The Commission said the case highlights the danger of relying on artificial intelligence for legal advice
The Fair Work Commission (FWC) recently dismissed an application for extension of time involving a worker who relied on artificial intelligence to prepare his general protections claim almost two and a half years after his employment ended.
The case arose when the worker used ChatGPT to draft his application and follow legal advice from the AI system, resulting in what the Commission described as "hopeless" proceedings that unnecessarily wasted commission and employer resources.
The worker argued he should be granted an extension of time to file his dismissal claim due to a lack of awareness of his workplace rights and concerns about potential retaliation from his former employer.
He maintained that these factors constituted exceptional circumstances warranting the Commission's consideration of his late application, despite the significant delay since his resignation in October 2022.
The employment relationship ended when the worker resigned in writing on 19 October 2022, but he subsequently sought to characterise this resignation as a dismissal under general protections legislation.
According to the FWC, a resignation may constitute a dismissal in circumstances where an employee is forced to resign due to employer conduct, though the Commission did not need to determine this issue given its decision on the extension application.
The statutory framework requires applications under section 365 of the Fair Work Act to be made within 21 days of dismissal, with extensions only available in exceptional circumstances.
The Commission must consider factors including the length of delay, actions taken to dispute the dismissal, prejudice to the employer, application merits, and fairness between workers when determining whether to grant extensions.
In this case, the delay extended to 919 days - almost two and a half years after the worker's employment ended.
This extraordinary delay significantly exceeded typical extension requests and placed the application well outside normal parameters for workplace dispute resolution, creating the foundation for the Commission's concerns about the claim's viability and timing.
The critical turning point in the case occurred when the worker confirmed during the conference that he had used ChatGPT, an artificial intelligence large language model, to prepare his application.
The Commission noted this was evident from significant deficiencies in the application, which failed to address required elements for establishing contraventions of Part 3-1 of the Fair Work Act.
The application included an extract from ChatGPT's advice suggesting that various employment and statutory obligations had been contravened by the employer.
The AI system recommended the worker commence multiple legal actions against the company, including the section 365 application, though the Commission found no basis for this advice given the circumstances presented.
ChatGPT had also advised the worker to consult a legal professional or union representative to determine appropriate action, but he chose not to follow this recommendation.
Instead, the worker simply followed the AI system's suggestion to commence proceedings, highlighting what the Commission described as "the obvious danger of relying on artificial intelligence for legal advice."
The FWC expressed significant concern about the quality and merit of the application, describing it as "best described as hopeless" and noting it unnecessarily wasted Commission and employer resources.
The tribunal found the worker's reliance on AI-generated legal advice had resulted in fundamentally flawed proceedings that lacked a proper legal foundation.
The Commission emphasised that the worker's explanation for delay - "lack of awareness of my workplace rights" - did not constitute exceptional circumstances, stating:
"The Commission has repeatedly stated that ignorance of the statutory time limit is no reason for delay."
This reinforced the established precedent that unfamiliarity with legal requirements cannot justify extensions beyond statutory deadlines.
The worker's second justification regarding concerns about employer retaliation was found to be unsupported by evidence.
The Commission noted he had taken no action prior to filing his application almost two and a half years after his employment ended, undermining claims that fear of reprisal had prevented earlier action.
The employer argued it would suffer significant prejudice from the application, particularly given the lengthy delay and lack of warning that events from over two years earlier would be challenged.
This prejudiced argument gained strength from the extended timeframe, which exceeded normal expectations for workplace dispute resolution and evidence preservation.
The Commission accepted that requiring the employer to revisit and defend actions from such a distant period created an unfair burden, particularly when no contemporaneous challenge had been mounted.
The tribunal noted this prejudice as a significant factor weighing against granting the extension, emphasising the importance of timely dispute resolution in employment matters.
The combination of excessive delay, lack of merit, and employer prejudice created a compelling case against extension.
The Commission found these factors collectively demonstrated that exceptional circumstances, while technically present due to the unusual nature of ChatGPT reliance, actually weighed against rather than in favour of granting additional time.
The decision represents a significant warning about artificial intelligence use in legal proceedings, with the Commission explicitly stating:
"The circumstances highlight the obvious danger of relying on artificial intelligence for legal advice." This represents one of the first recorded instances of an employment tribunal directly addressing AI-generated legal advice in workplace dispute proceedings.
The FWC's criticism extends beyond the specific application to broader concerns about AI reliability in legal contexts.
The Commission found that ChatGPT's advice lacked proper foundation and led to proceedings that wasted tribunal resources, establishing potential precedent for how employment tribunals may view AI-assisted legal claims.
The Commission found that exceptional circumstances did exist - specifically, the lengthy delay and the worker's reliance on ChatGPT to bring an unmeritorious claim. However, the tribunal determined these exceptional circumstances actually weighed against rather than in favour of granting an extension of time.
The FWC stated: "I find that there are exceptional circumstances surrounding [the worker's] application, being the lengthy delay in bringing the application and [the worker's] use of, and reliance upon, Chat GPT to bring what appears to be an altogether unmeritorious claim. I also find that those circumstances tell against granting an extension of time."
This reasoning creates important precedent for how exceptional circumstances may be interpreted in extension applications, demonstrating that unusual circumstances do not automatically favour workers if those same circumstances indicate procedural impropriety or lack of merit.
