A show cause letter (sometimes called a "show cause notice" or "notice of allegations") is a letter from your employer that sets out allegations or concerns about your conduct or performance and asks you to explain, usually in writing and by a deadline, why you should not be disciplined or dismissed.
Receiving one is stressful, but it is also your best opportunity to influence the outcome. What you write, and how, can make the difference between keeping your job and losing it, and it will be read closely if the matter ever reaches the Fair Work Commission.
Deadline: Check the deadline in the letter today. If it does not give you enough time to get advice and respond properly, ask in writing for more time. If you are dismissed, you then have 21 days from the day the dismissal takes effect to lodge a claim with the Fair Work Commission.
What a Show Cause Letter Means
A show cause letter usually comes after an investigation, or after your employer has formed a preliminary view that the allegations are made out. It commonly:
- sets out the allegations or findings;
- says what your employer is considering doing, which can range from a warning to dismissal;
- invites you to respond, often in writing and sometimes at a meeting; and
- gives a deadline.
It is not a decision. If your employer has already made up its mind, the process is not a real opportunity to respond, and that counts against it later.
What a Fair Process Looks Like
For employees covered by the unfair dismissal laws, the Fair Work Commission looks at whether you were told the reason for any dismissal and given a real chance to respond before the decision was made, and whether you were refused a support person you asked for (s 387 of the Fair Work Act 2009 (Cth)). In practice, a fair process usually means:
- Clear allegations. You are told what you are said to have done, when, and with enough detail to answer it. Vague statements such as "your attitude" are not enough.
- The material relied on. You are given, or told the substance of, the evidence your employer is relying on, such as the key parts of witness accounts, CCTV, emails or reports, so that you can respond to it.
- A real opportunity to respond, while the decision is still open, with reasonable time to prepare.
- A support person at meetings about possible dismissal, if you ask for one.
- An open mind. The decision-maker considers your response before deciding.
- A proportionate outcome. Dismissal is not the only option; the employer should consider warnings or other steps.
The Commission decides for itself whether misconduct happened, rather than simply accepting the employer's findings, and a missing step is weighed with everything else rather than automatically making a dismissal unfair. The Commission's Unfair Dismissals Benchbook explains these principles in detail.
If your employer has fewer than 15 employees, the Small Business Fair Dismissal Code applies. It still requires a reason, a warning that your job is at risk, and a chance to respond, unless the employer reasonably believes the conduct was serious enough for immediate dismissal.
How to Respond, Step by Step
- Read the letter carefully and note every allegation, the proposed outcome and the deadline.
- Ask for what you need, in writing. If the allegations are vague, ask for particulars. If your employer relies on documents, footage or statements you have not seen, ask for them or their substance. If you need more time, ask for a reasonable extension and explain why.
- Get advice before you respond. A short conversation early can shape the whole response. We can review the letter and help you draft a reply, and your employer does not need to know you have had help.
- Answer each allegation directly. For each one, say whether you accept it, deny it, or accept part of it, and explain why. Deal with the evidence your employer relies on.
- Give context and anything that reduces seriousness. For example, your length of service and good record, whether you were trained or knew the rule, whether others have done the same thing without being dismissed, health or personal circumstances, and what you would do differently.
- Address the proposed outcome. Even if some conduct is accepted, explain why dismissal would be disproportionate and what a fair alternative would be.
- Stay professional. Avoid attacking the complainant or raising unrelated grievances in the response. If you believe the process has been started because you made a complaint, took leave or for another prohibited reason, tell your lawyer, because that may give you a general protections claim.
- Keep copies of the letter, your response and any emails, and make notes of every meeting straight afterwards.
Key point: Your response is evidence. Write it as if a Fair Work Commission member will read it, because if you are dismissed, they probably will.
Meetings and Support Persons
If you are invited to a meeting, you can ask to bring a support person, such as a family member, a friend, a colleague or a union representative. Your employer does not have to offer one, but an unreasonable refusal after you ask is a factor in an unfair dismissal claim (s 387(d)). A support person is there to support you and take notes; they do not usually speak for you. Your employer does not have to wait indefinitely for your chosen person to be available, so nominate someone who can attend.
Do not secretly record the meeting without getting legal advice first; in WA, recording a private conversation without consent can be an offence. Take notes instead, or ask for the meeting to be minuted.
If the conduct could also be the subject of a police investigation, get legal advice before you give any written or recorded account.
What Happens Next
After considering your response, your employer might decide to take no further action, give you a warning or final warning, or dismiss you. If you are dismissed:
- you have 21 days from the day the dismissal takes effect to lodge an unfair dismissal or general protections claim; and
- the show cause letter, your response and your notes will be central evidence.
A warning is not usually something you can challenge in the Fair Work Commission. But if a warning or other disciplinary step was taken because of a complaint you made or another prohibited reason, a general protections claim may be possible even though you still have your job.
If you work in the WA state system, for example for a WA government agency, a WA local government, or a sole trader or partnership, different rules and a 28-day limit apply; see our WA state system guide. WA public sector employees also have specific disciplinary procedures; see public sector employees.
How We Can Help
We regularly help employees respond to show cause letters. We can:
- review the letter and tell you where you stand;
- draft or review your response, with or without our name on it;
- advise you on meetings and support persons; and
- where it makes sense, negotiate an exit on better terms, such as a resignation, a payment and an agreed reference.
Our pages on allegations, suspension and what to do if you might be dismissed cover related steps. Contact us for a free discussion before your response is due.