With general protections applications on the rise, and increased accessibility to artificial intelligence tools, employers are now seeing a noticeable shift in how some employment claims are being prepared and filed. While this trend has likely contributed to the increasing volume of claims before the Fair Work Commission (“FWC”), a recent decision serves as a timely reminder that reliance on AI is not without risk — particularly where it results in factual inaccuracies or misrepresentations.

Background

In a recent decision of the FWC, a general protections application was dismissed at an early stage after the FWC found that the employee had not been “dismissed” within the meaning of the Fair Work Act 2009 (Cth) (“FW Act”) and had instead resigned of his own volition. Importantly, the FWC went further, explicitly inviting the employer to make an application for the employee to pay its legal costs due to the way the claim had been pursued by the employee.

Of particular significance to the FWC’s recommendation that the employer pursue costs, was the employee’s repeated reliance on contract clauses and award provisions that did not exist, even after the employee had been warned by the FWC that misleading or false evidentiary material should not be relied upon. The FWC was clear that ignorance of the law is one thing, but repeatedly advancing incorrect contractual and award provisions was a different matter altogether.

The FWC drew a clear distinction between using AI as a tool to assist in organising submissions and using it as a substitute for reading and accurately understanding contractual and legal documents. The FWC found that the employee “repeatedly displayed a disregard for facts and… relied on incoherent legal arguments in order to contrive a basis to claim compensation”. Accordingly, the FWC welcomed a costs application from the employer.

A reassuring message for employers

While AI has lowered the barrier to initiating claims and contributed to their increased volume, it has not diluted the FWC’s expectation that applications be grounded in accurate facts and genuine legal arguments.

The decision reinforces that employers are not required to accept erroneous characterisations of contracts, awards or workplace events simply because they appear in lengthy or sophisticated‑looking submissions. Where inaccuracies are identified and persist despite clarification, the FWC may be inclined to order that an employee pay an employer’s legal costs given the employee’s seemingly unreasonable conduct.

Practical takeaways for employers

The case highlights the limitations of AI in employment disputes. In this case example, AI could not carefully read and understand employment contracts, accurately reference relevant industrial instruments, provide legal advice or understand how the FWC assesses credibility. The errors in this case are particularly striking given the relevant industrial instruments were not complex or lengthy. The employee nevertheless chose to rely on AI‑generated interpretations rather than the documents themselves, a decision that materially undermined his credibility.

For employers receiving general protections applications, particularly those that appear heavily templated or AI‑generated, it is prudent to examine claims closely for factual inaccuracies or misstatements and verify whether cited contractual, award or statutory provisions actually exist.

Importantly, if an employee persists in advancing claims based on incorrect facts or misrepresentations, especially after those issues are raised, employers may have a basis to recover their legal costs.