For employees
Right to disconnect dispute: how it reaches the Commission, and whether you need a lawyer
The right to disconnect has been in the Fair Work Act since 26 August 2024, and since 26 August 2025 for small business employers. It lets an employee refuse to monitor, read or respond to work contact outside working hours unless the refusal is unreasonable, and disputes about it can go to the Fair Work Commission. This page is for employees whose employer keeps contacting them after hours, or has punished them for not answering, and who want to know what the dispute process looks like, what the free route is, and whether a lawyer is worth it. The existing practical guide covers the scenarios; this page covers the process.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| Right to disconnect dispute at the Commission | No fixed application deadline; disputes can go to the Commission | Fair Work Act s 333M |
| General protections application if you were dismissed for refusing after-hours contact | 21 days from the dismissal | Fair Work Act s 366 |
| General protections claim for adverse action short of dismissal | No Commission deadline; a court claim must be started within 6 years | Fair Work Act s 370 and the general limitation period |
Do you need a lawyer for this?
Advice usually pays for itself when
- You have been dismissed, demoted, had hours cut or been marked down since you started refusing after-hours contact. That is potentially adverse action, with a 21-day deadline if you were dismissed.
- You are salaried in a senior or client-facing role and the employer says out-of-hours availability is part of what you are paid for. Whether your refusal is reasonable is a real legal argument.
- The employer is a large organisation with lawyers and a written policy it says you agreed to.
- You want to pursue the penalty side, which runs through a court, not the Commission.
The free route is usually enough when
- The contact is annoying but nothing has been done to you for ignoring it. Raising it in writing usually fixes this.
- You want to know whether your refusal is reasonable before saying anything. The existing guide and the free tool answer that in words.
- Your award or agreement has its own after-hours or working-from-home clause and the dispute is really about that clause.
- You are a union member. Unions run these disputes routinely.
What does the right actually give me?
A right to refuse, not a ban on contact. Your employer can still email you at 9pm; what the Fair Work Act protects is your choice not to read or answer it until you are next working, provided the refusal is not unreasonable. Reasonableness turns on things like why the contact was made, how disruptive it is, whether you are paid to be available, your role and seniority, and your personal circumstances. The existing practical guide works through common scenarios, so this page does not. The point to hold onto is that the dispute is almost never about whether the boss sent the message. It is about whether your refusal was reasonable, and whether you were punished for it. Those are the two questions the Commission and any lawyer will ask first.
What does the dispute process look like?
The Act puts disputes about the right to disconnect within reach of the Commission. In practice the first step is at the workplace: raising it with your manager, in writing, and using any dispute clause in your award or agreement. If that goes nowhere, either side can take the dispute to the Commission, which can deal with it in the ways it deals with other disputes, including conciliation and, where needed, orders about the contact or the response to it. The Commission does not award compensation in this process. Where the employer has breached the right and a penalty is sought, that is a court matter, and the Fair Work Ombudsman can take it up. So there are really three lanes: fix it at work, get an order from the Commission, or pursue a breach through a court.
What if I was punished for not answering?
This is where the matter gets bigger than a disconnect dispute. Refusing unreasonable after-hours contact is a workplace right, and adverse action because you exercised it, such as dismissal, a cut in hours, a lost bonus or a bad review, engages the general protections. If you were dismissed, that claim has to reach the Commission within 21 days (Fair Work Act s 366). If the adverse action was short of dismissal, there is no Commission deadline, but a court claim must be started within 6 years (s 370). The reverse onus applies: once you show the refusal and the adverse action, the employer must prove the refusal was not a reason (s 361). Keep every message, every timestamp and every consequence. The pattern is the evidence.
Who decides whether my refusal was reasonable?
Nobody can answer that in the abstract, which is why this page does not try. The Commission decides in a dispute, a court decides in a penalty case, and both look at the same kinds of factors: the reason for the contact, how it was made, how much it disrupts you, whether you are compensated for availability, what your role involves, and your personal circumstances including caring responsibilities. A rostered on-call worker refusing a call during the on-call window is in a weak position. A salaried worker with no availability allowance ignoring a routine Sunday text is in a strong one. Between those poles it is argument, and that is what a lawyer is for. The free penalty quantifier tool describes the factors and the penalty structure in words.
When does paying a lawyer pay for itself?
Liquid Employment Lawyers is a paid legal service FairWork Mate refers people to, not free government help, and for a plain please-stop-messaging-me-on-weekends problem a lawyer is overkill. A written request and, failing that, a union or a Commission application handles it. A lawyer starts to pay for themselves when the contact is tied to your pay or your job: the employer says availability is part of your salary, you have been marked down or let go for not responding, or the dispute overlaps with an award clause about working hours or working from home. Those are arguments about reasonableness and about adverse action, with real money behind them. The first conversation through FairWork Mate is free; scope and fees are discussed with the firm directly.
What is the free route?
The Fair Work Ombudsman is free on 13 13 94, explains the right to disconnect, and can pursue a breach through the courts where it decides to. FairWork Mate's tools are free: the penalty quantifier describes how contraventions are counted and what the factors are, and the general protections checker tests whether being punished for refusing amounts to adverse action. If you are covered by the Clerks award and work from home, the existing clause 5A guide explains the specific working-from-home rules that often decide these disputes. A union will run a disconnect dispute at the Commission for a member. And the simplest free route is still a polite email saying you do not monitor work messages outside your hours and will pick this up on Monday. Written, dated, and kept.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
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Common questions
Can I get compensation through a right to disconnect dispute?
Not from the Commission's dispute process, which is about stopping the conduct. If the employer punished you for refusing, a general protections claim can lead to compensation through a court. Penalties for breaching the right are a separate court matter, and the free penalty tool explains how they are structured.
Does it apply to my small business employer?
Yes, since 26 August 2025. For other employers it has applied since 26 August 2024 (Fair Work Act s 333M). A small business is one with fewer than 15 employees, counted by head, regular casuals included.
Do I have to raise it with my employer before going to the Commission?
In practice the dispute starts at the workplace, and the Commission will want to know what was tried. A dated written request is the first thing to do and the first thing a lawyer will ask for.
Is Liquid Employment Lawyers free?
No. It is a private employment law firm and a paid partner FairWork Mate refers to. The Fair Work Ombudsman is free on 13 13 94, and FairWork Mate's tools and guides are free. The first conversation through FairWork Mate is free; fees are agreed with the firm after that.
I am on call. Does the right still help me?
Being rostered on call and paid for it makes a refusal during that window hard to call reasonable. Outside the on-call window, the ordinary factors apply. The existing practical guide has an on-call scenario.
Official sources
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
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