FWC takes stand against surge in AI-assisted unfair dismissal cases

In a precedent-setting outcome, the Fair Work Commission (FWC) has invited an employer to seek costs against a former employee who misleadingly used AI in an unfair dismissal case, marking a milestone moment for the commission which has struggled to keep up with a tech-induced burdening caseload. The case involved a former employee for an earth-moving company, who, during the case, used AI which produced “egregious misrepresentations” of his contractual agreement, prompting FWC deputy president Nicholas Lake to invite the employer to make a costs application for “display[ing] a disregard for facts” and “relying on incoherent legal arguments”.

This remarkable development demonstrates the strongest action taken by the FWC against a surge of AI-assisted submissions that has significantly strained its resources and hindered its ability to work on major cases. The commission’s workload has increased by 70% per year compared to 2023 levels, with the “widespread use of AI-generated language in applications” being the biggest driver. The strong uptick in work has even forced the FWC to delay a major hearing on employee consultation for AI-related job cuts to 2027, with cases facing a 4-9 month delays.

The commission has demonstrated the impetus for addressing the usage of AI in submissions, setting new requirements regarding disclosure and fact-verification, with failure to comply resulting in applications being potentially dismissed and cost orders being filed against the applicant. This action is critical to protect the integrity of the workplace umpire, as well reduce the burden placed on employers which are likely to face increasing costs due to higher claim volumes and greater administrative disruptions. Perhaps disgruntled former employees may think twice before bringing frivolous AI-generated claims before the commission.