Show Cause Notices for Discrimination
Why employers ask employees to “show cause”
In Australia, issuing show cause letters is one of the steps an employer can take to afford an employee procedural fairness in a disciplinary process. Failing to give employees a chance to ‘show cause’ why disciplinary action is unjustified can see decisions overturned or compensation awarded.
Under the Fair Work Act 2009 (Cth), failing to give an employee a chance to respond to a workplace issue may be taken into account by the Fair Work Commission (FWC) in determining if a dismissal was 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:
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and…
For employers, there can be real consequences for failing to provide procedural fairness to employees. For example, outcomes from thousands of conciliations in the Fair Work Commission show significant monetary payments are common following disputed dismissal decisions:
As can be seen, the number of unfair dismissal claims made against employers, and the monetary payments reflected in conciliation outcomes, highlight the importance of fair disciplinary processes and properly drafted show cause letters.
Issuing show cause letters
A show cause letter is meant to provide an employee with an opportunity to explain (show cause) why they should not face disciplinary action. For that reason, it should at least contain sufficient information to allow a proper response, such as:
- the potential disciplinary action (ie, dismissal) that may result if the employee does not ‘show cause’;
- adequate details of the alleged discrimination or other issue giving rise to the potential disciplinary action;
- any relevant work history or background (ie, previous warnings) the employer may take into account when deciding the appropriate action; and,
- information about how and when the employee is asked to respond, as well as any other rules (ie, confidentiality) that may apply to the process.
Responding to Show Cause Letters
There is no ‘all-purpose’ response to a show cause letter
There are many different approaches a person may take when faced with a complaint about alleged discrimination. The reasons for this are obvious – not all allegations are the same and individual circumstances need to be considered.
Discrimination in the workplace can take different forms. A study by the Diversity Council of Australia on discrimination and harassment in the workplace showed the highest rates were experienced by people who are Aboriginal and Torres Strait Islander, people with non-Christian religious affiliations, people with disabilities, people who identify as LGBTIQ+, and young workers (under 30):
Discrimination occurs, as do complaints of discrimination that are unfair or false. However, it is not always a case of the accuser lying about events.
People may face false or unfair workplace discrimination complaints for all sorts of reasons. For example, executives and managers make many decisions that affect the rights or interests of workers. Those workers may feel unfairly targeted, rightly or wrongly. It is often in that context a discrimination complaint is made against an executive or manager.
Upsetting people will not necessarily be unlawful discrimination unless the conduct is linked to, or based on, one of the protected characteristics set out in discrimination laws.
The varied ways a discrimination complaint may arise, and the various forums in which discrimination complaints can be progressed, 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 for discrimination 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 show cause letters for discrimination include:
- Obtaining advice and guidance;
- Challenging the process;
- Challenging the allegations; and,
- Initiating ‘without prejudice’ negotiations.
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.
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 letter for discrimination (learn more).
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.