10 Sep CASE BRIEF – Kalleske v McGuire [2026] SAET 106 and Elliot v McGuire [2026] SAET 107
The South Australian Employment Tribunal has delivered what is understood to be the first reported decision considering Australia’s right to disconnect provisions, finding that an employer’s after-hours communications and apparent disapproval when employees failed to respond did not amount to a breach of the right to disconnect because the employees were not prevented from exercising that right.
BACKGROUND
The Applicants were apprentice hairdressers employed by Eco Hair Room (“Respondent”).
The proceedings arose from a number of alleged breaches of the Hair and Beauty Industry Award 2020 (“Award”) and the Fair Work Act 2009 (Cth) (“FW Act”), including allegations that the Respondent had contravened the Award’s right to disconnect provisions.
The Applicants alleged that the Respondent would regularly contact them via social media outside working hours. The communications were said to relate primarily to the Respondent’s social life, although some concerned non-urgent work matters.
The Applicants alleged that when they did not respond to those communications prior to returning to work, the Respondent would be in a bad mood or ignore them. They contended that this created pressure to engage with the communications outside working hours.
One Applicant also alleged that the Respondent asked her to take the salon mobile phone home during a long weekend and monitor messages without payment. Although she took the phone home, she informed the Respondent that she would not monitor it.
The Applicants alleged that the above conduct constituted a breach of the right to disconnect provisions contained in the Award.
THE LAW
Section 333M of the FW Act introduced the statutory right to disconnect, which commenced operation on 26 August 2024 for most employers.
Following the introduction of the provision, the Fair Work Commission inserted right to disconnect terms into modern awards, including the Award.
Broadly, the right allows employees to refuse to monitor, read or respond to unreasonable work-related communications outside of working hours. The Award also prohibits an employer from directly or indirectly preventing an employee from exercising that right.
The central issue before the Tribunal was whether the Respondent had directly or indirectly prevented the Applicants from exercising their right to disconnect.
THE DECISSION
Deputy President Lieschke dismissed the right to disconnect claims.
In doing so, the Deputy President emphasised that the relevant question was not whether the Applicants felt pressured to respond to communications or whether the communications themselves were unwelcome. Rather, the issue was whether the Respondent’s conduct objectively prevented the Applicants from exercising their right to disconnect.
The Deputy President accepted that the Respondent’s apparent disapproval when messages were not responded to did place some pressure on the Applicants.
However, the Deputy President found that the Applicants nevertheless chose not to respond on some occasions and were able to exercise their right to disconnect despite that pressure.
Importantly, the Deputy President found there was no consequence beyond the Respondent’s apparent disapproval. The Deputy President considered that while the conduct may have discouraged the Applicants from always disconnecting, it did not prevent them from doing so.
Similarly, the Deputy President noted that the Applicants had resisted the request to monitor the work phone and had done so without consequence or any repeated demands from the Respondent.
The Deputy President therefore concluded that the Respondent had not directly or indirectly prevented the Applicants from exercising their right to disconnect and had not breached the Award.
OTHER CONTRAVENTIONS
Although the right to disconnect claims were unsuccessful, the Commission found that the Respondent had committed multiple contraventions of the Award and the FW Act, including failures to:
- pay the Applicants for hours worked beyond their agreed part-time hours;
- provide rosters in advance;
- provide required meal and rest breaks;
- reimburse TAFE fees in a timely manner; and
- pay superannuation entitlements.
The Deputy President found that those contraventions were “serious contraventions” for the purposes of section 557A of the FW Act because they were committed knowingly.
The Respondent had also previously been ordered to pay approximately $18,000.00 in unpaid wages and superannuation to the Applicants but had not complied with those orders.
The issue of penalties was reserved for further hearing.
WHAT THIS MEANS FOR EMPLOYERS
This decision provides the first judicial guidance on the operation of Australia’s right to disconnect provisions.
Importantly, the Deputy President distinguished between conduct that pressures or discourages an employee from disconnecting and conduct that actually prevents an employee from exercising the right.
To read the decisions, please see the links below:
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