Unfair Dismissal Changes 2026: 'On the Papers' Decisions, Limits on Repeat Weak Claims and the FWC's AI Rules From 20 October

Two things changed at the Fair Work Commission in 2026, and both affect anyone making or defending an unfair dismissal claim.

• New law, in force since 7 July 2026. The Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026 (Act No. 62 of 2026, assented 6 July 2026) lets the Commission decide an unfair dismissal claim "on the papers" without a conference or hearing, but only if both sides consent. It lets a Full Bench stop a person whose claim was thrown out as frivolous, vexatious or hopeless from filing again without permission. And it removes the separate "were you actually dismissed?" fight that had been holding up general protections and unlawful termination claims.
• New rules on AI, from 20 October 2026. If you use generative AI to help prepare an application, response, submission or witness statement, you must say so, check every fact, case and quote yourself, and state that you did.

What did not change: you still have 21 days from the date the dismissal took effect to lodge an unfair dismissal claim, and employers are still asked to lodge their Form F3 response within 7 days. The test for whether a dismissal was harsh, unjust or unreasonable is also unchanged.

The bill was introduced on 3 June 2026, passed both Houses on 30 June and received Royal Assent on 6 July 2026 as Act No. 62 of 2026. The Fair Work Commission changes are in Parts 5 to 8 of Schedule 1, which started the day after assent: 7 July 2026. The Senate's amendments dealt with bargaining determinations and did not touch the dismissal provisions.

The process changes apply to applications lodged on or after 7 July 2026. A claim lodged before then runs under the old rules. For general protections and unlawful termination disputes, the new rules apply to any application made from 7 July, even if the dismissal itself happened earlier.

Before 7 July, section 397 said the Commission must conduct a conference or hold a hearing in an unfair dismissal matter "if, and to the extent that, the matter involves facts the existence of which are in dispute" (FWC practice note). Almost every contested dismissal involves disputed facts, so almost every one that did not settle went to a conference or hearing.

New section 397(2) now reads:

"However, the FWC may make a decision in relation to the matter without either conducting a conference or holding a hearing if: (a) it appears to the FWC that the matter can be adequately determined in the absence of the parties to the matter; and (b) the parties to the matter consent to the FWC making a decision in relation to the matter without conducting a conference or holding a hearing."

Both conditions must be met. The Commission cannot decide your claim on the papers unless you and the other side agree, and even with that agreement, the Commission member must think the written material is enough. The Explanatory Memorandum says the aim is to deal more flexibly with "less complex applications" while the Commission handles historically high caseloads. Section 536LX(2) gives the same power for unfair deactivation and unfair termination claims by regulated workers, such as gig workers and road transport contractors.

What this means in practice: if you agree to a decision on the papers, your written material is your whole case. You do not get to explain things in person, and you cannot cross-examine the other side's witnesses. Agreeing can be quicker and cheaper, but only if your documents tell the full story on their own.

This is the change most often overstated, so here is exactly what is new.

Not new for unfair dismissal: section 587 has long allowed the Commission to dismiss an application that is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Section 399A also already lets an employer ask for an unfair dismissal claim to be dismissed if the applicant unreasonably fails to attend, fails to follow directions, or does not discontinue after a settlement. These powers applied to unfair dismissal claims before July 2026 and still do.

New: section 587A orders against repeat filers. If the Commission dismisses an application because it is frivolous or vexatious (s 587(1)(b)) or has no reasonable prospects of success (s 587(1)(c)), the Commission can now order that the applicant "must not make a further application to the FWC of a kind specified in the order without the permission of the FWC, given by the President, a Vice President or Deputy President". The safeguards built into the section are:

• only a Full Bench can make the order (s 616(4C))
• the applicant must first get a reasonable opportunity to make submissions, and the Commission must take them into account (s 587A(2))
• the Commission can make the order on its own initiative or because the other party asks for it (s 587A(3))
• an application lodged in breach of the order "has no effect" (s 587A(5)), and a refusal of permission cannot be appealed within the Commission (s 587A(6))
• breaching the order is not a criminal offence (s 675(2)(ib)).

The Explanatory Memorandum says these orders are "not to be made lightly". Their purpose is to protect other parties and the Commission from "baseless and repetitious applications", not to punish anyone. One dismissed claim does not get you banned. The order is aimed at a pattern of unmeritorious applications.

New: gig and road transport claims. Before July, section 587(2) stopped the Commission dismissing unfair deactivation and unfair termination applications by regulated workers (s 536LU) as frivolous, vexatious or without reasonable prospects. That exception has been removed, so those claims are now treated the same way as unfair dismissal claims. The exception still applies to general protections dismissal and unlawful termination applications, because those can go on to court.

This change does not affect unfair dismissal claims directly, but it matters if you are deciding which claim to make. A Full Federal Court decision known as Milford held that a person had to actually have been dismissed before they could apply for the Commission to deal with a general protections dismissal dispute. After that decision, if an employer objected that there was no dismissal (because the employee resigned, for example), the Commission had to make an arbitrated ruling on that question before it could hold a conciliation conference.

From 7 July 2026, new section 365 only requires the applicant to allege that they were dismissed in breach of the general protections. New section 368(1A) says that "in order to commence dealing with the dispute (other than by arbitration) ... the FWC is not required to determine whether or not the person was dismissed." Sections 773 and 776(1A) make the same change for unlawful termination. The 21-day time limit now runs from when the alleged dismissal took effect, and the Explanatory Memorandum says the Commission can look at the real facts rather than the date written on the form, for example if a date has been falsified to fit within the time limit.

Whether you were really dismissed still matters. It can be raised in conciliation, and it must still be decided if the matter goes to arbitration or court. The difference is that it no longer holds up the first conference. New section 625(3A) also lets the President delegate, in writing, the power to issue the certificate that lets an unresolved dispute move on to arbitration or court to senior Commission staff (APS 6 and above), so parties are not left waiting for a member to do it.

On 24 August 2026 the Commission published its Guidance Note: Use of generative artificial intelligence in Commission cases, which commences on 20 October 2026 (FWC announcement). The President's statement released the same day explains why: the Commission's total workload grew by more than 70% in the three years to the end of 2025–26, mostly through unfair dismissal and general protections applications, and the Commission "infer[s]" that this is "principally the result of the increasing use of AI tools by potential litigants". In research the Commission commissioned, about 40% of surveyed applicants said they had used AI to prepare or manage their case (President's statement).

If you use generative AI to help create, write, edit or prepare any document you lodge, three requirements apply:

1. Say that you used it, and how. For example, to research the law, organise a timeline, translate, or draft content.
2. Check everything yourself, then state that you have. Every fact and piece of evidence must exist and be correct. Every case and section of legislation must exist and say what you claim it says. Every quote must be accurate. The guidance note says you cannot meet this by asking the same AI tool, or a different one, to check the document. A person has to do the checking.
3. Witness statements must be in the witness's own words and from their own knowledge. AI can transcribe or translate, but it should not write the facts.

Using AI only to check spelling or grammar, or to format a document, does not count. If you do not comply, your documents may be given less weight or disregarded, you may be ordered to pay the other side's costs, or your case may be dismissed. The guidance note also warns against putting other people's personal information, or confidential material such as what was said in settlement talks, into public AI tools.

The Commission is changing its application and response forms in all individual rights matters. From 20 October, everyone completing those forms will fill in a section on AI use and sign a declaration that they checked the details, whether or not they used AI. Lawyers, paid agents, HR advisers and union or employer association officials who use AI must also include hyperlinks to every case they cite.

• The 21-day deadline. An unfair dismissal application must still be lodged within 21 days after the dismissal took effect (s 394(2)). Late claims need "exceptional circumstances" (s 394(3)), and most fail. Read why one worker lost over a wrong form lodged on day 21.
• The employer's response. The Commission still tells employers: "You must respond within 7 days using Form F3" (FWC), and still contacts the applicant within 7 days of the application (FWC process page).
• Who can claim. The minimum employment period, the employee high income threshold and the genuine redundancy and Small Business Fair Dismissal Code exclusions were not changed by this Act.
• The test and the remedies. The Commission still asks whether the dismissal was harsh, unjust or unreasonable, and can still order reinstatement or compensation.
• Conciliation first. Most claims still go to a conciliation conference before anything else. A decision on the papers is an option for claims that do not settle, not a replacement for conciliation.

1. Lodge inside 21 days, and lodge the right form. Work out whether you need an unfair dismissal claim (Form F2) or a general protections claim (Form F8). Our unfair dismissal checker and which-claim triage take a few minutes. Our unfair dismissal claim guide walks through the form.
2. Build the claim from your own documents. Use your contract, payslips, the termination letter, rosters, emails and texts, and the dates of every warning or meeting. A claim that is specific and backed by evidence is unlikely to be dismissed as having no reasonable prospects. A claim full of general complaints and legal language is much more vulnerable.
3. If you use AI, follow the rules from 20 October. Declare it, check every fact and every case it gives you against the real source, and write any witness statement in your own words. AI tools can invent cases or apply overseas law that does not exist in Australia, and the Commission warns that they can give you "unrealistic and over-optimistic predictions" about whether you will win.
4. Think carefully before agreeing to a decision on the papers. It can be faster. But if your case depends on whose version of events is believed, a conference or hearing where evidence can be tested may suit you better. You can say no.
5. Do not refile a claim that has been dismissed. A second weak application is exactly what can lead to a section 587A order. If your claim was dismissed, get advice about an appeal or a different type of claim instead.

1. Lodge the F3 within 7 days. Nothing in the Act changes this. Our guide to responding to an unfair dismissal claim covers what to include and when to raise a jurisdictional objection.
2. Write your response as if it might be the whole case. If both sides later agree to a decision on the papers, the F3 and your documents could be all the member sees. Attach the warnings, the investigation notes and the termination letter, and set out the dates clearly.
3. Use the dismissal powers for claims that are genuinely hopeless. Section 587 has always been available for unfair dismissal claims. If the same person keeps filing applications that get dismissed, you can now ask for a section 587A order. Expect the Commission to use it sparingly.
4. In general protections matters, expect conciliation before any ruling on whether there was a dismissal. An objection that the employee resigned no longer delays the first conference. Prepare for conciliation as well as the objection.
5. The AI rules apply to you too. From 20 October, any F3, submission or witness statement prepared with AI help needs the disclosure and the human check. HR advisers who represent the business count as professional representatives and must hyperlink every case they cite. Keep employees' personal details and settlement discussions out of public AI tools.

It always could, in limited cases. Section 587 lets the Commission dismiss an application that is frivolous, vexatious or has no reasonable prospects of success, and section 399A lets it dismiss a claim if, for example, the applicant unreasonably fails to attend. What is new since 7 July 2026 is that the Commission can also make a final decision on the merits without a conference or hearing under s 397(2), but only if both sides consent and the member thinks the written material is enough.

Generally no. The transitional provisions apply the on-the-papers power, the section 587A orders and the general protections changes to applications made on or after 7 July 2026. One exception: the President's power to delegate the certificate in general protections and unlawful termination disputes to senior Commission staff also applies to disputes that were already under way on 7 July 2026.

No. Unfair dismissal applications are still due within 21 days after the dismissal took effect (s 394(2)). For general protections and unlawful termination applications, it is still 21 days, now counted from when the alleged dismissal took effect.

Yes, but from 20 October 2026 you must say that you used it and how, check every fact, case and quote yourself, and state that you have done so. Witness statements must be in your own words. If you do not, your documents may be given less weight, you may be ordered to pay costs, or your case may be dismissed. Using AI only for spelling, grammar or formatting does not need to be disclosed.

Not automatically. A section 587A order can only follow a dismissal on frivolous, vexatious or no-reasonable-prospects grounds. It must be made by a Full Bench after you have had a chance to make submissions. Even then, it does not ban you from the Commission outright: it requires you to get permission from the President, a Vice President or a Deputy President before filing the kinds of application listed in the order.

• Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026 (No. 62, 2026), Federal Register of Legislation
• Parliament of Australia: bill homepage, text as passed, Explanatory Memorandum and Senate amendments
• Fair Work Ombudsman: Building Cooperative Workplaces reforms
• Fair Work Commission: Guidance note on the use of generative AI in Commission cases (commences 20 October 2026)
• Fair Work Commission: President's statement on the use of AI in Commission proceedings (24 August 2026)
• Fair Work Commission: Respond to a claim for unfair dismissal (Form F3)

This is general information, not legal advice. Last checked against the sources above on 3 October 2026. If you have been dismissed or have received a claim, get advice about your own situation, and remember the 21-day clock is already running.