AI Generated Claims at the Fair Work Commission
What Australian Employers Need to Know
Recent public comments from the Fair Work Commission confirm a sharp increase in dismissal related applications across Australia. President Justice Hatcher has indicated that by the end of the 2025 to 2026 financial year, the Commission’s workload is likely to have increased by around 70 percent over three years.
In his view, a principal driver of this growth is the increasing use of artificial intelligence tools by potential litigants.
For small and medium enterprises, this development is not theoretical. It has practical and financial consequences.
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The Legal Framework Has Not Changed
Employees in Australia can lodge applications with the Fair Work Commission under the Fair Work Act 2009, including:
Unfair dismissal applications under Part 3 2
General protections dismissal disputes under Part 3 1
Unfair dismissal applications must generally be lodged within 21 days of the dismissal taking effect. General protections dismissal disputes are also subject to strict statutory time limits.
Authoritative guidance is available from:
Fair Work Commission – www.fwc.gov.au
Fair Work Ombudsman – www.fairwork.gov.au
The National Employment Standards and applicable modern awards continue to apply. The legal tests, evidentiary requirements, and procedural obligations remain exactly the same.
What has changed is how easily applications can now be drafted and lodged.
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The AI Factor: Volume Without Legal Foundation
AI tools can generate long and persuasive looking submissions in minutes. However, length does not equal legal merit.
In a recent decision, Pennisi [2026], the Fair Work Commission rejected an employee’s application to lodge a general protections claim six months out of time. The applicant filed 53 pages of material that the Commission observed appeared to have been generated using AI.
The material contained:
Repeated contentions expressed in slightly different ways
Evolving reasoning throughout the document
Reliance on non existent case law
Difficulty in identifying the relevant legal issues
The Commission has raised concerns that AI generated material can undermine the quality of submissions and create additional strain on its processes.
Proposals have been flagged requiring applicants to disclose whether AI has been used and to hyperlink case citations so authorities can be verified. Justice Hatcher has indicated that non compliance may result in dismissal of an application or an order for costs.
For employers, the message is clear. The number of claims may increase, but the legal strength of those claims may not.
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Why This Matters for SMEs
For large organisations with in house legal teams, an increase in applications is an operational challenge.
For SMEs, it can be disruptive and expensive.
Even where a claim lacks merit, employers must:
Prepare and lodge a formal response within strict deadlines
Collate employment records and documentation
Attend conciliation conferences
Potentially prepare witness statements and submissions
With the Commission reporting that conferences and hearings are being listed later due to workload pressures, disputes may remain unresolved for longer. That uncertainty affects business continuity, leadership focus, and team morale.
AI has lowered the barrier to entry for filing a claim. It has not lowered the legal threshold for success.
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The Real Risk: Enhanced Confidence Without Legal Understanding
AI can enhance the presentation of a claim. It cannot create legal rights that do not exist.
One of the emerging challenges is that AI tools can give individuals confidence in arguments that are legally flawed. Submissions may look sophisticated, cite legislation, and reference case law, yet misapply the law or rely on authorities that do not exist.
Under the Fair Work Act, the Commission must assess matters based on established statutory criteria.
For unfair dismissal claims, the Commission considers factors including:
Whether there was a valid reason related to capacity or conduct
Whether the employee was notified of that reason
Whether the employee was given an opportunity to respond
Whether procedural fairness was afforded
The size and resources of the employer’s business
For general protections matters, the reverse onus of proof applies, meaning the employer must demonstrate that adverse action was not taken for a prohibited reason.
These are technical legal tests. They are not defeated by lengthy submissions or assertive language.
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Why Specialist HR Support Is Critical
The rise in AI generated claims does not mean employers are powerless. It means preparation and expertise matter more than ever.
Specialist employment relations support enables businesses to:
Identify early whether a claim has jurisdictional defects
Detect inconsistencies or fabricated authorities in submissions
Assess exposure based on the actual statutory test
Develop a commercially sound strategy, whether that involves defence or early resolution
Ensure documentation and processes are defensible
At HR Excellence Partners, we support SME businesses with:
HR compliance aligned to the Fair Work Act and modern awards
Performance management frameworks that meet procedural fairness standards
Lawful and well documented termination processes
Strategic responses to Fair Work Commission applications
HR Health Checks that identify risk before a dispute arises
Our services include employment relations advice, contracts and policies, lifecycle management, and compliance support tailored specifically to SMEs . We also offer structured HR Health Checks and flexible retainer support for businesses that need on call expertise without the overhead of a full time HR function .
The earlier you engage support, the stronger your position.
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A Practical Call to Action for Business Owners
AI is not going away. Nor is the Fair Work Commission’s jurisdiction.
The key question for business owners is simple:
Would your current processes withstand scrutiny under the Fair Work Act?
If you are unsure, now is the time to review:
Your employment contracts
Your policies and procedures
Your documentation practices
Your performance management approach
Your termination processes
Waiting until an application is lodged can limit your options. Acting early can prevent disputes altogether or place you in a strong defensive position.
If you receive an application from the Fair Work Commission, or if you want to ensure your business is protected before that occurs, seek specialist advice promptly.
HR Excellence Partners provides practical, compliant, and commercially focused employment relations support that protects your business, saves time, and reduces risk.
In an environment where AI can amplify misunderstanding and overconfidence, informed HR expertise is not a luxury. It is a safeguard for your business.
