Pub­li­ca­tions

The Right to Dis­con­nect: Con­tact from Cus­tomers and Clients

There has been much cov­er­age and dis­cus­sion about the new­ly intro­duced right to dis­con­nect, par­tic­u­lar­ly the right of employ­ees to refuse con­tact from employ­ers pro­vid­ed such refusal is not unreasonable.

One of the more chal­leng­ing aspects of the right to dis­con­nect, which has been over­looked in much of the analy­sis and com­men­tary, is that it applies not just to con­tact from employ­ers but extends to con­tact from third parties. 

Rel­e­vant­ly, sec­tion 333M(2) of the Fair Work Act 2009 (Cth) (Act) pro­vides:

An employ­ee may refuse to mon­i­tor, read or respond to con­tact, or attempt­ed con­tact, from a third par­ty if the con­tact or attempt­ed con­tact relates to their work and is out­side of the employee’s work­ing hours unless the refusal is unrea­son­able.” (Empha­sis added)

A third par­ty includes a cus­tomer or client of the employ­er’s busi­ness. Con­tact from a cus­tomer or client to an employ­ee of the busi­ness would, in almost all cir­cum­stances, relate to the work of the employee. 

The imple­men­ta­tion of the right could have a sig­nif­i­cant impact on occu­pa­tions where cus­tomers or clients direct­ly con­tact employ­ees out of work hours. It gives rise to the prospect of employ­ees either not respond­ing to such con­tact from cus­tomers or clients, or sim­ply inform­ing the cus­tomer or client that they are refus­ing to attend to their issue or query at that time. For many busi­ness­es, which com­mon­ly adopt a Cus­tomer is King’ phi­los­o­phy, such a response would be anath­e­ma to their client ser­vice ethos. The right could con­ceiv­ably affect a range of indus­tries such as pro­fes­sion­al ser­vices, real estate, infor­ma­tion tech­nol­o­gy, finance and media. 

As such, employ­ers need to con­sid­er mea­sures to effec­tive­ly bal­anc­e the need to serve cus­tomers and clients with the right to disconnect. 

Some prac­ti­cal steps for employ­ers to consider:

  • Dis­cuss the issue with employ­ees. Ensure employ­ees know the scope of the right (lest they hold the mis­tak­en but com­mon­ly held belief it is an absolute pro­hi­bi­tion on out of hours con­tact apply­ing to all employ­ees) and gain an under­stand­ing of the posi­tion of indi­vid­ual employ­ees on out of hours con­tact from cus­tomers or clients. This can pre­vent both the busi­ness and its cus­tomers or clients being blind­sided by a non-response or a refusal. Of course, in dis­cussing the right to dis­con­nect with staff employ­ers need to be care­ful not to mis­rep­re­sent the scope of the right or threat­en any adverse action if an employ­ee pro­pos­es to exer­cise the right. It would be pru­dent for any mes­sages from employ­ers to be care­ful­ly script­ed to ensure accu­rate infor­ma­tion is giv­en to employ­ees. Such a dis­cus­sion can also be an oppor­tu­ni­ty for employ­ers to set expec­ta­tions with employ­ees, par­tic­u­lar­ly if the view of the employ­er is that a refusal of cer­tain con­tact would, in the case of that employ­ee, be unrea­son­able under the Act. 
  • Adopt com­mu­ni­ca­tion pro­to­cols. Where appro­pri­ate, cus­tomers or clients who seek to make out of hours con­tact with an employ­ee where it would not be unrea­son­able for the employ­ee to refuse the con­tact should be sent a specif­i­cal­ly craft­ed mes­sage (which may need to be an auto­mat­ed text mes­sage or part of a voice mail mes­sage) that the employ­ee they are seek­ing to con­tact will not be in a posi­tion to assist them until work­ing hours (which should be spec­i­fied). Such a mes­sage should ide­al­ly also form part of the email sign-off for employ­ees who elect to exer­cise the right. It would assist in min­imis­ing the prospect of any brusque or inap­pro­pri­ate­ly rude response from an employ­ee to a cus­tomer or client. It will be eas­i­er to man­date these mea­sures on a device pro­vid­ed by the employ­er rather than a per­son­al device the employ­ee uses pur­suant to a Bring Your Own Device (BYOD) pol­i­cy. Of course, if an employ­er is seek­ing to argue that a refusal of out of hours con­tact is unrea­son­able, but has a BYOD pol­i­cy, be ready for the argu­ment from an employ­ee in the event of a dis­pute that they’re appar­ent­ly impor­tant enough to need to respond to cus­tomers and clients after hours on behalf of the employ­er but not impor­tant enough to be pro­vid­ed with a work device to do it. Some employ­ers may not like this, but I sus­pect such an argu­ment would like­ly find favour with the Fair Work Com­mis­sion (FWC).
  • Job Descrip­tions and Employ­ment Contracts. Some of the fac­tors the FWC must con­sid­er under the Act in deter­min­ing whether a refusal of con­tact by an employ­ee is unrea­son­able rel­e­vant­ly include: (i) the nature of the employ­ee’s role and lev­el of respon­si­bil­i­ty, and (ii) whether the employ­ee is com­pen­sat­ed to per­form work dur­ing the peri­od in which con­tact or attempt­ed con­tact is made or for work­ing addi­tion­al hours out­side the employ­ee’s ordi­nary hours of work. If there is an expec­ta­tion that an employ­ee will respond and deal with cus­tomers and clients out­side work­ing hours, then these expec­ta­tions should ide­al­ly be made clear in both the employ­ment con­tract and posi­tion descrip­tion for the role. The remu­ner­a­tion payable to the employ­ee should also be expressed to be part­ly in con­sid­er­a­tion for being avail­able to respond and deal with such con­tact. As stat­ed above, con­sid­er whether the appli­ca­tion of BYOD poli­cies might run counter to an argu­ment the employ­er may want to run that a refusal from cer­tain employ­ees is unreasonable. 
  • Set expec­ta­tions with cus­tomers and clients. If cus­tomers and clients are used to deal­ing with cer­tain employ­ees who are going to (not unrea­son­ably) refuse con­tact, then the busi­ness may want to have a dis­cus­sion with the cus­tomer or client either adjust­ing their after-hours ser­vice expec­ta­tions or ask­ing them to adopt alter­ative arrange­ments for con­tact with the busi­ness at those times. 

One con­so­la­tion for employ­ers is that unlike stop-bul­ly­ing orders, which can be obtained against third par­ties such as cus­tomers or clients, right to dis­con­nect dis­putes are between the employ­er and employ­ee and the orders the FWC can make pur­suant to sec­tion 333P of the Act are con­fined to pre­vent­ing either the employ­ee or employ­er tak­ing cer­tain actions incon­sis­tent with the scope of the right. Of course, such orders could cre­ate a dif­fi­cult sit­u­a­tion that may require diplo­ma­cy on the part of the employ­er to man­age with the cus­tomer or client if they are the third par­ty whose con­tact has pre­cip­i­tat­ed the dis­pute and FWC orders.