First case involving adverse action and the right to disconnect

Michelle Martin, a former teacher at Cairns Steiner School (School), has made a general protections application in the Federal Court of Australia, alleging that her dismissal was the result of her exercising (or intending to exercise) multiple workplace rights – including the newly introduced right to disconnect. This is the first case in the public forum involving an adverse action allegation based on the right to disconnect. Further information about the right to disconnect can be found here.

Background

Ms Martin claims she exercised her workplace right to make a complaint in relation to her employment by:

• reporting information about a reportable suspicion under child protection legislation
• providing feedback regarding a contractor who provided services to the School
• lodging a grievance complaint letter with the Teachers’ Professional Association of Queensland (TPAQ).

Ms Martin later took personal leave, claiming she was not fit to work due to stress. Ms Martin sought to return to work from 10 June 2024. On 12 July 2024, the School directed Ms Martin to undertake an independent medical review and to take paid leave until the medical review was completed and provided. On 27 August 2024, the School received an independent medical report which recommended that discussions likely to exacerbate Ms Martin’s stress, such as potential legal consequences, negative feedback or warnings, or the possibility of not returning to work, should be avoided.

Despite the recommendations contained in the independent medical report, on 12 September 2024 (during the school holiday period), the School emailed Ms Martin a letter which outlined six allegations and required a written response by 20 September 2024. The letter also stated that if any or all of the allegations were substantiated, disciplinary action including termination of Ms Martin’s employment could be considered.

On 20 September 2024, Ms Martin, through her lawyers, responded, noting that Ms Martin was receiving treatment for a medical condition. The response also noted that it was school holidays, and Ms Martin was not required to return to work until 4 October 2024. The response referred to the right to disconnect under s 333M of the Fair Work Act 2009 (Cth) (FW Act) and proposed a revised date for Ms Martin to respond to the allegations letter of 11 October 2024.

The School refused this request to extend the response time until after the school holidays, asserting that Ms Martin was “not on school holidays” and proposed to extend the deadline to respond to 25 September 2024 (a date during the school holiday period).

On 25 September 2024, Ms Martin, through her lawyers, responded, noting that the request for an extension was reasonable and reiterating that Ms Martin would provide her response to the allegations by 11 October 2024. The response also noted that, under clause 21.2 of the Educational Services (Teachers) Award 2020 (the modern award applying to Ms Martin’s employment) Ms Martin was required to be on annual leave during non-term weeks.

On 27 September 2024, the School sent a letter to Ms Martin confirming that each of the allegations against her had been substantiated. On 8 October 2024, Ms Martin’s employment was terminated due to misconduct.

Legal proceedings

Ms Martin has filed a statement of claim in the Federal Court of Australia (Michelle Andrea Martin v Cairns Rudolf Steiner School Ltd QUD148/2025) alleging that the School took adverse action against her by terminating her employment because she:

• exercised her workplace right to make complaints in relation to her employment; and
• exercised her right to disconnect by proposing an extension to respond to the allegations. Ms Martin also argues that the School’s refusal to extend the deadline to respond, and the decision to dismiss her, directly or indirectly prevented her from exercising her right to disconnect.

Ms Martin is seeking $730,000 in lost income, based on her assertion that she would have remained employed for 6 more years. She is seeking a further $50,000 for hurt and humiliation.

The School denies the allegations and maintains that Ms Martin was dismissed due to misconduct. The proceeding is continuing in the Federal Court.

What does this mean?

Since the introduction of the statutory right to disconnect we anticipated this would likely be relied upon as a ‘workplace right’ in the context of general protections claims. As the scope of the statutory right to disconnect is yet to given judicial consideration it will be interesting to observe how the Court will reconcile the need to conduct disciplinary processes efficiently and without delay so as to ensure procedural fairness, with employees’ entitlements, including the right to disconnect, and workplace health and safety obligations where disciplinary action coincides with a period of medical treatment.

In order to meet the reverse onus of proof, the employer will need credible evidence proving their decision-making did not include unlawful reasons including the exercise of, or the intention to exercise, workplace rights. Employers should be mindful that communication and disciplinary processes during periods of non-work or outside working hours requiring employee engagement may carry legal risk if not handled appropriately.

Gadens Workplace Advisory and Disputes team is able to assist you with any queries you have in respect of implementing right to disconnect policies, managing disciplinary processes, and advising on how best to mitigate risks.

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Authored by:
Louise Rumble, Partner
Vishmitha De Alwis, Associate