Do you need to respond to a show cause letter?

Show Cause Letter Reply

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.”

Show cause letters create uncertainty. They can often cause people stress and concern about what they should do.

Taking the time to understand your options and how to respond can be a good first step. However, as with any legal issue, there is no substitute for getting professional legal advice as early as possible. Without getting informed or getting advice, people can sell themselves short by not understanding all that can be done.

How do you respond to a show cause letter?

If you need to respond to a show cause letter, there are a number of steps that can contribute to an effective reply:

1. Identify applicable laws and policies
2. Gather relevant and supporting evidence
3. Decide what is challenged or conceded
4. Consider your options before responding
5. Get advice from a lawyer
6. Respond purposefully

People should have realistic expectations of how much work it takes to respond purposefully and properly to a show cause letter. It begins with having an in-depth understanding of three issues:

1. The legal framework
2. The options for responding
3. How to properly respond

These three issues are outlined below.

Before going further, it is important to acknowledge that every legal issue is unique. The information provided here cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about how to respond to a show cause letter issued by an employer.

The legal framework for show cause letters

The legal framework for show cause letters relates to understanding the ground rules for show cause letters. It is best considered through a series of five questions:

1. Why are employees 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?

Behind these questions lies the building blocks for understanding the options available to people who receive a show cause letter and how to respond to it effectively.

Why are employees asked to ‘show cause’?

So, why are employees asked to ‘show cause’?

Fundamentally, it is about procedural fairness. A show cause letter is about an employee being given an opportunity to respond to proposed disciplinary action. It is particularly important when termination of employment is being contemplated by an employer.

In Australia, if an employer fails to give an employee a chance to respond to proposed disciplinary action, their decision may be reversed, and compensation ordered.

The Fair Work Act 2009 (Cth) covers most employees in Australia. Under section 387(c) of the Fair Work Act, failing to give an employee an opportunity to respond may see a dismissal labelled harsh, unjust, or unreasonable. The law states:

387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) …

(b) …

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and …

The Small Business Fair Dismissal Code also refers to giving employees an opportunity to respond to the reason or reasons for dismissal before the employee is dismissed.

Reference to ‘capacity or conduct’ refers to a range of potential issues, such as:

• Underperformance
• Workplace bullying
• Sexual harassment
• Discrimination
• Code of conduct breaches
• Misuse of workplace assets
• Confidentiality breaches

The idea that employers should give employees an opportunity to respond to proposed disciplinary action is well-established in Australia. It explains why it is common for employers to issue a show cause notice before making disciplinary decisions, particularly in relation to termination of employment.

What should a show cause letter contain?

The next question is what should a show cause letter contain?

Remembering that a show cause letter is about procedural fairness, it stands to reason that if it is deficient, the employee may suffer some unfairness.

So to understand what a show cause letter should contain, it will help to return to section 387 of the Fair Work Act:

387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and …

It can be seen that the opportunity to respond contemplates the employee being informed of the reason (a valid reason) why their employment may be terminated.

Generally, a show cause letter issued by an employer should contain:

• the potential disciplinary action (such as termination) that may result if the employee does not ‘show cause’;
• adequate particulars of the alleged underperformance, misconduct, or other issue giving rise to the potential disciplinary action. This may necessitate identifying the dates, times, places, and people relevant to the allegation;
• 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 is often a source of contention whether an employee should be provided with witness statements or the identities of witnesses, either during a workplace investigation or when a show cause letter is issued. What will be procedurally fair will depend on all the circumstances, including the law that applies, any industrial instruments, as well as internal policies and procedures.

Who can issue show cause letters?

The question of who can issue show cause letters may seem unimportant. It may not be a real question to consider in most cases. In some circumstances, however, it does matter.

In the workplace context, an employee generally receives the show cause letter from their employer or someone ostensibly acting on behalf of their employer. Whether it be a manager or representative of human resources or people and culture division, depending on the internal management structures, there are numerous people who may validly issue a show cause notice within a business or organisation.

In any business or organisation, procedures are put in place for different employees to perform different roles. However, disciplinary proceedings may be taken in a way that gives rise a question as to whether they have been validly commenced or continued.

For example, in Zink v Townsville Hospital and Health Service [2019] QIRC 181, the Queensland Industrial Relations Commission ordered a show cause notice to be withdrawn on the basis it had been improperly issued. The Townsville Hospital and Health Service in that case conceded that the delegation for the person who issued the show cause letter ought to be withdrawn and a new delegate to oversee the disciplinary process appointed.

Another example is the case of Blows v Townsville City Council [2016] QIRC 066. That case involved consideration of whether the termination of employment following a show cause letter was invalid based on improper delegation of the Chief Executive Officer’s powers. In that case, the show cause letter issued to the employee was found to be deficient and his subsequent dismissal unfair, resulting in his reinstatement.

These cases highlight that it can be important, sometimes, to reflect on the question of ‘who can issue show cause notices’ when dealing with issues of this kind.

When are show cause letters issued?

Turning now to when a show cause letter may be issued, it is important to note that show cause letters may be issued at different stages:

• For example, it may be after an allegation has been raised but before it has been investigated. In that situation, the employer is usually flagging the issue and giving the respondent an opportunity to respond to the allegation, before any decision about it is made. In such cases, the respondent may be asked at the same time address the potential disciplinary consequences if it is accepted. This form of show cause letter is more typical of the opportunity to respond given to employees in small businesses.
• Another point may be after an allegation has been investigated but before factual findings are made. In such situations, the respondent may be asked to show cause why particular factual findings ought not be made. Following that response, a second show cause letter may be issued relating to the proposed disciplinary consequences, such as dismissal. This two-stage show cause process is common in the public sector.
• Yet another point may be after an allegation has been investigated and factual findings made. The respondent may be asked to show cause why a disciplinary consequence should not follow the findings of the workplace investigation.

Quite obviously, how a reply to a show cause letter is crafted will depend on the point at which it is received.

No matter the stage at which a show cause letter is issued, it should always be issued to an employee prior to a disciplinary decision being made by an employer. If a decision has already been made to discipline or dismiss the employee, then there is no real opportunity afforded to put their case forward. For employees covered by the Fair Work Act, this goes back to what is meant by an ‘opportunity to respond’ in section 387.

An example of an employer not truly giving an opportunity to respond may be seen in the case of Ryan v Logan & Co Pty Ltd, [2011] FWA 161. In that case, it was found the employer dismissed the employee by reading out a prepared termination letter in the meeting where the employee was supposedly being given an opportunity to respond to issues of poor performance and misconduct. The dismissal in that case was determined to be harsh on the basis of the meeting outcome being predetermined.

In some cases, show cause letters are issued at a point when it is difficult for an employee to respond within the timeframe given. It could be for reasons of ill-health, inability to access advice in time, or for some other reason. In circumstances where an employee finds themselves unable to respond in the time afforded by the employer, it is sometimes possible to get an extension to allow for sufficient time to respond. In this regard, employers need to be mindful of the criteria for considering unfairness in section 387(c) of the Fair Work Act. Having adequate time to practically respond forms part of the ‘opportunity to respond’.

How are show cause responses used?

For an employee, often the aim of a show cause letter response is to convince an employer not to take certain action against them. The two main purposes of an ‘opportunity to respond’ was summarised in the case of Dover-Ray v Real Insurance Pty Ltd (2010) 204 IR 399 at paragraph [85]:

“In cases where an employee’s conduct is involved, this opportunity serves two purposes. Firstly, it gives the employee the opportunity to demonstrate that the allegations have no foundation. Secondly, it gives the employee the opportunity to persuade the employer that, while the allegations are of substance, there are factors that should persuade the employer not to terminate the employment. Those factors may be extenuating personal circumstances or they may involve undertakings about future conduct.”

Practically, this can mean that an employer may have an obligation to investigate issues raised by the employee as part of their response to the show cause letter.

An employee who is dissatisfied with the decision of an employer following their response to a show cause letter may seek to use the response in any claim they bring, such as an unfair dismissal claim, or general protections claim. This can be a double-edged sword. While a well-argued response may assist someone in advancing their claim, the opposite may be true where a response failed to raise certain arguments or important evidence.

It is critical to understand that responses to a show cause letter may also be used in a number of other ways. For instance, it may be disclosed or disclosable to professional regulatory bodies and law enforcement agencies, or be relevant to other legal proceedings. This is just one more reason why it is prudent for people facing allegations to get legal advice when confronted with a workplace investigation or show cause letter.

In that regard, the operation of the privilege against self-incrimination should be considered, which is particularly relevant if a person is facing an allegation that may amount to a criminal offence. It is a principle that has limits and may be curtailed by certain laws.

The privilege against self-incrimination is an important legal principle. Privilege against self-incrimination means that you cannot be compelled to answer questions that may show you have committed a crime if the answers that may be given may place you in real and appreciable danger of conviction.

The protection of the privilege against self-incrimination is more complicated when applied to workplace investigations and disciplinary processes than it is in purely criminal investigations. The privilege against self-incrimination may apply in the employment sphere if there is a real and appreciable danger that the employee would incriminate themselves by answering particular questions, as was confirmed in the case of Grant v BHP Coal Pty Ltd [2017] 247 FCR 295.

Show cause notice response options

There are many different approaches a person may take when required to reply to a show cause notice, 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

In some cases, there may be multiple strands to a response with each having a distinct purpose but combining to ultimately work together. For example, while challenging the process and allegations, a lawyer may also be engaging in ‘without prejudice’ negotiations for their client in an attempt to settle the issue without findings being made.

Obtaining advice and guidance

It is very common for employees facing a disciplinary process to be directed to keep it confidential, particularly with respect to work colleagues. While there can be legitimate reasons for such directions, it can leave people feeling isolated and disempowered.

Being cut off from sources of support and guidance can give an air of inevitability to the outcome. The reality is it is not over, even though the options can be hard to see due to the situation being unfamiliar and stressful. The role of union representatives and lawyers in this regard can be crucial.

It can be surprising how often employers (even with the benefit of advisers) 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. Obtaining advice and guidance can allow people to better understand their options and how to tip the scales back in their favour.

In seeking advice from a lawyer about a show cause letter, there is scope for legal fees to be a tax deduction, something that is usually just an afterthought in context. In the case of 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 as a tax deduction.

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

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. This may be from a particular law, industrial instrument, employment contract, or internal policies and procedures. If the employer breaches one of these in issuing a show cause letter, there can sometimes be a good reason to argue that procedural fairness has not been afforded and that any adverse decision will be open to challenge. 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, for example:

• Failure by the employer to follow applicable policies and procedures
• Vague allegations without adequate particulars
• Refusal to allow a support person to attend a disciplinary meeting
• Failure to allow adequate time and resources to prepare a response

As was stated in Frijters v The University of Queensland [2016] FWC 2746 at paragraph [369]:

“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.”

It is important to remember that the standard is a fair process, not a perfect one.

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 the employer substantiates an allegation, it should be because the employer is satisfied that the allegation is proved, having regard to all the relevant information. While an employer may not be expected to act with the expertise of a court, commission, or tribunal, concepts applied by those bodies will be relevant if there is a challenge to a disciplinary decision.

It may be found that the allegation is proved (substantiated) or not proved (unsubstantiated). In some circumstances, an allegation may be partly proved, in which case it is important to clarify what has been accepted or rejected, given it may affect the appropriate disciplinary decision to be made.

In some cases, a comprehensive workplace investigation may have been undertaken prior to a show cause letter being issued. When there has been no real investigation into the facts behind the allegations, an employee may need to provide an explanation for the conduct or capacity issue being raised. In some cases, employers may simply be unaware of the full context in which an issue has emerged, or that there are additional facts that undermine 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 minds, or to prevent other evidence from being lost or destroyed.

Initiating ‘without prejudice’ negotiations

When faced with an unjust situation, it is understandable why you may wish to be vindicated. 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.

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 sensitively and with the benefit of legal guidance.

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 receive 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.

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, 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. However, raising issues with an employer can give rise to other legal issues, so it is prudent to get legal advice about any potential complications that may arise from a response to a show cause letter.

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.

Responding to show cause letters

The primary objective of a response to a show cause letter is to persuade. More specifically, to persuade the employer to a particular outcome. The objective may be multi-layered or shift over time, but it will always be there.

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 will likely cut it.

So, while responses ought to be bespoke and context-driven, it is possible to identify common threads among effective responses. In order to understand these commonalities, it assists to consider the following 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 response

Templates for show cause responses

First, to the issue of templates for show cause responses.

Sometimes generic advice suggests things like “never apologise” or to keep a response “succinct”. In some cases, it could be the right approach. In others, it may be totally counterproductive. That is why instead of trying to copy some generic template, crafting a response with persuasion front of mind is likely to be more useful.

Despite expressing some caution with respect to generic templates, it is possible to outline things that probably ought to be done most of the time and things that are probably best avoided most of the time.

Turning first to the things that people generally ought to seek to do in providing a response to a show cause letter:

Generally* Do

• Identify the issues in dispute, either relating to factual allegations or issues concerning procedural fairness.
• Outlining the rules, policies, and procedures that ought to be applied may also assist if the employer has failed to do so, or if there is some concern about compliance with those matters. If there is no issue taken with the process adopted, it may be unnecessary to address.
• Articulating why, based on the relevant issues, particular findings or decisions can or cannot be justified is also likely to be helpful. What this boils down to is making assessments of the credibility and reliability of the evidence available to support any arguments that are advanced.
• Setting out the conclusions that follow from the arguments advanced – and what action should be taken as a result, helps to tie together the points being made. For example, the conclusion may be that no action should be taken. Or it could be that disciplinary action falling short of dismissal is warranted. Whatever the conclusion you are seeking the decision-maker to reach, it is best if it is mapped out in a logical way.

Turning now to issues that are generally best avoided.

Generally* Avoid

• Addressing issues that are unconnected or irrelevant to the issues can make a response appear unhelpful, petty, or vindictive. Such responses can be quite damaging to the employment relationship and may end up bolstering the grounds an employer has to dismiss an employee. 
• Addressing only the ‘good’ points and avoiding the ‘bad’ points, or ‘cherry picking’ evidence, can damage credibility and may frustrate the decision maker. What makes a response compelling is when it sits comfortably with all the relevant evidence. Obviously, show cause letters that contain allegations or evidence that relies on ‘cherry picking’ or taking things out of context are exposed to the same flaws.
• Inconsistent responses and explanations can damage credibility and reliability. If a person says one thing at one time and a different thing at another time about the same issue, it can be difficult to place faith in their credibility and reliability.
• Threatening, offensive, or abusive responses are likely to be counterproductive at least and possibly a breach of criminal law at worst. While people facing stressful situations can sometimes behave uncharacteristically, one of the worst mistakes that can be made is when people do things that compound the problems they are facing.

In summary, while it is possible to identify common threads, ultimately, there is no substitute for proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies.

Why the message must clear

Making your message clear is critical. It is best if the message is clear from the outset.

A convoluted and confused message is indicative of a lack of confidence in the response being provided. It may be a product of there being no easy answer. However, anyone who receives that kind of response can see the obfuscation a mile away and knows what it signals. 

There is no viable alternative to making the message clear.

An example of the opening of a response letter may look something like this if written by a lawyer – provided the circumstances called for such statements to be expressed:

I act for your employee, [NAME].

On behalf of my client, the following outlines [his/her] response to the show cause letter issued to [him/her] on [DATE].

My client denies the misconduct alleged against him/her.

For the reasons set out below, it would be wrong to terminate my client’s employment. In all the circumstances, it would be appropriate to take no further action.

An opening of this kind makes clear the issue that will be addressed in the remainder of the response. It makes clear there is a dispute about the need for any disciplinary action. The rest of the response should be devoted to persuading the reader accordingly.

There are many ways to check the clarity of a message, but one is to consider every sentence and ask yourself ‘why is that being said?’. It acts as a check on relevance. If the answer is not apparent from the content itself or does not logically connect to the conclusion, you are likely muddying the message.

Addressing allegations and issues

A common error people make is failing to properly acknowledge that a mistake was made (if it was made). Sometimes, there is no way around it – a mistake occurred. In other cases, when misconduct or other disciplinary issues are raised, they are properly and fully disputed.

An example of a response that acknowledged a mistake and lapse of judgement can be seen in the case of Macklin v BHP Coal Pty Ltd [2018] FWC 7429. Paragraph [62] of the decision set out part of the show cause response letter provided by the employee in that case. It began:

“At the outset I would like to apologise for my actions.”

In addressing the allegation of wrongdoing, it stated:

“Doing so was a mistake and a lapse in judgement on my part. I note, as previously explained, that at the time I misunderstood the relevant requirements. I acknowledge the mistake that I made and commit to ensuring that it does not happen again…”

Now in that case, while the employer terminated the employment of the employee, he was successful in being reinstated before the Fair Work Commission and received back pay of approximately $45,000 less taxation plus superannuation.

The reason it may be important to be clear about what is in dispute is that it can mark out the boundaries of how any disciplinary decision will be made. If you dispute everything, everything is an issue. Narrowing the points in dispute can be a source of strength. One important matter employees often overlook in responding is raising wider issues that may have contributed to, or are at least relevant to, what is raised in the show cause letter.

In addressing whether issues are accepted or rejected, it may be crucial to detail the information, witnesses or evidence that may tend to support the claims being made. Moreover, it can be important to outline any procedural flaws or issues of non-compliance by the employer.

What makes for a compelling response

A compelling response to a show cause letter must be both credible and reliable.

Decisions regarding factual disputes should follow a fair assessment of the credibility and reliability of the relevant evidence. It means that if witnesses are not interviewed, evidence is not provided, information is not gathered, a distorted view may prevail. In the case of an employee being asked to show cause, reliance on information that is not credible or reliable may see a job lost unnecessarily.

The task of convincing the decisionmaker of a particular view of the facts will depend on a range of factors. Who has the burden of proof? What is the standard of proof? Why should a piece of evidence be accepted or rejected? The answers to these questions may mean calling into question the credibility and reliability of evidence raised by the employer, as well as emphasising the reasons why other evidence should be accepted.

Employees will often have a range of factors on their side, which can be important to highlight. This may be a lengthy employment record, awards for performance, as well as an absence of prior disciplinary history. It can be crucial to highlight these issues when an event has arisen that is out of character or perhaps reflective of a momentary lapse of judgement or a misunderstanding.

Ways to conclude show cause responses

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 the ultimate position is that no further action should be taken, then that should be made clear. Alternatively, an employee may accept that some disciplinary action is warranted, but advocate for a sanction such as a formal warning as being appropriate, as against, say, dismissal.

Identifying the appropriate action to be taken helps draw a line in the sand. It can help the employer to know if the dispute is about whether disciplinary action of any kind is warranted, or if it is limited to the type of disciplinary action to be taken. Identifying what should follow if your response is accepted in many cases can narrow the issues in dispute.

Have you received a show cause letter?

It is not uncommon to encounter people who have received a show cause letter and see they are filled with uncertainty, doubt, and stress. It is normal, particularly for people who feel they are being wronged by their employer.

It is also not uncommon to see people making mistakes about the scope of the task. People can view the correctness of their position as self-evident. It can stop them from reflecting on their options in responding. It can see people underestimating just how much work may be involved in formulating a response that may produce a just outcome.

People should have realistic expectations about how much work it takes to produce a compelling response to a show cause letter. There also needs to be some realistic expectations that even with a perfectly rational response, an unfair decision may be made. It may be disappointing, even devastating.

While some people may seek to engage a lawyer at that point – “if the worst happens” – it often becomes harder, not easier, to change the outcome the farther things are along the road. For that reason, people facing workplace challenges are always best advised to get legal advice as early as possible. Getting informed about issues of concern can make sense, but it is no substitute for tailored legal advice.

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About Author: Andrew Anderson

Andrew Anderson has significant experience assisting people seeking help in responding to a show cause notice. He assists executives and employees across Australia by:

• drafting response letters
• providing advice and guidance
• negotiating settlement agreements with employers
• litigating disputes in courts and tribunals