File notes for employment lawyers: what to record, and when it matters

Why employment matters are unusually note-dependent

Most employment disputes are won or lost on dates, reasons and what was said in a handful of conversations. The limitation periods are short. The client often calls in a state, days after being walked out, with a termination letter and a head full of grievances. Your note of that call is the only record of what they told you before the story was rehearsed, and of what you told them about time.

Two general duties sit behind this. Under the Australian Solicitors' Conduct Rules you must act competently and diligently (r 4.1.3) and follow a client's lawful, proper and competent instructions (r 8.1). A note is how you show you did both. If a client later says nobody mentioned the deadline, or that they never agreed to settle for that figure, the contemporaneous attendance note is your evidence. Our guide to file notes as evidence covers why a note made at the time carries more weight than one reconstructed later, and the legal file note requirements piece sets out the wider professional obligations.

Key Fair Work deadlines and what your note should show

These are the time limits that most often drive the first advice call. All references are to the Fair Work Act 2009 (Cth) unless stated. Extensions are possible for the 21-day applications, but only in exceptional circumstances, so treat the 21 days as the real deadline.

If an extension is ever needed, the Commission weighs the reason for the delay, whether the person learned of the dismissal after it took effect, any action taken to dispute it, prejudice to the employer, the merits and fairness between people in a similar position (s 394(3), with parallel factors in s 366(2)). A clear note that you advised the deadline on day three, and the client chose to wait, will matter on the first of those factors. It protects you if the client blames the delay on the firm.

The first call: what to capture

Dates, and how you know them

The dismissal 'took effect' on the day the employment actually ended, which is not always the date on the letter. Pay in lieu, garden leave, a resignation the client says was forced, or a dismissal communicated by text late at night can all move the date. Write down the date you have used, what the client told you it was based on, and whether you have seen the document. Then write the expiry date in full. 'Dismissed 3 September, 21 days ends 24 September' is a note someone else in the firm can act on if you are away.

Eligibility facts for unfair dismissal

Unfair dismissal is only open to a person 'protected from unfair dismissal' under s 382. That means completing the minimum employment period in s 383 (6 months, or 1 year where the employer is a small business with fewer than 15 employees), and either being covered by a modern award or enterprise agreement or earning under the high income threshold. The claim also fails if the dismissal was a genuine redundancy (s 389), or if a small business employer complied with the Small Business Fair Dismissal Code (s 388). Your note should record the facts on each point as the client gave them, including where they were unsure. 'Client thinks about 12 staff, unsure if casuals are counted' tells the next person exactly what to check.

The election between claims

Section 725 stops a dismissed person from bringing more than one of the listed applications or complaints about the same dismissal. So the first advice is often a choice: unfair dismissal, general protections, unlawful termination, or a discrimination complaint. Record the options you put, the main differences you explained (compensation cap, onus, forum, costs risk) and which one the client instructed you to pursue. If they want time to think, record that too, with the date you told them they must decide by.

General protections and adverse action

Adverse action claims turn on reasons. Section 340 protects workplace rights (including making a complaint or inquiry about employment) and s 351 covers protected attributes such as age, sex, disability and family or carer's responsibilities. Under s 361, once the employee alleges action was taken for a prohibited reason, it is presumed to be so unless the employer proves otherwise. For an employee, the note needs the sequence: what complaint or right was exercised, when, to whom, and what happened next. For an employer, it needs the decision-maker's actual reasons in their own words, recorded early, because the employer will have to prove them.

Acting for employers vs employees

The note's job changes depending on which side you are on.

• Employee clients. Capture the story before it hardens: what was said in the termination meeting, who was there, any warnings or performance process, and what the client has already sent the employer. Record whether they have other work, their pay details, and what outcome they want (reinstatement, money, a reference, a clean exit).
• Employer clients. Your client is the company. Record who gave you instructions, their role, and whether they have authority to settle and up to what figure. Identify the decision-maker and record their reasons for the dismissal or action at the time. Note which documents exist (policies, warnings, performance records, emails) and your advice about preserving them.
• Both. Record the conflict check result before the substance, especially in smaller towns and industries where the other side, or a witness, may already be a client.

Settlement instructions and deeds

Most dismissal matters settle, often at or after a Fair Work Commission conference. Settlement is where loose instructions cause the most trouble. When a client authorises an offer or acceptance, the note should read like a contract term sheet.

• The exact figure, and whether it is gross or net of tax.
• What the payment is characterised as, and your advice on tax treatment (or that you told the client to get tax advice).
• Non-money terms: agreed reference, statement to staff, return of property, resignation in lieu, confidentiality, non-disparagement.
• The scope of the release, and that you explained which claims it bars.
• Authority limits: 'instructed to accept anything at or above $50,000' is a very different note from 'instructed to put an offer of $50,000'.
• Timing: when the offer lapses and when payment is due under the deed.

When the client signs the deed, a short note that you explained its effect, and that the client confirmed they understood, is worth writing even if it feels routine.

Costs: what to record

Costs advice in employment matters has two parts, and both belong in the note. The first is your own fees. In Uniform Law states (NSW, Victoria and WA) the Legal Profession Uniform Law s 174 requires disclosure of the basis of costs and an estimate of total legal costs, and many employee matters run on a conditional costs agreement under s 181. Record the estimate you gave, the costs agreement type, and any update when the estimate changes. Other states have their own legislation with similar disclosure duties. Our costs disclosure file notes guide covers this in detail.

The second is the costs risk in the proceeding. In the Fair Work Commission each party generally bears its own costs (s 611(1)), with exceptions for applications or responses made vexatiously, without reasonable cause, or with no reasonable prospect of success (s 611(2)), and in unfair dismissal matters for unreasonable acts or omissions (s 400A). Court proceedings under the Act follow a similar rule in s 570. Unfair dismissal compensation is also capped at the lesser of 26 weeks' pay and half the high income threshold (s 392(5)). Put together, a client's fees can exceed what they recover. Record that you said so.

Checklist: an employment law attendance note

1. Date, time, mode (phone, video, in person), duration, and who attended.
2. Conflict check result.
3. Who the client is, and for employers, who is instructing and their authority.
4. Date the dismissal took effect, the source, and the 21-day expiry date in full.
5. Eligibility facts: start date, employer headcount, award or agreement coverage, earnings.
6. Summary of facts as the client gave them, including gaps and uncertainty.
7. Claims discussed, the differences explained, and the election made (or the date to decide by).
8. Advice given, in plain terms, including merits and risks.
9. Costs: your estimate and agreement, plus the costs risk in the proceeding.
10. Instructions received, word for word where they involve money or filing.
11. Action items with owners and dates, and the next diary date.

For a general version you can adapt, see how to write a legal attendance note, or run a draft through the law firm file note compliance checklist.

Worked example: first call, employee client

A fictional client and matter, written up so anyone in the firm could pick up the file and act on it.

Notice what the note does. The date is fixed from a sighted document. The deadline is written out twice, as a key date and again in the advice. The election is recorded with a decision date. Costs advice, the compensation cap and the client's real objective are all there, so anyone picking up the file can act on it.

Phone calls, transcripts and recording consent

Many employment firms now want the note produced from a transcript of the call. Be careful with how that transcript is made. Recording a private conversation without consent is restricted by state law: NSW, WA, SA, Tasmania and the ACT generally require all parties to consent, while Victoria, Queensland and the NT allow a party to the conversation to record it. Intercepting a call as it passes over the phone network is separately regulated by the federal Telecommunications (Interception and Access) Act 1979. This is general information, not legal advice. See is it legal to record phone calls in Australia for the detail.

CallNote does not record anything. It works from a transcript you already have, from Teams, Zoom, Dialpad, Aircall or a pasted text file, and turns it into an attendance note in your firm's format in about two minutes. You can paste one of your own past notes and it builds a template that uses your headings and shorthand. You review the draft, then publish it seals it with a checksum so later amendments are appended rather than overwritten. There is no native LEAP, Smokeball or Actionstep integration, so the note goes onto the matter by copy and paste or PDF. More on the setup for firms at CallNote for law firms.

Common questions