The overall workload of the FWC has seen a 70% increase over the past three years, largely attributing to the proliferation and use of AI in unfair dismissal and general protection applications. This has led to the publication of a new guidance on the use of Generative AI in Commission cases. The FWC has also observed longer, more formal submissions and more structured claims from self-represented applicants. The risks it identified include inaccurate or fabricated content, and unrealistic expectations about the prospects and likely compensation of a claim.
The three requirements
A party who uses GenAI must:
- State in the document that GenAI was used and how it was used.
- Check that all facts, evidence, cases, legislation, references, and quotations are accurate, relevant and properly sourced (professional representatives must also hyperlink every case cited).
- Ensure any witness statement is based on the witness’s own knowledge and words, with a declaration to that effect.
The Guidance Note also cautions against entering personal or confidential information into public GenAI or to any GenAI that may not keep information secure from disclosure.
What earlier cases show
In Khan v Aldi Pty Ltd [2026] FWC 3144, an applicant was dismissed three days before completing the six-month minimum employment period. His AI-generated application and later correspondence repeatedly relied on the wrong date under section 383 of the Fair Work Act. This continued after the Commission explained the correct test and warned him of a possible costs order. The Deputy President held that continuing the claim was unreasonable under section 400A and ordered him to contribute to the respondent’s costs.
In Application by De Bruyn [2026] FWC 2887, the Commission made stop bullying orders in the applicant’s favour. It nonetheless criticised correspondence sent on her behalf that appeared to be AI-generated, describing it as ‘lengthy, wide-ranging, replete with generalisations, repetitive and often coached in accusatory language’. The Commission found this led the other party to disengage rather than respond to legitimate concerns. It ordered both parties to stop using AI to prepare correspondence between them and to respond to issues raised in a ‘meaningful way’.
References
Fair Work Commission, Guidance Note: Use of generative artificial intelligence in Commission cases, 24 August 2026 fwc.gov.au/documents/resources/guidance-note-use-of-generative-ai-in-commission-cases.pdf
Fair Work Commission, President’s Statement: Use of AI in Fair Work Commission Proceedings, 24 August 2026 fwc.gov.au/documents/consultation/presidents-statement-use-of-ai-in-fwc-proceedings-2026-08-24.pdf
Sadnan Khan v Aldi Pty Ltd [2026] FWC 3144.
Application by De Bruyn [2026] FWC 2887.