Why you should avoid show cause response letter templates

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The problem with show cause letter templates

Templates for show cause responses

The primary objective of a response to a show cause letter is to persuade. More specifically, to persuade the employer to a particular outcome.

It is not uncommon for people who have asked to show cause to be filled with uncertainty, doubt, and stress. Such responses are normal, particularly for people who feel they are being wronged by facing the prospect of disciplinary action.

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 and seeking out professional assistance. People can underestimate just how much work is involved in formulating a response that will produce a just outcome. This, in turn, can lead people to look for shortcuts. One such shortcut is to look online for show cause letter response templates, hoping they will provide useful content.

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

So, while I emphasise the need for responses that are bespoke and considered, I do believe it is possible to identify common threads among effective responses. In order to understand these commonalities, I’ll go through 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 letter response

1. 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 generic show cause response templates, crafting a response with persuasion front of mind is likely to be more useful.

Despite cautioning against 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.

Things to do most of the time

So, turning to the things that people generally ought to do in providing a response to a show cause letter:

• One would be to identify the issues in dispute, either relating to the factual allegations or issues concerning procedural fairness. Frequently, I see people seek to avoid the tough issues. My view is you cannot succeed by simply ignoring bad points, particularly if they are part of the issues under consideration.
• Outlining the rules, policies and procedures that ought to be applied may also assist a respondent if the employer has failed to do so, or if there is some concern about the 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 you have mapped that out a logical way.

Things to avoid most of the time

Turning now to issues that are generally best avoided.

• Addressing issues that are unconnected or irrelevant to the issues can make a response appear unhelpful, petty, or vindictive. Sometimes I will see a response that can only be described as adopting a ‘scorched Earth’ approach. Obviously, such responses are quite damaging to the employment relationship and can 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. This is self-evident. 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. Respondents should carefully examine all inconsistencies.
• Threatening, offensive, or abusive responses are likely to be counterproductive at the least and possibly a breach of criminal law at worst. 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.

2. Why the message must be 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, but that is no excuse. Anyone who receives that kind of response can see the obfuscation a mile away and knows what it signals.

Really, there is no viable alternative to making the message clear.

possible, it is important to be clear about what is disputed and what is not. In some cases, it is not possible, but in most it is. The reason it is important is that it will 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, the allegation.

There are many ways to check the clarity of a message. 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, it is likely just muddying the message.

3. Addressing allegations and issues

There is a common – and understandable – error that people make when acting without professional advice. It is to not properly acknowledge when mistakes were 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.

Feeling unable to acknowledge the error or not knowing how to may signal the need to get advice. Avoiding difficult questions can make your answer to a show cause letter ultimately unconvincing.

An example of a response that acknowledged a mistake and lapse of judgement well can be seen in the case of Macklin v BHP Coal Pty Ltd [2018] FWC 7429. Paragraph [62] of the judgment 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.

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. Without being able to explain the details in a manner that attracts the interest of the decision-maker, the response to the show cause letter may be ineffectual.

4. 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, or 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 judgment or a misunderstanding.

5. Ways to conclude a show cause letter response

In responding to a show causing 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.

It is always necessary to keep in mind that there is no ‘one size fits all’ approach to responding to a show cause letter. It highlights why you should avoid using show cause letter templates. 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.

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 prejudice’ 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.

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. 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