I have been reminded of this film recently with the discussion about ChatGPT and its apparent benefits to clients in supposedly providing an “artificial” substitute for legal advice. Artificial intelligence is not a miracle substitute for an interactive justice system or quality legal advice. Much of the discussion about ChatGPT is hype.

For serious legal problems, most clients would not resort to a chatbot. The reason for this is that clients want as much certainty about a legal outcome as possible, and this involves analysing the legal issues from all angles as well as weighing up the advantages and disadvantages of various options. No client is going to accept the fallibilities of ChatGPT when making important life-changing or bet-the-farm decisions.

ChatGPT has limited value in certain areas of law. Take employment law as an example, my area of expertise. Employment law is very people-centric. Humans at work make unpredictable decisions. What a valid reason for dismissal is in an unfair dismissal case will change depending on the circumstances and factual matrix of each matter. ChatGPT cannot advise an employer if a “fair go all round” has been afforded to a dismissed employee because this involves an evaluative process, which ChatGPT is unable to perform.

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To test the benefits or detriments of ChatGPT to the practice of employment law, I ran some employment law questions through the platform.

I asked ChatGPT: “If a previously deleted pornographic video is found on an employee’s laptop, will this be a valid reason for dismissal?”. According to Chat GPT, the answer “would depend on a few factors, including the specific policies and rules of the employer, the jurisdiction in which the employer operates, and the nature and circumstances surrounding the discovery of the video”. 

This is not a definitive or helpful answer, and in fact, it really tells me nothing. I know from a case in which I acted for an employer in 2020 that the answer is yes (see, Simon Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021]).

Many clients are seeking advice at present about whether employers in certain industries may need to bargain with unions for a multi-enterprise agreement following the passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022.

Asking ChatGPT, “will my company be forced to bargain with unions for a multi enterprise agreement?” produces a generic response: “Whether your company will be forced to bargain with unions for a multi-enterprise agreement will depend on a number of factors, including the industrial relations laws that apply to your company and its employees, as well as any relevant industry-specific regulations and agreements.” Again, not helpful.

Perhaps I am being too hard on ChatGPT? Maybe it is better at drafting employment-related documents? When asked to “draft a termination letter for an employee who has complained too much”, ChatGPT prepares the following termination letter:

“Dear [Employee Name],

I regret to inform you that your employment with [Company Name] is terminated effective immediately.

We have carefully reviewed your recent conduct in the workplace, and it has become clear that you have been consistently complaining about various aspects of your job and the company as a whole. While we take all employee concerns seriously and are committed to providing a positive work environment, we have found that your complaints have become excessive and disruptive to the workplace.”

Yikes.

As employment lawyers know, dismissing an employee because they have made complaints or inquiries in relation to their employment is an adverse action under section 340 of the Fair Work Act 2009 (Cth)! ChatGPT does not take into account the risks when performing its tasks. Nor does it understand the doctrine of precedent.

One of the more complex questions employment lawyers often receive from corporate clients relates to whether an employee who has taken too much sick leave can be dismissed. ChatCPT informs me:

“It is important to note that dismissing an employee solely because of their absences due to illness may be considered discrimination under Australian law. If an employee has a medical condition or disability that is contributing to their absences, employers are required to consider reasonable adjustments, such as modifying job duties or providing additional support, to assist the employee in continuing to work.”

While this answer is broadly on track, an employer will need to know that there are multiple and overlapping legal risks in this area under the Fair Work Act 2009 (Cth), workers’ compensation and discrimination laws, and that detailed medical advice is necessary to determine the capacity of the employee to do the role before a decision can be made.

Finally, I asked ChatGPT: “Will employment lawyers be replaced by ChatGPT?”. The response I got was reassuring:

“While I can provide information and general guidance, I cannot replace the expertise and human interaction provided by employment lawyers. Legal advice and representation require specialised knowledge and skills that cannot be replicated by an AI language model. Furthermore, the legal profession involves ethical considerations, including confidentiality, that require a human touch. Therefore, while I can be a useful resource for information and general guidance, employment lawyers will likely continue to be an important part of the legal profession for the foreseeable future.”

Science fiction films teach us that an over-reliance on AI leads to chaos. PreCrime in Minority Report was a flawed substitute for the justice system because it was hacked, mishandled and abused. As lawyers, we should hold these same concerns about ChatGPT. For employment lawyers, ChatGPT won’t revolutionise the nature of our human-centric work, not yet anyway.

Paul O’Halloran is a partner at Dentons.