What should a show cause letter include?
A well drafted show cause letter will usually consist of the following components:
- Confirming factual findings that the business has made about one or more matters.
Example: "The business has completed its investigation, and has formed the view, on the balance of probabilities, that you have engaged in a breach of our Code of Conduct by [details]".
- Providing the business' preliminary view about what it proposes to do next.
Example: "The business has formed a preliminary view that your actions above constitute a serious breach of our Code of Conduct warranting termination of your employment on the basis of serious misconduct".
- Inviting the employee to provide their input in relation to the business' preliminary view on next steps within a certain timeframe.
Example: "You are invited, and strongly encouraged, to attend a meeting to be held in [e.g. two days' time] to provide your response to this letter, and you may also provide a written response at or prior to the meeting. You may bring a support person to the meeting".
- Outlining what will happen next.
Example: "After the above date the business will proceed to make a decision about your employment, having regard to any feedback you provide at or prior to our meeting above. Should the business confirm its preliminary view about next steps, this will involve a termination of your employment on a summary basis."
Why use a show cause letter?
A show cause letter can be invaluable to mitigate risk associated with an unfair dismissal claim, by:
- clearly advising the employee of the business' factual findings (procedural fairness)
- advising them (in the example above) that their ongoing employment is in jeopardy (procedural fairness);
- giving them an opportunity to respond, and demonstrating that the business has an open mind about changing its preliminary view (procedural fairness); and
- lessening the likelihood that any ultimate dismissal will be found to be harsh, on the basis that the business has considered alternatives to dismissal. For example, in the scenario above, the employee might convince the business to provide the employee with notice rather than summarily dismissing them, or to downgrade the dismissal to a first and final warning.
Show cause letters need not be linked to dismissal. A business could also use the process if it is contemplating taking a lesser form of disciplinary action, such as a first and final warning.
What if the employee says they can't respond, or need more time to respond?
You can consider providing an employee with one or two reasonable extensions of time to provide a response, provided you have received appropriate reasons and medical evidence that would satisfy a reasonable person as to why such extension(s) should be granted. However, ultimately you should consider "guillotining" a time for receipt of feedback, so that your business is not held in a holding pattern and can proceed to a final decision in a reasonable timeframe.
A common approach for employees is to claim (without appropriate medical evidence) that they are medically unfit to respond. Such an approach is often self-defeating, particularly when the relevant correspondence from the employee also includes lengthy factual assertions about employment-related matters!
A useful response to this is something to the effect of:
"Given it is apparent you are medically fit enough to make these assertions, you appear to be also fit enough to provide a written response to this matter by [date]. Should we not receive this response by this time, the business will proceed to make a final decision without the benefit of your input. We therefore strongly encourage you to respond within this timeframe".
If you require further information or have any queries in relation to this series, please contact Sina Zevari.
This is a series - this article is part 3.
Part 1 can be found here >
Part 2 can be found here >
Part 4 can be found here >
