Stay calm: a guide to handling workplace allegations

Kevin Yee

Partner

The following should not be considered legal advice and is for general use only.

Earlier this year, ‘Right to Disconnect’ provisions were added to the raft of amendments to the Fair Work Act under the Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023. 

The ‘Right to Disconnect’ has been gaining attention around the world, particularly in Europe, over recent years due to the significant increase in work-related mental health issues, many linked to stress and overwork.

Australia’s rise in work-related mental health issues of late is no different and a recent Safe Work Australia report on ‘psychological health and safety in the workplace’ stresses the importance for employees to maintain healthy boundaries between work and personal life as crucial to managing their stress.

When does the change take effect?

The new provisions become effective:

26 August 2024 for all businesses (with more than 15 employees).

26 August 2025 for small business employers (i.e. those with less than 15 employees).

What is the ‘Right to Disconnect’?

The Bill defines the ‘right to disconnect’ as the right for an employee to ‘refuse to monitor, read or respond to contact, or attempted contact’ from their employer (or related parties) outside their work hours, unless it’s unreasonable to do so.

Therefore, the ‘Right to Disconnect’ provides employees a new workplace right that if exercised, prohibits an employer from taking adverse action against them. However, it’s important to note that the legislation does not ban employers from contacting their employees after working hours, nor punish employees for not responding if they choose not to.

Instead, these changes are designed to encourage employers and employees to talk about contact out of hours and set expectations that suit the workplace and the particular role of the employee. As workplaces continue to embrace more flexible working arrangements in a post-COVID landscape, greater employer and employee engagement and agreement is critical.

Understanding when an employee’s refusal to respond will be deemed unreasonable is important, and there are factors to help determine whether an employee’s refusal to monitor, read or respond to contact is unreasonable. These non-exhaustive factors include:

the reason for the contact or attempted contact;

the method of contact and level of disruption it causes the employee;

whether the employee is being compensated to remain available or perform additional work outside ordinary hours;

the nature of the employee’s role and the employee’s level of responsibility; and

the employee’s personal circumstances (including family or caring responsibilities).

What does this mean for employees?

Whilst employees have a right to disconnect, this does not mean employees can simply ignore their employer’s contact (made outside of the employee’s working hours). Employees must still be mindful of their role and responsibilities. The Right to Disconnect encourages employees to discuss contact issues, roles and responsibilities with their employer.

Employees are encouraged to have frequent communications with their employer, especially if work can arise out of working hours, to ensure both parties’ expectations and responsibilities are clear.

Where there is a dispute about the right to disconnect and/or failure to respond to a contact, both parties must first try to resolve the dispute internally at the workplace level. If this is unsuccessful, an employee will be able to apply to the Fair Work Commission (the Commission) for a “stop order” to resolve such disputes.

What does this mean for employers?

These changes do not mean employers, or contact from a third party which is related to an employee’s work, are prohibited from contacting or attempting to contact the employee.

However, if the employee refuses to respond to such contact, employers must consider whether that refusal was unreasonable, given the factors listed above. If there is any ambiguity, employers need to be careful to not take actions that may detrimentally affect that employee’s employment, such as disciplining the employee for failing to respond. This would be considered adverse action, which gives rise to an employee bringing a general protections application in the Commission.

Employers can prepare for the changes by:

Updating their employment contracts and internal policies to include any employee requirements to work, or be in contact, outside normal working hours as well as relevant remuneration.

Setting performance expectations in job descriptions and performance reviews that includes contact and work outside of normal working hours (or foreshadows that contact outside of normal working hours may be necessary in some circumstances).

Engaging with their employees about expectations on both sides in relation to work and contact outside of normal working hours.

Where can I get more information?

To assist workplaces with adapting to these changes, the Commission is required to issue guidelines clarifying how these new rules should be applied. Once these guidelines are available, they will provide practical guidance on when refusal to work outside of usual hours will be considered reasonable or unreasonable.

Whether you are an employee or employer, if you have questions or concerns relating to the Right to Disconnect, please contact Danny King Legal for further support and advice.

With thanks to our contributor – Zeb Holmes, Senior Associate.

It’s not a nice feeling—you thought you were doing a great job and getting on well with everyone in your workplace. Then, out of nowhere, you’ve got an invite from HR or your manager asking for a ‘chat’.

The feeling of despair, gloom and doom that follows is natural.

It’s easier said than done, but the first step is not to panic. The feeling of dread is because it’s jarring to be treated this way, especially when you take your work seriously.

Your employer shouldn’t make decisions to discipline (or worse, terminate) without first giving you the opportunity to respond with information relevant to the allegations. If they make decisions that negatively impact you without your consultation or input, they are not providing you with procedural fairness, which they should. You are still an employee, and they owe it to you to give you a fair go at explaining yourself. When an employer fails to do this, they may be in breach of the law, and you may have the right to make a legal claim against them.

Support person

Whether it’s your first meeting or not, you can request to bring a support person with you. A support person is someone who provides moral and emotional support during the meeting. This can be a friend, family member, neighbour, union representative, a coworker, or even a lawyer. While a support person usually cannot advocate for you during the meeting (meaning they cannot respond to allegations or questions on your behalf) they go a long way, simply by helping you stay calm and reduce the likelihood of mishaps. Their role is to help you feel supported. They can call for breaks if they think you need time to regain composure, and they can offer ideas or advice on responding to questions. They can also take notes and ask questions for clarification, which can help you better understand the employer’s process.

Responding to the best of your ability and knowledge

It’s important to be upfront, honest and clear when addressing allegations or questions, either verbally or in writing. To the extent that you are able to do so safely and effectively, you can and should participate in any opportunity to respond. You should not allow yourself to be rushed, and if you need more time or can’t think straight because this is an ambush meeting, be truthful: ask for an extension on time, or for allegations to be detailed in writing so that you have a fair chance to properly consider when your head is clearer.

Honest communication, and later honest participation, helps maintain your credibility and prevents any unintentional damage to it.

Don’t hesitate to ask for clarification if you don’t understand a particular allegation or question. You likely don’t have all the information that your employer possesses. It’s possible that you may have even misunderstood a specific obligation, process or procedure, which could explain the allegations against you.

It’s perfectly acceptable to inquire about the source of that obligation, process or procedure. In case you overlooked it, you can ask where it can be found and whether your employer has previously communicated it clearly. If your actions were unintentional or inadvertently violated a policy because you were unaware it existed, you have a valid basis to argue that your actions were a mistake.

If you have genuinely made a mistake or misunderstood an obligation, process or procedure, and didn’t intend for your actions to be perceived in a certain way, take this opportunity to reflect on any wrongdoing. Create a future where the employer gets you for all the good, with all the risks removed. Suggest practical solutions for correcting your conduct. Acknowledge your mistake, take accountability, and apologise if appropriate. You may also consider proposing training courses or creating a plan to address the situation moving forward.

Get advice

We understand these situations can be stressful, and tensions often run high. While it’s natural to expect the worst, having a solid grasp of the legal requirements and your rights and entitlements can significantly reduce stress.

Being called in to answer questions is not negative; it doesn’t have to be a confrontational or highly charged experience. It’s a fine balance to try and control, but your employer does have a right (and possibly an obligation) to put allegations and investigate in many circumstances—they’re probably doing their job by asking. You mustn’t forget though that, depending on your goals, if you need to clear your name and continue working there, you need to do it practically and sensitively, without burning the whole house down. This probably means that if things are complex, you should get some advice, because making the wrong strategic choices and taking adversarial tangents can cause more harm than good if you want to get your career back on track.

How DKL can help

At DKL, we understand that receiving allegations can significantly impact you. We have experience working with both employees and employers, witnessing scenarios unfold, and advising on holistic strategies that pursue your preferred goals. Having a lot of experience with the nuances involved allows us to handle these situations effectively. Our analytical and methodical approach enables us to navigate challenging circumstances while focusing on the bigger picture and the best possible outcomes for you.

Please visit our website or contact us for more information.