The practical message is straightforward. AI can help an employer sort a large email trail or produce a first draft, but it cannot replace the employer’s responsibility for accurate evidence and a fair process. The Fair Work Commission’s announcement about using AI in Commission cases confirms that the new guidance note sets three requirements for documents prepared with GenAI.

What the Fair Work Commission’s AI guidance means for employers

From 20 October 2026, an employer using GenAI in a Commission case must be ready to explain the use. The requirements are:

1. Tell the Commission when and how GenAI was used. This covers the role the tool played in preparing the document, not merely whether someone used an AI application at some point.
2. Check that the document is correct and relevant. A human reviewer must test the output against the evidence and the issues in dispute.
3. Protect the integrity of witness material. If the document is a witness statement or declaration, the employer must check that it is based on the witness’s own knowledge, reflects the witness’s own words and is true to the best of that person’s knowledge.

The guidance is relevant to unfair dismissal responses, general protections matters, award or agreement disputes, bullying applications, right to disconnect disputes and other proceedings. It also matters before a dispute formally escalates: an inaccurate AI summary can distort an investigation, disciplinary decision or settlement assessment.

Why AI use matters in an unfair dismissal response

In an unfair dismissal matter, an employer’s credibility is part of the case. The Commission may need to assess the reason for dismissal, the warnings given, the employee’s response, the decision-maker’s evidence and whether the process was reasonable in the circumstances. A polished AI draft does not make a weak record stronger.

Employers should therefore treat AI output as an unverified work product. Keep the original emails, policies, timesheets, employment contract, meeting notes and signed warnings. Check the draft line by line against those records. The Fair Work Ombudsman employer resources can help with baseline workplace obligations, but case-specific Commission material still needs careful evidence review.

How to use AI safely when preparing Commission documents

1. Define the permitted use

Decide what AI may and may not do. Lower-risk uses include creating a chronology from already-reviewed records, identifying duplicate documents, suggesting headings or converting a timeline into a table. Higher-risk uses include drafting factual allegations, interpreting a witness’s state of mind, choosing the reason for dismissal or producing legal conclusions without lawyer review.

2. Protect confidential information

Before uploading information, check the tool’s data controls and your business policy. Employment files can contain health information, payroll data, allegations, family details and commercially sensitive material. Use approved business accounts and minimise the information provided. If a task can be completed with names replaced by labels, do that.

3. Keep an AI-use register

Record the date, user, tool, purpose, input material, output used and reviewer. Also note whether the output was accepted, corrected or rejected. This makes the eventual disclosure accurate and gives the employer an audit trail if the other party questions how a document was prepared.

4. Verify the evidence

Use a source-checking checklist. Confirm names, dates, job titles, pay figures, award references, quotations, attachments, meeting attendees and procedural steps. Search every case citation and legislation reference independently. If a fact cannot be traced to a reliable source record, do not include it as fact.

5. Rebuild witness evidence with the witness

A witness statement is not a creative writing exercise. The witness should review each paragraph, correct wording, add what they personally remember and remove anything they did not see, hear or do. The final statement should sound like the witness and distinguish personal knowledge from information learned later.

For a practical record-management framework, employers can also review Fair Work Centre’s guidance on HR best practice for employers and use general employment documents and workplace templates to standardise approvals.

What employers should change before 20 October 2026

Businesses should also train managers not to paste sensitive employee material into unapproved tools. A short approval workflow is usually more effective than a blanket ban: identify the permitted task, protect the data, verify the output, obtain witness approval where relevant, and record the use.

AI, employment contracts and workplace records

The same discipline applies outside a Commission hearing. An AI-generated employment contract, warning letter, performance plan or termination letter can contain the wrong employee details, an inconsistent notice period or a promise that conflicts with the applicable award and the National Employment Standards. Use a controlled template, check the current law and have an authorised person approve the final document.

This is especially important after wage changes or award variations. Keep payroll and HR records that show what was checked and when. For contract work, employers can review the employment contracts guide and Fair Work Act 2009 source legislation before relying on an AI-generated explanation.

What not to do with AI in a Commission case

• Do not file a document simply because it reads confidently or looks professionally formatted.
• Do not ask AI to invent missing facts, fill gaps in a witness’s memory or create authorities that support the employer’s preferred outcome.
• Do not let AI decide whether a dismissal was procedurally fair, whether a worker is covered by an award or whether a response should admit or deny an allegation.
• Do not delete the source records or the review history after using AI.

The Commission’s announcement also refers to new resources, including a Using AI to help you with your case webpage and video. Application and response forms are expected to be updated by 20 October 2026 to help parties comply. Employers should monitor the Commission’s guidance and brief their employment lawyer or HR adviser before their next filing.

Employer checklist for AI-assisted case preparation

Before filing, ask:

1. Have we recorded when and how GenAI was used?
2. Can every material fact be traced to a source document or a witness’s personal knowledge?
3. Has a human checked accuracy, relevance, names, dates, figures, authorities and attachments?
4. Has each witness approved wording that reflects their own knowledge and words?
5. Have we protected confidential information and retained the original records?
6. Has the authorised decision-maker approved the final response or statement?

These checks do not make AI a substitute for legal advice. They create a defensible process so that technology assists administration without undermining the employer’s evidence. If your business is responding to an unfair dismissal or general protections claim, get advice early and preserve the complete employment record.

General guidance only: This article explains the FWC announcement and is not legal advice about a particular employee, dispute or filing.