By Mike Toten Freelance Writer

An employer who used ChatGPT to prepare a text message telling an employee he had abandoned his employment has had the Fair Work Commission (FWC) interpret it instead as termination at the employer’s initiative. The FWC found that the employee was legitimately on leave and the matter will now proceed to a hearing.

Facts of case

The employee was a legal assistant for a law firm. Over a two-month period, he took nine days of personal leave, arrived late for work twice and took two afternoons off without authorisation or explanation. Eventually, he arranged with a Director of the firm to take personal leave one day and, when unwell the next day, took annual leave. All absences were supported by medical certificates.

The employer claimed that there had been ongoing problems with the employee’s job performance and attendance.

Unaware of the reasons for the final two-day absence, another Director used ChatGPT to compose a text message to the employee asserting that he had abandoned his employment. The text was headed “Notice of Employment Termination Due to Abandonment”.

The FWC found that the clear intention of the text message was to terminate his employment.  The Director claimed that he later rescinded the text message, but the FWC accepted the employee’s claim that he was entitled to accept it, and the employer could not unilaterally rescind the message.

The employee claimed that the message was a clear termination of his employment, and could not be interpreted as stating that he had abandoned his employment. Therefore, he did not return to work after receiving the text. The employee also stated that he told the employer that his “notice of termination” could not be rescinded without his agreement.

Decision

The FWC rejected the employer’s claim of abandonment of employment and allowed the employee’s general protections claim to proceed to a hearing. The employee’s action of taking leave to cover his absences showed his intention to continue his employment.

The contents of the text message made it clear that it was a notice of termination of employment. Although the parties later had some discussions about resuming employment, the employer had not produced a clear offer of re-employment.

What this means for employers

This case is one mainly caused by poor communication between two Directors. It is also a reminder that extensive attempts to communicate with an employee are required before making a decision that abandonment of employment has occurred.

The FWC confirmed that a notice of termination cannot be rescinded without the employee’s agreement.

Users of AI for business communications should ensure they are well aware of its potential limitations, such as difficulty taking into account the specific circumstances of a case, and the need to check that correct terminology is used.

Read the judgment

Daniel O’Hurley v Cornerstone Legal Wa Pty Ltd [2024] FWC 1776 (13 July 2024)