the 10pm 'just checking in' text, the Saturday morning 'can you look at this' email, the expectation that you respond to every Slack message within minutes regardless of the time. That is the behaviour the law targets.
FWC stop orders and penalties for employers
The Fair Work Act provides a specific enforcement mechanism for the Right to Disconnect. If a dispute arises between an employee and employer about the right to disconnect, either party can apply to the Fair Work Commission to deal with the dispute. The FWC must first attempt to resolve the dispute through mediation, conciliation, or consent arbitration. If the dispute remains unresolved, the FWC can arbitrate and make orders it considers appropriate. Under s333P, the FWC can make a 'stop order' requiring the employer to cease contacting the employee in the manner or at the times that the FWC determines are unreasonable. Conversely, if the FWC finds the employee's refusal to respond was unreasonable, it can order the employee to respond to reasonable after-hours contact. Contravention of a stop order is a civil remedy provision, meaning penalties apply. The maximum penalty for contravening a stop order is 60 penalty units for an individual ($93,900) and 300 penalty units for a body corporate ($469,500). Additionally, an employer who takes adverse action against an employee because they exercised (or proposed to exercise) their right to disconnect faces general protections claims under Part 3-1 of the Fair Work Act. This means your employer cannot dismiss you, reduce your hours, change your roster unfavourably, refuse a promotion, or take any other detrimental action because you did not respond to after-hours contact. The protection is broad and the penalties significant.
Real-world scenarios: boss texts at 10pm, Saturday emails, WhatsApp groups
Understanding the Right to Disconnect is easiest through practical scenarios. Scenario 1: Your manager texts you at 10pm on a Tuesday asking you to swap your Wednesday shift. You are a retail worker earning the base award rate with no on-call arrangement. You do not respond until you check your phone the next morning. This is a clear case where your refusal to respond is reasonable — the matter is not urgent, you are not compensated for availability, and it can wait until business hours. Scenario 2: Your manager adds the entire team to a WhatsApp group where work discussions happen between 6pm and 11pm most evenings. You leave the group. This is likely reasonable — ongoing non-urgent work discussions outside business hours that you are not compensated for constitute unreasonable contact, and the Right to Disconnect protects your decision not to participate. Scenario 3: You are an IT manager paid $140,000 per year with an employment contract that references occasional after-hours support. A critical server outage occurs at 8pm affecting client data. Your employer calls you. This is likely reasonable contact — the matter is genuinely urgent, your role and remuneration reflect some expectation of availability, and the consequences of not responding are significant. Scenario 4: Your boss sends you an email on Saturday morning asking you to prepare a report for Monday. You do not open the email until Monday morning. This is reasonable non-response — a non-urgent task that can be completed during working hours does not require a weekend response.
Practical tips for exercising your right to disconnect
The Right to Disconnect is a legal right, but exercising it effectively requires practical strategy. First, set clear boundaries proactively. Have a conversation with your manager about your availability expectations. A simple statement — 'I generally don't check work communications after 6pm, but I'm happy to be contacted for genuine emergencies' — sets expectations before a dispute arises. Second, use technology to your advantage. Turn off work email and messaging app notifications outside business hours. Most phones have 'Do Not Disturb' scheduling. If your employer requires you to use a work phone, leave it in another room. You are under no obligation to monitor notifications you have received — the right includes the right not to monitor. Third, document unreasonable contact. If your employer regularly contacts you outside hours for non-urgent matters, keep a record: date, time, nature of contact, urgency level, and whether you responded. This evidence is critical if you later need to apply to the FWC for a stop order. Fourth, respond in writing if pressured. If your manager comments negatively about your non-response to after-hours messages, respond by email referencing your right to disconnect under s333M of the Fair Work Act. This creates a written record and signals you are aware of your rights. Fifth, involve your union or a support person if the issue escalates. The right to disconnect is relatively new and some employers are still adjusting — having support can help navigate difficult conversations. Use our Overtime Calculator to check whether your after-hours work should be compensated, and our Salary Converter to understand what your effective hourly rate becomes when you factor in unpaid after-hours work.
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Official resources
General information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
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