Replying to a show cause notice?

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How you can respond to a show cause notice

A show cause notice is your opportunity to persuade

Have you received a show cause notice (also called a show cause letter)?

It probably states something to the following effect:

“I am providing you with an opportunity to show cause why you should not be dismissed.”

A letter inviting an employee to ‘show cause’ is important for procedural fairness. A show cause notice allows an employee an opportunity to respond to proposed disciplinary action. It is particularly important when an employer is considering termination of employment.

In Australia, if an employer fails to give an employee an opportunity to respond, there can be consequences. It can see decisions reversed, and compensation ordered. A ‘show cause’ notice can help employers meet their legal obligations. Section 387 of the Fair Work Act 2009 (Cth) includes a duty to give employees “an opportunity to respond” before terminating their employment.

If you need to respond to a show cause notice, there are six steps that can help you to do so effectively:

1. Review relevant laws and policies
2. Gather supporting evidence
3. Identify what you accept or reject
4. Consider your rights and options
5. Get advice from a lawyer
6. Respond calmly and purposefully

1. Review relevant laws and policies

If you need to reply to a ‘show cause’ notice, it is important to review the applicable laws and policies. It is through such frameworks that the issues get decided. Law, policies, and procedures can allow you to understand what may be fair or appropriate.

Typically, a show cause notice issued by an employer will contain:

• the potential disciplinary action that may result if the employee does not ‘show cause’;
• adequate particulars of the underperformance, misconduct, or other issue in question. This may require identifying the dates, times, places, and people that are relevant;
• reference to, or disclosure of, information or evidence that is sufficient to allow an opportunity to respond;
• any relevant work history or background (i.e., previous warnings) the employer may take into account; and,
• information about how the employee is to respond, including any rules that may apply to the process.

It can be a source of disagreement whether an employer provides an employee with witness statement or other evidence. Disputes about these issues can arise during a workplace investigation or upon a show cause letter issuing. The resolution of such disputes is not always easy. Procedural fairness depends on all the circumstances, including the relevant laws and policies.

2. Gather supporting evidence

If relevant evidence is not uncovered, an unjust result may prevail.

When given a letter inviting you to ‘show cause’, you may face some hurdles in gathering evidence. For example, you may have been stood down from work. Also, it is common for employers to direct employees to keep disciplinary processes confidential. So, it may not be so simple to speak to your colleagues. As such, gathering the available evidence can seem easier in theory than it is in practice

To gather relevant evidence, it is necessary to know what rights and options you may have to get it. Moreover, it is critical to know what obligations exist for employers to consider it.

Evidence relevant to a response may go beyond simply addressing the allegation. It can also relate to evidence by experts, such as doctors, psychologists, or counsellors. Understanding how evidence may be relevant is not always obvious. The legal issues associated with certain forms of evidence can also be complex.

Employers are not expected to have the skills of police or lawyers in dealing with evidence. That said, if you understand the reasonable expectations they must meet, it can help you frame your response.

3. Identify what you accept or reject

Identifying what you accept or reject sounds simple. It requires methodically working to identify the real issues in dispute.

Narrowing the points in dispute can be a source of strength. Yet, it may also be necessary to raise new issues. Sometimes, there are things that may have contributed to the issues raised by an employer. Such issues may be personal to the employee, or an external factor that needs consideration.

To accept or reject issues, it is crucial to understand what information, witnesses, or evidence exists or is relevant. This ensures an employee can see the basis upon which an employer raises an issue. For instance, it may expose when an employer has acted on incomplete or inaccurate information.

Identifying what is accepted or rejected is an essential step when responding to a show cause notice. Balancing strong challenges with reasonable concessions can be difficult. Decisions of this nature are best made against the applicable legal principles.

4. Consider your rights and options

You may have many choices to make when responding to a ‘show cause’ letter. However, the situation is likely unfamiliar, involves short timeframes, and is often stressful. In such circumstances, people do not always consider their rights and options. 

One option that people often do not consider early enough, if at all, is seeking to resolve a workplace dispute by a negotiated settlement. It prompts this question: ‘Why would an employer negotiate with an employee who has been asked to ‘show cause’? The reasons employers may negotiate are not always obvious. The legal, financial, and reputational risks employers can face are complex. Reducing conflict through negotiation can have benefits for all concerned.

A confidential settlement can allow an employee to resolve their issues quickly and help to protect their reputation. Avoiding lengthy disputes can allow people to move forward faster and more securely.

Considering your rights and options is essential before responding to a ‘show cause’ letter. It can focus attention on what may be the ideal outcome in the situation, and what is actually achievable.

5. Get advice from a lawyer

Getting advice from a lawyer can have a number of benefits. It can help to identify the potential risks and benefits of different options. Moreover, it can help people to respond strategically to their ‘show cause’ letter.

Dismissal from a workplace can have far-reaching consequences. It can impact your reputation, livelihood, and financial security. For this reason, it is prudent for people to get legal advice before settling on how to respond to a ‘show cause’ notice.

Tailoring every response to the specific circumstances of the case is always necessary. There is no ‘one size fits all’ approach to responding to a ‘show cause’ letter. An experienced lawyer can draw on their knowledge of the law and past cases that may have involved similar issues. This bank of knowledge can make a crucial difference to the ultimate outcome.

6. Respond calmly and purposefully

It is necessary to respond calmly and purposefully to any ‘show cause’ letter you receive. This means taking account of the issues at stake and the dangers of any missteps. Are you on a collision course with your employer? Or do you think you can carefully navigate through the troubled waters? A calm and purposeful response will look different to different people.

People can underestimate how much work it takes to ‘show cause’. When something is unfamiliar, having realistic expectations can be difficult. This is particularly so when you feel the situation is unfair or unreasonable, but are unsure what the outcome will be.

Even with a perfectly rational response, an unfair decision may result. It may be disappointing, even devastating. Getting appropriate legal support can make a real difference. Other supports include employee assistance programs (EAP), doctors, and counsellors. With a proper strategy, it is possible to plan for different contingencies, defend your rights, and advance your interests.

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact unfair disciplinary action or dismissal can have on a person. This firm helps to defend executives and employees who face an unfair situation at work and wish to act against it.

Have you received a show cause notice?

Important considerations

What is a show cause letter?

To answer “what is a ‘show cause’ letter?”, you need to consider the legal framework for show cause letters within Australia. Looking at the answers to the following five questions helps to understand the legal framework:

1. Why employees are asked to ‘show cause’?
2. What should a show cause letter contain?
3. Who can issue show cause letters?
4. When are show cause letters issued?
5. How are show cause responses used?

Employers issue show cause letters to give employees an opportunity to respond to potential disciplinary action. It is related to the obligation of employers to afford their employees procedural fairness.

Show cause letter response options

If you have received a show cause letter, it is important to look ahead and consider the question ‘what may happen next’? Understanding what comes after a process started by a show cause letter can give you a clearer idea of your show cause letter response options. This includes:

1. Obtaining advice and guidance
2. Challenging the process
3. Challenging the allegations
4. Initiating ‘without prejudiced’ negotiations
5. Arguing for lesser consequences

Anderson Legal assists executives and employees across Australia who have been issued a show cause notice. This firm provides tailored advice and guidance on how to navigate the situation.

Why you should avoid show cause letter templates

The primary objective of a response to a show cause letter is to persuade. More specifically, to persuade the employer to a particular outcome. This is best achieved by responses that are tailored to the specific circumstances. However, while emphasis may be placed on bespoke responses, it is possible to identify common threads amongst effective responses.

In order to understand why you should avoid using show cause letter response templates, it assists in looking at five issues:

1. Templates for show cause responses
2. Why the message must be clear
3. Addressing allegations and issues
4. What makes for a compelling response
5. Ways to conclude a show cause letter response

There are no shortcuts in how to respond effectively to a show cause letter. It takes proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies. No generic template or response created by artificial intelligence will likely cut it.

Have you been given an ‘opportunity to respond’?

If you have not been given a fair opportunity to respond, it is important to consider your options in dealing with an unfair opportunity to show cause. Understanding your rights and options can direct your decisions in addressing any unfairness.

It is not uncommon for people to have misgivings about the fairness of a disciplinary process they are subject to, yet not raise any issues and simply ‘hope for the best’. It can be driven by the belief that raising a dispute may make matters worse. While such beliefs are understandable, they can backfire. Failing to make a timely objection to something can be taken into account as being the product of disappointment with the process only in the aftermath.

Generally, though not always, the longer a process goes on the harder it is to seek alterations to it. For that reason, anybody who holds concerns about the fairness of a potential disciplinary outcome ought to seek advice from an experienced employment lawyer at an early time.

What happens in a show cause meeting?

A show cause meeting is called by an employer to allow employees an opportunity to respond to potential disciplinary action. Typically, a worker is given some notice of the issue prior to the meeting. Also, employers generally offer employees the opportunity to have a support person.

It is not uncommon for executives and employees to leave a show cause meeting feeling that they may not have done all they could to argue their case. Sometimes, employees may respond in writing instead of, or in addition to, attending a meeting.

If you are facing potential disciplinary action and have been called to a show cause meeting, it is important to understand what it may involve. This firm provides advice and guidance to workers called show cause meetings.

About Author: Andrew Anderson

Andrew Anderson has significant experience assisting people in responding to potential disciplinary action. He assists executives and employees across Australia by:

• providing advice and guidance
• drafting letters and responses
• negotiating settlement agreements
• litigating disputes in courts and tribunals