Do you need to respond to a ‘show cause’ letter?

Show Cause Letter Reply

Understanding your options is critical

Have you received 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.”

In responding to a show cause letter, it may be important to state what action should be taken by the decision-maker. For example, if your position is that no further action should be taken, then that should be made clear. However, knowing what to say and how to argue why your response should be accepted can be difficult.

The uncertainty created by a show cause notice often causes people real stress and concern about what they should do.

Getting informed about your options before deciding how to reply is a good first step. There are a number of ways to learn more about how to respond to a show cause letter:

• Learn more about response options and important considerations (read on)
• Get urgent, initial legal advice from an employment lawyer (learn more)
• Get representation to reply to a show cause notice (details below)

Your reply is an opportunity to persuade your employer or manager why they should not make an unfavourable decision against you. It is a significant opportunity because the reality is that getting reinstated is unlikely. Outcomes from conciliations in the Fair Work Commission show how hard to get reinstated after being dismissed:

Whether through conciliation or following a contested process, experience shows that it is relatively rare to see employees reinstated after being dismissed from the workplace.

As with any legal issue, there is no substitute for getting professional legal advice as early as possible.

Understandably, before hiring a lawyer, many people want to get better informed about the issues they face.

What is the purpose of a show cause letter?

In Australia, employers may issue a show cause letter to ensure procedural fairness in a disciplinary process. Failing to give employees a chance to ‘show cause’ can see decisions overturned and compensation awarded. For that reason, employers issuing show cause letters during disciplinary processes is relatively common.

Employers should issue a show cause letter before making a disciplinary decision. If the employer has already decided to discipline or dismiss the employee, there is no real opportunity to ‘show cause’.

In some cases, employers issue show cause letters when it is difficult for an employee to respond adequately within the timeframe given. It could be because of ill health, inability to access a particular lawyer in time, or another reason. As such, when an employee finds themselves unable to respond in the time afforded by the employer, it is sometimes possible to get an extension to allow sufficient time to respond.

Employers ought to carefully consider responses to their show cause letters. Failure to do so can strengthen claims for compensation or reinstatement.

Response Options

There is no ‘all-purpose’ response to a show cause letter

A person may take many different approaches when replying to a show cause notice. The reasons for this are obvious. Not all allegations are the same, and neither are individual circumstances.

There are numerous issues that may prompt a show cause letter, including conduct that occurs outside of the workplace or ‘work hours’. For example:

• Workplace bullying
• Sexual harassment
• Discrimination
• Underperformance
• Work health and safety breaches
• Code of conduct breaches
• Misuse of workplace assets
• Social media misuse
• Being intoxicated at work
• Fights in the workplace
• Confidentiality breaches
• Corrupt conduct
• Theft of workplace property

The varied ways a show cause letter may arise means there is no ‘one-size-fits-all’ approach to responding.

Understand your options

There may be a number of options open when responding to a show cause letter from an employer. However, because the situation may be unfamiliar, involves short timeframes, and is generally highly stressful, people do not always appreciate their options or weigh them in a considered manner.

Four common options when responding to a show cause letter include:

There are many different approaches a person may take, and there is no one ‘right answer’ given people have personal priorities. For example, in some cases, there may be multiple strands to the response, with each strand having a distinct purpose but combining to operate together.

Often the work of an employment lawyer involves assisting their client to challenge allegations, raise issues about procedural fairness, and sometimes engage in ‘without prejudice’ negotiations to resolve the problem quickly.

Every case is different. So anybody seeking personalised advice about a specific situation should consult a lawyer as soon as possible, as certain options may cease to be available as time passes. Anderson Legal offers a fixed-price, no-obligation initial consultation for people needing to reply to a show cause notice (learn more).

Important Considerations

Get appropriate support

People asked to ‘show cause’ are often instructed by their employers to keep the disciplinary process confidential. It can make the process feel isolating and disempowering.

Isolation and disempowerment can make people feel they are simply subject to the process and that the result will be what it will be. This feeling can undermine a person’s opportunity to put their best foot forward.

An experienced lawyer can help you gain a sense of support and authority.

In assessing the allegations or purported findings in a show cause letter, it can be surprising how often employers and managers (even with the benefit of advisers) fail to afford procedural fairness, comply with their own policies and procedures, or take into account relevant information.

The question is: How seriously such flaws are taken by decision-makers? The answer may depend, to some degree, on the authority of the person raising the issue. For this reason, having the support and authority of a lawyer on your side can be critical.

Dr Robert Cialdini identified ‘the principle of authority’ as one of the six key principles of influence in his book, “Influence: The Psychology of Persuasion”. It describes the tendency for people to agree or comply with people seen as having authority on a subject. Numerous studies have shown the impact of this ‘principle of authority’ on decision-makers. In the Harvard Business Review, he described the essence of the authority principle in this way:

Two thousand years ago, the Roman poet Virgil offered this simple counsel to those seeking to choose correctly: “Believe an expert.” That may or may not be good advice, but as a description of what people actually do, it can’t be beaten.

So, getting a lawyer to assist you may make it easier to have your voice heard. However, the actual value of a lawyer should run deeper.

The persuasiveness of the response is critical

While knowing the law is fundamental for a lawyer, so is their expertise as an advocate.

Advocacy is all about persuasion.

Persuasion leads thought and action. As such, in reply to a show cause letter, persuasiveness is a critical element in any response.

Work can be one of our defining characteristics or at least an essential part of how we perceive ourselves. So if you feel any disciplinary action contemplated against you would be harsh, unjust or unreasonable, it is evident that the persuasiveness of your response is of the utmost importance.

Experienced lawyers can draw on similar issues in past cases and understand whether particular strategies or responses were persuasive. This bank of knowledge can be drawn upon to provide expert guidance for anybody newly facing such a situation.

Anderson Legal provides legal advice to executives and employees needing to respond to a show cause letter. Contact this firm for a confidential, fixed-price, and no-obligation initial consultation.

Fixed-price initial consultation

A fixed-price initial consultation is $495 incl. GST for up to one hour, which may be tax deductible (consult your tax advisor).

If you are required to respond to a show cause notice at work, book an appointment for an initial consultation with Anderson Legal. You will receive clear and timely advice that allows you to understand the relevant legal issues and make informed choices about your options.

The time is devoted to ensuring an understanding of the particular issues to allow advice to be given based on the information you provide, which may include:

• Legal framework for show cause letters
  • What is a show cause letter?
  • Why are employees asked to ‘show cause’?
  • Who can issue show cause letters?
  • When are show cause letters issued?
  • How are show cause responses used?
• Show cause notice response options
  • Obtaining advice and guidance
  • Challenging the process
  • Challenging the allegations
  • Initiating ‘without prejudice’ negotiations
  • Responding to proposed disciplinary action
• How to reply to show cause notices
  • Template for show cause responses
  • Why the message must be clear
  • How to address allegations and issues
  • Elements of a compelling response
  • Ways to conclude show cause responses

An initial consultation with Anderson Legal is obligation-free, meaning there is no expectation or commitment to additional legal work or costs. As such, following the initial consultation, if you want to engage this firm for further advice or legal representation, you will receive an estimate of costs as far as possible.

Initial consultations are by appointment only, with in-person, video, and phone options possible.

Who this firm assists

Anderson Legal exists to resolve workplace problems. It provides legal services to:

• small business operators
• executives in medium to large enterprises
• employees in medium to large enterprises
• public service employees

The potential impact of misconduct allegations on reputations, relationships, and livelihoods makes it critical to have an employment lawyer who is equal to the task. So, if you need an employment lawyer, there are many reasons why Anderson Legal should be your preferred choice:

Read below how this firm can assist you, what it costs to get advice, and when to contact this firm.

How this firm can assist

With respect to people facing disciplinary action at work, this firm assists its clients in navigating issues of all kinds, including:

• advising on whether certain conduct may be classified as ‘workplace misconduct’
• assisting with workplace investigations related to disciplinary processes
• drafting correspondence on behalf of clients, including replies to show cause letters
• negotiating resolutions with respect to workplace disciplinary processes
• detailing the internal complaint processes and resolution possibilities
• outlining the potential risks faced by a person facing allegations at work, such as:
  • criminal law referrals
  • professional conduct referrals
  • anti-corruption agency referrals
  • civil litigation claims
• representing clients litigating disputed disciplinary processes in courts and tribunals

Note: Anderson Legal does not provide advice relating to personal injury laws or workers’ compensation laws.

What it costs to get advice

Fixed price initial consultation

A fixed-price initial consultation is $495 incl. GST for up to one hour, which may be tax deductible (consult your tax advisor).

If you are required to respond to a show cause notice at work, book an appointment for an initial consultation with Anderson Legal. You will receive clear and timely advice that allows you to understand the relevant legal issues and make informed choices about your options.

The time is devoted to ensuring an understanding of the particular issues to allow advice to be given based on the information you provide, which may include:

• Legal framework for show cause letters
  • What is a show cause letter?
  • Why are employees asked to ‘show cause’?
  • Who can issue show cause letters?
  • When are show cause letters issued?
  • How are show cause responses used?
• Show cause notice response options
  • Obtaining advice and guidance
  • Challenging the process
  • Challenging the allegations
  • Initiating ‘without prejudice’ negotiations
  • Responding to proposed disciplinary action
• How to reply to show cause notices
  • Template for show cause responses
  • Why the message must be clear
  • How to address allegations and issues
  • Elements of a compelling response
  • Ways to conclude show cause responses

An initial consultation with Anderson Legal is obligation-free, meaning there is no expectation or commitment to additional legal work or costs. As such, following the initial consultation, if you want to engage this firm for further advice or legal representation, you will receive an estimate of costs as far as possible.

Initial consultations are by appointment only, with in-person, video, and phone options possible.

Representation for show cause letter responses

Anderson Legal is transparent about how it charges legal fees.

This firm generally charges on a capped-fee, fixed-fee, or time-costed basis.

Please note that Anderson Legal does not undertake legal work on a ‘no-win, no-fee’ basis.

The potential for legal fees to be a tax deduction is only sometimes considered by executives and employees when first considering whether to get advice from a lawyer. In Federal Commissioner of Taxation v Rowe (1995) 31 ATR 392, the Court found the employee, in that case, could validly claim a tax deduction for legal expenses relating to showing cause why his employer should not dismiss him. He needed to respond to several complaints made against him. The Court decided that the legal costs involved in defending his work performance to retain his employment were permissible tax deductions.

In providing representation for people wanting to reply effectively to a show cause letter issued to them, Anderson Legal puts in place a formal costs agreement with all clients. Also provided is a disclosure statement outlining basic rights and quotes or estimates for applicable legal fees.

When to contact this firm

Employment law issues have strict timeframes. For this reason, it is prudent to seek advice as soon as possible for employment law issues.

Responding to show cause letters can involve many legal complexities and there are potential consequences for reputations, relationships, and livelihoods. For this reason, it can be critical for anyone facing such issues to get urgent legal advice.

If you want legal advice, you should call Anderson Legal to set up an appointment for a fixed-price initial consultation: