Out-of-hours contact with employee not a breach of right to disconnect
The first reported decisions considering an employer’s obligations under the modern award right to disconnect have provided early guidance on an important distinction about where the line may fall between unwelcome or unreasonable after-hours contact, pressure to respond, and conduct which actually prevents an employee from disconnecting.
In Kalleske v Mcguire [2026] SAET 106 and Elliot v Mcguire [2026] SAET 107, Deputy President Stephen Lieschke of the South Australian Employment Tribunal (Tribunal) found that the owner of a hairdressing salon had not breached the right to disconnect provisions in the Hair and Beauty Industry Award 2020 (Hair and Beauty Award).
Legal framework
The right to disconnect was introduced by the Closing Loopholes reforms to the Fair Work Act 2009 (Cth) (Fair Work Act).
Section 333M of the Fair Work Act provides that an employee may refuse to monitor, read or respond to contact, or attempted contact, from their employer outside their working hours unless the refusal is unreasonable. The right also extends to work-related contact from third parties.
Whether an employee’s refusal is unreasonable requires consideration of the circumstances, including:
- the reason for the contact;
- how the contact is made and the level of disruption it causes;
- the extent to which the employee is compensated for being available or working additional hours;
- the nature of the employee’s role and level of responsibility; and
- the employee’s personal circumstances, including family or caring responsibilities.
The legislation also required modern awards to include corresponding right to disconnect terms. The Fair Work Commission inserted a right to disconnect term into all 155 modern awards.
Key facts
The two proceedings involved substantially similar allegations by two apprentices employed by Eco Hair Room.
Jessica Kalleske
Ms Kalleske was employed as a part-time apprentice hairdresser between July 2024 and October 2025.
She gave evidence that there was a consistent pattern of contact outside working hours, including on days off, during trade school and while she was unwell or on leave. Ms Kalleske argued that this created an ongoing expectation of availability and that she was expected to read and respond to work-related communications which were not limited to urgent matters.
Ms Kalleske also gave evidence about the broader employment relationship, including working beyond her agreed apprenticeship hours, being required to perform managerial duties, not receiving proper breaks and being subject to unpredictable working arrangements.
Amelia Elliot
Ms Elliot was employed as a part-time apprentice from November 2024 to November 2025.
Her evidence concerning the right to disconnect was more specific. She said the salon owner frequently sent her TikTok and Snapchat videos outside work hours, mostly about the owner’s social life, as well as some non-urgent work matters. Ms Elliot said that if she did not respond before returning to work, the owner would be in a bad mood and ignore her.
On one occasion, Ms Elliot was also asked to take the salon’s mobile phone home over a long weekend and take messages without payment. She took the phone but made clear that she would not monitor it. She was not asked to do so again.
Key findings
The central issue for the Tribunal was not simply whether the employer’s contact was unreasonable, unwelcome or intrusive. Deputy President Lieschke identified the issue in Elliot as whether the employer had “directly or indirectly prevented” the apprentice from exercising her right to disconnect.
The Tribunal accepted that Ms Elliot felt pressure to respond. It also accepted that the employer’s communications were unreasonable and that the apprentice sometimes felt pressure because she anticipated that the owner would be in a bad mood and ignore her at work if she did not respond. However, Ms Elliot had sometimes not responded despite that pressure.
The Tribunal considered this important because there was no evidence that she suffered any other consequence when she did not respond. She was also able to refuse the request to monitor the salon phone without consequence or repetition of the request.
Deputy President Lieschke concluded, “I accept the applicant was discouraged from always disconnecting … but I am unable to conclude the applicant was prevented from doing so.” The Tribunal therefore found that the employer had not breached clause 14A of the Hair and Beauty Award.
The same reasoning was applied in Kalleske. Deputy President Lieschke accepted that Ms Kalleske felt pressure to respond, but found that she was not subject to any consequence when she did not respond and there was no other evidence that the employer attempted to prevent her from refusing to respond.
Ultimately, an employer may communicate with an employee outside working hours without automatically breaching the right to disconnect. However, if the employer’s response to an employee’s refusal to engage means that the employee is effectively unable to exercise the right, the position may be different.
Key takeaways
The decisions in Kalleske and Elliot are important because they provide some of the first judicial guidance on the meaning of an employer directly or indirectly preventing an employee from exercising the right.
Importantly, however, employers should not interpret these decisions as a licence to pressure employees into responding to out-of-hours communications. The decisions instead suggest that the practical consequences of refusing to respond will be an important consideration.
For example, employers should be cautious about conduct such as:
- reprimanding an employee for not responding outside their hours;
- creating an expectation that employees must remain available;
- threatening disciplinary action because an employee has not responded;
- disadvantaging an employee because they have exercised their right to disconnect;
- repeatedly contacting an employee after they have made clear that they are not available; or
- creating an informal workplace culture in which employees understand that failing to respond will have negative consequences.
The fact that an employee responds to an after-hours message should also not necessarily be taken as evidence that the employee was required to do so. The circumstances surrounding the contact and the employee’s ability to refuse it remain relevant.
How can NRA Legal assist?
NRA Legal can assist in preparing clauses in employment contracts and policies which relate to the right disconnect, as well as representation before the Fair Work Commission, or other Tribunals, for disputes relating to the right to disconnect.
If you’d like to learn more about an employee’s right to disconnect under the Fair Work Act, please contact NRA Legal on 1800 572 679 for a confidential conversation.
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