AI won’t prove an unfair dismissal

A case dismissed by the Federal Circuit and Family Court of Australia in part due to the applicant’s reliance on an AI chatbot has offered a timely caution against implicit trust in the technology.

The Federal Circuit and Family Court of Australia recently dismissed an application for remedies after an applicant alleged dismissal in contravention of the general protections under the Fair Work Act 2009 (Cth), in which evidence was cited but never produced.

In this way, proceedings did not need to determine whether Sterling Parts Australia Pty Ltd or Sterling Parts Melbourne breached the act at the conclusion of the delivery driver’s employment, with Judge Catherine Symons noting that the applicant did not produce any of the 38 documents within their self-cited evidence list that was said to each prove a key point of their claim – despite several requests for their receipt.

The applicant’s suggestion that they did not understand what was requested was not accepted by the court.

Similarly, Judge Symons described the applicant’s conduct as “the continuation of a pattern of obstruction and prevarication … continued in the face of clear directions from a registrar when the matter came before the court”.

Due to the non-compliance, the court dismissed the applicant’s claim, with Judge Symons highlighting the case as “a cautionary tale about the dangers of befriending artificial intelligence (AI)-powered chatbots who masquerade as legal advisors”.

According to Piper Alderman partner Tim Capelin, senior associate Emily Setter, and law clerk Julia Torrisi, the case amplifies how using AI in such contexts impedes the process for unrepresented applicants and responding employers.

In this way, they urged employers to be aware of and ensure compliance with any practice notes or other restrictions detailing the use of AI in the corresponding court or tribunal.

Employers are also encouraged to scrutinise all cases and legislation cited by an employee due to the ongoing risk that AI hallucinations, whereby cases or legislation are fabricated, are used during proceedings. Review should consider not only the existence of the case citation or legislation, but also whether it is relevant and applies to the employee’s allegations.

This also applies to documents supplied by an employee. If respondents do not already hold documents referred to by an employee in their pleadings, copies should be sought ahead of the defence’s filing for court proceedings.

In saying this, Capelin, Setter and Torrisi explained that the focus for employers should be on responding to the underlying claim and not assuming claims were prepared with the assistance of AI. They added that in the Fair Work Commission, in particular, substantive allegations should be assessed independent of the quality of their drafting.

Finally, employers should seek the court or tribunal to hold employees to account if they have failed to follow the AI conditions; and if the court is required to respond to any claims, to allow for longer time frames and additional resourcing.

Judge Symons said: “There are significant difficulties when AI answers a job description for legal advisor … because AI is not a lawyer, does not hold a practising certificate and is not authorised in any jurisdiction in Australia to engage in legal practice and to provide legal advice.”

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