The South Australian Employment Tribunal has handed down the first decision to substantively rule on what the right to disconnect requires under the Fair Work Act 2009: Elliot v Mcguire [2026] SAET 107. An earlier general protections claim raising the right to disconnect, brought by a Queensland teacher, is still before the Federal Court and has not yet been decided on its merits, so this is the first case to actually rule on where the line sits.
The facts involved a part time apprentice hairdresser who alleged her employer breached the right to disconnect by frequently contacting her outside work hours via TikTok and Snapchat, mostly about her social life but occasionally about non urgent work matters. When she didn't respond, the employer would ignore her and be in a “bad mood” the next day. She was also asked to take the salon phone home over a long weekend to monitor messages, refused, and was then never asked again.
Despite this, Deputy President Lieschke found no breach. The employer's conduct put pressure on the applicant and discouraged her from disconnecting, but it did not amount to preventing her from exercising the right. She was able to not respond without any consequence beyond the employer's displeasure.
The key takeaway: it's not the after hours contact itself that breaches the right to disconnect. It's what happens to the employee when they don't respond. The real risk arises where a failure to respond leads to an actual adverse consequence, such as disciplinary action, a roster change, or other adverse treatment.
Why this matters for hospitality and property businesses
Hotel operators, resorts, and property teams run on rosters, shift changes, and around the clock guest demands, which makes after hours contact with staff almost unavoidable. This decision gives some comfort that occasional or even frequent out of hours messages will not, on their own, breach the right to disconnect. But it also draws a clear line: the moment a manager penalises, sidelines, or changes conditions for a staff member who didn't respond after hours, the exposure changes completely.
For hotel owners and operators, the practical steps are the same ones we always come back to:
- Make sure managers understand that displeasure is not the risk, adverse action is.
- Keep rosters, disciplinary decisions and performance reviews clearly separated from whether someone answered a message at 9pm.
- Have a written right to disconnect policy that reflects how your business actually operates, including for on call and monitoring arrangements like the salon phone in this case.
This article is general information only and does not constitute legal advice.