Case

Kalleske v McGuire (2026)

An apprentice hairdresser worked for a salon employer for 16 months, during which time, she performed duties including colouring, shampooing, cutting and styling hair, cleaning, answering the phone and managing client bookings.

Following her employment termination, the apprentice made several unsuccessful attempts to obtain unpaid entitlements via various avenues before seeking the imposition of pecuniary penalties on the employer for alleged serious contraventions of the Fair Work Act 2009 (Cth) (FW Act), including:

• Failing to pay minimum rates for work not as an apprentice, overtime rates for working more than the agreed part-time hours, and Saturday loadings: The apprentice was paid the same rate for all her hours of work, including as an apprentice on Saturdays, and for all regular hours not as an apprentice on weekdays and Saturdays, with no overtime rates or loading.
• Failing to allow meal and rest breaks: The apprentice was not allowed to take meal breaks during her shifts, and she was regularly required to work through scheduled breaks.
• Failing to make complying superannuation contributions: The apprentice received only two superannuation payments during her employment, with both made only following repeated requests from the apprentice.
• Preventing the right to disconnect: The employer requested 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.

Verdict

The South Australian Employment Tribunal found in the apprentice’s favour for all claims except for the claim of the breach of the right to disconnect.

The proven claims were found to be serious within the meaning of section 557A of the FW Act because they were all knowingly committed by the employer.

In relation to the unproven claim, the Tribunal found that the 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 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.

Lessons

Section 333M of the FW Act, 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. This decision highlights the difference between unwelcome communication out of work hours and enforcing contact in breach of the right to disconnect. The bar to breaching the right appears from this decision to be quite high – a no-doubt welcome development for employers. Even so, you should be cautious when attempting contact with employees outside work hours, especially if this contact is frequent.

Please note: This article is a factual report of a legal judgment, which is current at the time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.