Have you received a show cause letter? You can influence what happens next.

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Show cause letter response options

If you have received a show cause letter, you have options

A show cause letter often causes people real stress and concern about what they should do. It often relates to the uncertainty about what comes next.

A show cause response letter is supposed to give you an opportunity to argue against disciplinary action being taken against you. It is an important opportunity because if you are dismissed, the reality of unfair dismissal claims is that people are rarely reinstated to their old job. Outcomes from conciliations in the Fair Work Commission show how hard it is for people to be reinstated after being dismissed:

Whether by agreement through conciliation or following a decision after a contested process, experience shows that it is relatively rare for people to be reinstated after being dismissed from the workplace.

There are many different approaches a person may take when required to respond to a show cause letter, such as:

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

Getting informed about your options is a good first step to a show cause notice reply. It should be noted that in some cases, there may be multiple strands to a response with each having a distinct purpose but combining to ultimately work together.

1. Obtaining advice and guidance

When an employee is given a show cause letter they are often also instructed to keep the process confidential. The isolation people can feel can leave people uncertain of the way forward. In such moments, getting advice and guidance from an expert is prudent, particularly when the stakes are high.

Experience shows that executives and employees sometimes delay getting legal advice (if at all). It can be due to fears or concerns that don’t actually reflect their own interests. Such concerns can impact their decision to seek expert assistance from an employment lawyer. It is an important issue because it is surprising how often employers fail to:

• afford procedural fairness;
• comply with their own policies and procedures; or
• consider relevant information.

By the time a show cause letter is issued, it can feel like the easy option is for employers to follow through with their proposed disciplinary decision. Yet advice and guidance can help you to better understand your options. Moreover, it can help you to tip the scales back in your favour.

In seeking advice from a lawyer, it is possible for legal fees to be a tax deduction. For example, in the case of Federal Commissioner of Taxation v Rowe (1995) 31 ATR 392, the Court considered whether legal fees associated with responding to a show cause letter was a legitimate deduction. The Court decided that the legal costs involved in defending work performance to retain employment was a permissible tax deduction.

People should always consult their tax advisors about claims of this nature. However, it is an example why the barriers to getting advice are not always as large as they may first appear. The benefits of getting help from a lawyer or union representative can be greatly underestimated by people facing disciplinary processes.

2. Challenging the process

Challenging the process refers to raising issues that go to matters of procedural fairness.

A workplace may be subject to rules about how a complaint or grievance is to be managed. For example, it may be from particular laws, industrial instruments, employment contracts, or internal policies and procedures. An employer who fails to follow these in issuing a show cause letter may open up a basis to challenge the process. There can sometimes be sound reason to argue that procedural fairness has not been afforded in such circumstances. Flawed processes may be subject to injunctions to preserve the status quo, withdrawn, or set aside.

Experience shows that it is important not to overlook the compliance of the employer with their own policies and procedures. Failing to make a timely objection to issues of this kind can make it harder to raise later.

There are many types of procedural flaws that may be open to challenge. It will assist in outlining four examples. In viewing these examples, it is important to remember that the standard is a fair process, not a perfect one.

Failure by an employer to follow their policies and procedures

One is the failure by an employer to follow applicable policies and procedures relating to disciplinary processes. In Frijters v The University of Queensland [2016] FWC 2746, multiple failures to follow applicable procedures were proved. It was stated at paragraph [369] of that judgment:

“Procedural deficiencies can render an outcome a nonsense or unfair or unreliable such that it should no longer stand. Were it not otherwise then the ends would justify the means and deficiencies in process would be given no weight in deciding if the result was sustainable under scrutiny.”

Vague allegations without adequate particulars

Another type of procedural flaw relates to vague allegations. That is, allegations that do not adequately identify the relevant times, places, and circumstances surrounding what is alleged. For example, consider the following allegation in Eisenmenger v Lutheran Church of Australia, Queensland District [2005] QIRC 32. The allegation read:

“Inappropriate aggressive outbursts in front of students. This claim relates to students concerns that increasingly you have been having outbursts in the classroom in front of the students causing the students to be fearful of your anger towards them.”

That allegation was said to contain “vague, generalised, and subjective assertions” and therefore was not reasonable.

Refusal to allow a support person

Refusal to allow a support person to attend a disciplinary meeting, including a meeting intended to allow a person to ‘show cause’, is another form of procedural flaw. Section 387(d) of the Fair Work Act requires the Fair Work Commission to consider “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”. In the case of Dewson v Boom Logistics [2012] FWA 9027 (Cambridge C, 24 October 2012), the employer refused to allow the employee their choice of union official to act as their support person. This refusal was found to be unreasonable.

Failure to allow adequate time to respond

Unfairness by the employer by not allowing adequate time or access to necessary resources to prepare the response to the allegations is another type of procedural flaw. An example of this kind of deficiency is seen in the case of Bridge v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits [2021] FWC 3153 (Harper-Greenwell C, 30 August 2021). It involved a process where the employee was not provided adequate time to respond, and the process was generally described as “nothing less than procedurally disastrous”.

3. Challenging the allegations

To challenge allegations in the workplace, it is helpful to begin with first principles.

A challenge to an allegation is often the result of inconsistencies in the accounts of different people. Generally, it is inappropriate for an allegation to be substantiated simply because the person accused could not disprove it. If it is substantiated, it should be because the allegation is proven. An employer is not expected to act with the expertise of a court, commission, or tribunal. However, concepts applied by those bodies will be relevant if there is a challenge to a disciplinary decision.

In some cases, a comprehensive workplace investigation may have been undertaken prior to a show cause letter being issued. However, when there has been no real investigation, issues may need to be addressed in that context. In some cases, employers may simply be unaware of the full context. Crucially, an employer may be unaware of evidence that undermines the allegation.

Challenging allegations requires a focus on two issues: credibility and reliability. In essence, credibility concerns honesty whereas reliability concerns accuracy. An allegation may be honestly raised but it may depend on a person who is mistaken or otherwise wrong.

One of the important tasks in challenging an allegation is to identify, as early as possible, the relevant information or evidence that may show an allegation to lack credibility or be otherwise unreliable. The reason it is important to do so as early as possible is to ensure relevant witnesses are interviewed while matters are fresh in their mind, or to prevent other
evidence being lost or destroyed.

4. Initiating ‘without prejudice’ negotiations

For an employee facing a disciplinary process, often the aim of ‘without prejudice’ negotiations is to resolve all disputes quickly and quietly. It can see an employee reach a commercial settlement with their employer, affording the employee the resources, time, and space to pursue other opportunities.

The benefit of negotiated resolutions

When faced with an unjust situation, it is understandable why you may wish to be vindicated. We all like to be right. However, contested disciplinary processes create real risks for both employers and employees. Sometimes after working through both the risks and rewards of different options, reaching a negotiated settlement to a dispute can start to look attractive to both sides – it’s the bird in the hand instead of the two in the bush.

Initiating confidential ‘without prejudice’ negotiations with an employer is something generally undertaken by a lawyer on behalf of an employee. Power imbalances may otherwise impede discussions between the employer and employee, particularly at a time when an employee is facing a disciplinary process that may result in their dismissal.

The purpose of ‘without prejudice’ negotiations between employers and employees is to resolve an active or potential dispute as quickly as possible. When confidential negotiations end in a commercial agreement, real benefits can be achieved for both employers and employees, particularly in terms of managing reputational and financial risks.

Confidential settlements are not always possible

While confidential negotiations and settlements are not always possible or appropriate, their use as a complementary strategy in trying to resolve disputes can see quick resolutions to situations that may otherwise take months to resolve through litigation. Handled incorrectly, allegations of contractual breaches, or worse, can be made.

Seeking to reach a mutual agreement or negotiated settlement generally requires a clear understanding of your legal rights, obligations and options. Agreements of this kind often involve certain guarantees, indemnities or waivers, which can have real consequences when breached. Again, this highlights why it is prudent for ‘without prejudice’ negotiations to be handled with care and with the benefit of legal advice.

5. Arguing for lesser consequences

So, what do you do when you want to keep your job but accept you made a mistake or need to make some improvements to your performance? Receiving a show cause notice in those circumstances may mean trying to argue for a lesser consequence than the termination of employment.

In some instances, an employee may simply accept their conduct fell below the appropriate standard or that their performance needs to improve. When there is no dispute that the employer has a valid concern about an issue, it can make sense to focus on mitigating the consequences.

The fine line between mitigation and blame-shifting

Outlining why a particular disciplinary outcome would be appropriate requires considerable care. There can be a fine line between seeking to mitigate culpability and blame-shifting. In the latter case, an employer may respond that such explanations wrongly play down the seriousness of the conduct, or otherwise demonstrate a lack of insight.

What may be raised to seek to explain (though not necessarily seek to excuse) why something occurred generally falls into two categories. First, issues internal to the workplace. Second, issues external to the workplace.

Internal workplace issues that have caused or contributed to the conduct or capacity issue may relate to things such as gaps in workplace training, or from unreasonable working conditions, bullying, discrimination, or harassment.

Issues external to the workplace may assist to put things in context, particularly where it can be shown that a person has acted out of character. This may include mental health issues, personal issues that have arisen, or other issues that place events into a proper context.

Other possible factors relevant to decisions

In seeking to dissuade an employer from dismissing an employee, other factors may be relevant. An example of this may be an exemplary work history. Long-standing employees without a workplace disciplinary history often are on a much stronger footing in this regard when compared to new employees.

Any insight, training or programs that may be, or have been, undertaken to address any concerns may also be relevant as to whether the employer can have ongoing trust and confidence in the employee.

Arguing for a lesser penalty than dismissal is not easy. Mitigating the consequences of misconduct is not always possible. Asking for another opportunity to improve performance will not always be granted. For responses of this nature to a show cause letter, maintaining a focus on why a decision to terminate employment would be harsh, unjust, or unreasonable
may give an employer just enough pause for thought.

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.

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.

Replying to a show cause notice

A show cause notice reply presents both risks and opportunities. As the respondent, often the main risk you are facing is potential disciplinary action that has reputational, professional, and financial consequences. However, your response also presents you with an opportunity to ‘clear your name’ and move forward.

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

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. If you receive a show cause letter, it is critical to seize the opportunity to put forward a compelling and convincing response to it. Anderson Legal assists executives and employees who face possible dismissal and wish to put their best foot forward.

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. As such, 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