Protecting health and wellbeing with the right to disconnect

A recent case before the South Australian Employment Tribunal considered the right to disconnect and whether an employer's request for contact outside working hours prevented that right from being exercised.

In Kalleske v McGuire (2026), the Tribunal had to consider the operation of section 333M of the Fair Work Act 2009 (Cth), which provides that, in essence, an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of their working hours unless the refusal is unreasonable. In part, this right is designed to protect the health and wellbeing of workers so as not to cause psychosocial harm.

The case concerned a hair-dressing salon and a request by the owner to contact staff after hours through social media. Some of the contact related to rostering for the following week. There was also an occasion where a staff member was asked to take home a phone over the weekend to monitor calls. Importantly, although the employee took the phone, they refused to take calls.

The Tribunal found 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.

The Tribunal found that the employer had not breached the additional right to disconnect under the Hair and Beauty Industry Award 2020, which prohibits an employer from directly or indirectly preventing an employee from exercising their right to disconnect. The employer, while asking for contact, did not enforce it.

The Tribunal emphasised that the relevant question was not whether the employees felt pressured to respond to communications or whether the communications themselves were unwelcome. Rather, the issue was whether the employer’s conduct objectively prevented the employees from exercising their right to disconnect.

Incentivising employees not to strike is not good faith bargaining
The right to take protected industrial action is embedded in the bargaining framework of the Fair Work Act 2009 (Cth) ...