Business Toolbox

The South Australian Employment Tribunal has provided useful guidance on how the right to disconnect applies to modern awards.

It follows the ruling of two claims against one employer (Kalleske v Mcguire and Elliot v Mcguire), which were the first reported decisions since the right was introduced into modern awards in 2024.

Deputy President Stephen Lieschke ruled that despite out-of-hours social media communications from an employer being “unpleasant and intrusive” and creating pressure on employees to communicate outside hours, the right to disconnect had not been breached because the employees did not suffer any adverse consequences.

Case facts: after-hours messages prompt right to disconnect claims

Two apprentice hairdressers made separate applications against their employer, Eco Hair Room, alleging breaches of their right to disconnect, as well as claiming other contraventions under the Fair Work Act 2009 (Cth) (FW Act).

One of the applicants asserted that Eco Hair Room’s owner (respondent) would frequently contact them outside of working hours via Tik Tok, Snapchat and other means, mostly in relation to the respondent’s social life and occasionally regarding non-urgent work matters. The applicant also said that if they did not respond, the respondent would ignore them the following day and be “in a bad mood”.

It was alleged that on one occasion the applicant was required to take the salon mobile phone home over the weekend to take messages, however, they would not be paid for the time. In response, the applicant did take the phone and informed the respondent that she would not be monitoring it. The applicant was not asked to monitor the work phone over the weekend again.

The right to disconnect is contained in s333M of the FW Act and s14A of the Hair and Beauty Industry Award 2020 (award).

Under the laws, an employee may refuse to monitor, read or respond to contact, or attempted contact, from their employer or third party (if related to work) outside their working hours, unless unreasonable to do so. The award provides that an employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the FW Act.

Decision: Tribunal finds no breach despite pressure to respond

Deputy President Lieschke found that the respondent had not contravened the right to disconnect provisions contained in the award or FW Act.

While the applicant may have considered communications unwelcome and felt pressure to respond, the right to disconnect is concerned with whether an employee is able to refuse to monitor, read or response to unreasonable work-related contact outside working hours.

A distinction was made between conduct that discourages an employee from disconnecting and conduct that prevents them from exercising that right.

“While the employer responded with apparent disapproval at her messages not being liked or responded to by a junior employee, and this did put some pressure on the applicant, there was no other consequence from the respondent," Lieschke noted.

"The applicant was also able to resist the phone monitoring request, apparently without consequence or repetition. I accept the applicant was discouraged from always disconnecting by the respondent’s conduct, but I am unable to conclude the applicant was prevented from doing so.”

Key takeaways for employers

These decisions indicate that the right to disconnect under the modern awards is not a prohibition against employers contacting employees after hours. Rather, the focus is on whether the employee can reasonably refuse to monitor, read or respond to out-of-hours communication.

Employers may not need a blanket ban on after-hours emails, messages and phone calls. But clear expectations should be set when responses to after-hour contact are required, and employers should ensure that employees are not prevented from exercising their right to disconnect.

Risk is more likely to arise where adverse consequences follow a reasonable refusal by an employee to respond to out-of-hours communications.

Employers should review current after-hours communication practices, including updating any relevant policies or procedures, clarifying with managers and supervisors when after-hours contact is appropriate and exercising caution in taking adverse or disciplinary action against employees for not responding outside working hours.

How we can help your business navigate right to disconnect laws

Business Law WA can provide employers with advice on navigating right to disconnect laws and managing communications with employees.

We can advise and represent businesses in relation to employee claims, such as unfair dismissals and general protections.

Get in touch with our Employment Law team today. Contact us on 08 9365 7746 or [email protected].

This article is authorised by Business Law WA, an incorporated legal practice and wholly owned subsidiary of CCIWA. The content of this article is general in nature and is not legal or professional advice and should not be relied upon as such.