Workers’ compensation claims and the new right to disconnect legislation

An Australian employer has been ordered to provide backpay for 10 months and ongoing workers compensation to an employee after their supervisor contacted them numerous times while they were on personal leave. The employee argued that due to employers contact whilst she was on personal leave, the employee felt harassed, bullied and suffered anxiety which left the employee incapable of working for 18 months.

The NSW Personal Injury Commission labeled a supervisor’s contact as ​“hostile”, ​“excessive” and ​“inappropriately done”. 

The new right to disconnect laws have provided greater protection and increased ability to access compensation for employees where they can establish contact from their employer was unreasonable. Whilst the above example relates to a workers compensation claim, there is fear more cases like this will appear across Australia following the roll out of the new right to disconnect laws which came into effect on 26 August 2024. 

The new legislation allows for employers to be penalized if they contact staff outside of core working hours (including periods of leave). It’s an important reminder that employers need to have policies and procedures in place so that Managers and Supervisors do not contact people when it’s ​‘not appropriate’. It’s important to correctly train and inform Managers and Supervisors about the new right to disconnect laws to avoid costly claims. 

How do employers determine what is considered reasonable or unreasonable? 

Firstly, it’s important for employers to identify their reason for contacting the employee, then consider:

• whether the employee is compensated or paid extra for:
• being available to be contacted to perform work within a specific period, or
• working additional hours outside their ordinary hours of work
• the nature of the employee’s role and level of responsibility
• the employee’s personal circumstances, including family or caring responsibilities.

We are here to help!

Our Senior Consultants, Workplace Relations can: 

• Review and amend employment contracts and position descriptions throughout your company to ensure the level of responsibility and nature of the role is specified or if afterhours contact is necessary for the position. 
• Implement clear policies and guidelines that outline expectations regarding after-hours communication for employees.
• Implement a process for managers to follow to consider and respond to concerns raised by employees regarding contact outside of working hours.
• Define and confirm ​‘working hours’ for employees on employment contracts and individual flexible working arrangements.
• Provide training and information to employees regarding the right to disconnect

Have some questions following this article? Need assistance on determining what is reasonable or unreasonable? 

For South Australian Business Chamber Members, our Business Advice Hotline is only a phone call away and our advisors can talk through these changes with you. Call (08) 8300 0000 (select option 1).