Right to Disconnect: A right to ignore, tribunal says

A recent ruling in the South Australian Employment Tribunal is the first to test the limits of Australia’s Right to Disconnect laws after an employer allegedly exploited staff whilst expecting them to respond to numerous TikTok videos sent out of hours.

Deputy president Stephen Lieschke determined that social media does not automatically qualify as work-related contact despite allegations that the employer in question would respond unfavourably if they did not see a response to social media videos and messages.

However, the respondent and owner of South Australian salon Eco Hair Room has not entirely been left off the hook after two apprentices also alleged numerous breaches of the Fair Work Act as it relates to payment and entitlements.

The cases commenced after two apprentices separately made similar claims of underpayments. The applicants were a first-year, part-time employee-turned-apprentice who worked at the salon for one year, and a second part-time worker who was employed at the salon for 16 months.

The alleged underpayments were $4,500 and $14,000 respectively, and were made within similar timeframes.

The first applicant, who was just 16-years-old at the time of employment, alleged they were rarely paid for their work, sometimes receiving cash in an envelope, were only added to the payroll months after commencing work, and were only paid the low apprentice rate despite not always being one.

According to the applicant, shifts were often not set in advance or changed with little notice, and the applicant claimed they were ignored by the employer if they could not accommodate last-minute shifts.

Further, the applicant alleged they were expected to arrive before the start of their shift to prepare the salon for the day, be present even when the employer was not present, were not offered or allowed time in lieu, and frequently missed lunch and rest breaks.

The applicant’s leave was also not paid out on her resignation.

The alleged conduct contravened section 45 of the Fair Work Act by breaching the Hair and Beauty Industry Award 2020.

The applicant sued the salon owner and obtained a default Court Order for payment by 10 April 2026 to cover calculated unpaid monetary entitlements including unpaid initial wages, pre-apprenticeship shortfalls, overtime hours and superannuation, but did not receive any payment.

The second applicant filed a money claim at the end of 2025, with Default Orders made on 11 March 2026 for payment of unpaid wage entitlements and compensation for unpaid superannuation contributions, totalling $13,829 plus $968 in pre-judgment interest.

This applicant made similar allegations of unpaid minimum rates, unpaid overtime rates, no provision of a roster, unallowed meal and rest breaks, unpaid entitlements within 7 days of employment conclusion, and unpaid superannuation.

The respondent similarly did not pay entitlements or acknowledge the order.

In addition to this, both applicants alleged they were prevented from exercising a right to disconnect.

Central to the first applicant’s allegations were out-of-hours digital work requirements and ongoing social media contact. According to the applicant, the respondent would frequently send Snapchat and TikTok videos regarding her social life, as well as non-urgent work matters.

Whenever the applicant did not respond to this contact, it is alleged the respondent would be in a bad mood and ignore the employee.

Further, on one occasion, the applicant was required to take a work phone for the weekend to take messages, without payment. According to the applicant, they took the phone and agreed to look after it, but not monitor it.

The second applicant also claimed the respondent “unreasonably and regularly contacted the applicant out of hours about work and other matters”.

They identified a “consistent pattern” of communication, adding that the owner would make contact outside of work hours including on days off, and even reach out to family members which “created an ongoing expectation of availability and contributed to stress”.

Regarding a period of personal leave due to medical treatment, they added: “She also attempted to contact my family, including calling my mother in an effort to obtain information about my condition. I did not feel comfortable disclosing personal medical information and found this conduct to be an overreach of professional boundaries."

The respondent did not appear at either hearing.

In consideration of the alleged breach of the right to disconnect clause, which came into effect in late August 2025 for small businesses, Lieschke said the main issue for consideration was not the nature or frequency of the contact but whether applicants were prevented from exercising their right.

Section 333M of the Act outlines that an employee can refuse to “monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable”, with Lieschke noting that general protections “also prohibit the taking of adverse action by an employer against an employee”.

Lieschke acknowledged the evidence that the applicant sometimes “did not respond to messages despite the pressure” and that, in the first applicant’s case, they “felt pressure from anticipating she would be ignored and subjected to a bad mood on the following day”.

However, it was determined that, as there were no other consequences from the respondent, and the applicant was able to “resist the phone monitoring request, apparently without consequence or repetition”, the applicant was not prevented from exercising their right to disconnect despite the respondent's apparent discouragement in this regard.

Regarding the second applicant, Lieschke similarly accepted that “the applicant did feel the contact was unpleasant and intrusive, and felt pressure to respond” but they were similarly not subject to any consequence.

He said: “In my view these circumstances fall short of the respondent breaching the prohibition against directly or indirectly preventing the applicant from disconnecting.”

According to the AFR, the rulings are the first to be handed down in consideration of the Right to Disconnect laws.

Despite the findings, all other alleged serious contraventions were proven and allegedly committed knowingly, with a final penalty determination yet to be delivered.

Case citations: Elliot v McGuire [2026] SAET 107 (19 August 2026) and Kalleske v McGuire [2026] SAET 106 (19 August 2026).

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