First tribunal ruling on the Right to Disconnect

Employers will be aware that the Closing Loopholes reforms introduced a number of significant amendments to the Fair Work Act 2009 (Cth), including the introduction of an employee’s right to disconnect under section 333M.

The right to disconnect provides employees with the ability to refuse to monitor, read or respond to work-related contact from their employer, or from a third party relating to work, outside their working hours, unless that refusal is unreasonable.

While these provisions commenced in August 2024 (and later applied to small business employers from August 2025), there has been limited judicial consideration of the new right. The first substantive ruling has now been delivered by the South Australian Employment Tribunal (SAET), providing employers with valuable guidance on how the provisions may be interpreted in practice.

Recent case:

In  Kalleske v Mcguire [2026] SAET 106 (19 August 2026) and Elliot v Mcguire [2026] SAET 107 (19 August 2026), the SAET heard allegations that an employer pressured employees to respond to contact outside of working hours, including TikTok videos of her social life. The employees alleged that the employer would ignore them or be in a ‘bad mood’ if they failed to respond.

Importantly, Deputy President Judge Calligeros noted that the key question was not whether the communications were unwelcome or inappropriate. Rather, the Tribunal was required to determine whether the employer had directly or indirectly prevented the employees from exercising their right to disconnect.

Although the Tribunal accepted that the employer’s conduct may have discouraged employees from disconnecting, it ultimately found there was insufficient evidence that the employer had prevented employees from exercising that right. As a result, the right to disconnect provisions were not breached.

Key Takeaways for employers

While the decision is fact-specific and represents an early interpretation of the legislation, it offers several important insights for employers.

1. The first Tribunal decision confirms that not every instance of after-hours contact will breach the right to disconnect provisions.
2. The key question is whether an employer has directly or indirectly prevented an employee from exercising their right to disconnect.
3. Employers should be mindful not only of what communications are sent after hours, but also of the expectations and workplace culture surrounding those communications.
4. Employees generally remain entitled to ignore, read later or decline to respond to work-related communications outside working hours unless it would be unreasonable for them to do so.
5. Organisations should review policies, management practices and training to ensure compliance with the new workplace right.

If you have any questions about the right to disconnect or your workplace obligations under the Act, please contact the Workplace Relations Team:

📞 (02) 6175 5900
📧 workplace@mba.org.au