Show Cause Notice

A show cause notice is a formal document issued during a disciplinary process. It sets out the details of an alleged offence and asks the recipient to explain why disciplinary action should not be taken. This article will examine how a show cause notice is used in an employment context.

When is a show cause notice used?

A show cause notice signals an intention by an employer to take disciplinary action if suitable reasons are not provided for the behaviour by the employee. A show cause notice may be given after a workplace investigation, disclosure by a third party or an admission by the employee themselves. A notice commonly relates to serious misconduct, but it can also relate to other problems such as an occupational health and safety breach, workplace bullying and harassment, or underperformance.

Serious misconduct

This occurs when an employee acts in a way that risks the health and safety of another person; damages the reputation of a business; or is inconsistent with continuing their employment. It includes theft, fraud, assault, use of illicit drugs, or refusing to carry out duties.

Underperformance

This occurs when an employee does not do their job properly or behaves in an unacceptable way. It includes not working to a required standard or at all; not adhering to workplace policies and rules; and disruptive or negative behaviour.

Why is a show cause notice important?

The notice is important for both employer and employee, for the critical reason of showing that procedural fairness has been afforded to the employee.

Procedural fairness is the key to mitigating the risk of legal action. It includes:

• providing allegations in writing;
• independently verifying the allegations;
• allowing the employee an opportunity to respond;
• offering the employee the opportunity to have a support person at interviews.

What is in a show cause notice?

There is no specific template for a show cause notice because each employment situation is different, but a general formula can be applied. The notice should:

• be clear and free from emotion;
• be issued as soon as practicable;
• identify the issue, which may be a breach of a law, code of conduct, or term of employment;
• state the standard of performance expected;
• detail the allegations that require a response, which may include dates, times, locations, witnesses, or documents;
• state the evidence the employer has to support the allegation;
• state the disciplinary action proposed to be taken;
• identify any prior violations;
• state how and by when the employee is to respond.

How do I respond to a show cause notice?

An employee will need to identify the key components of the notice (listed above) in order to respond effectively, and must respond in the manner and within the time specified in the notice. The employee will need to consider factors such as whether the allegations are clear and have substance, and whether it is possible to gather information or witnesses to support their case.

Legal action

If the employee does not defend their conduct effectively, admits the breach, or does not respond to the notice, they can face disciplinary action or dismissal.

If the employer does not afford procedural fairness to the employee, they can face a claim of unfair dismissal, adverse action or breach of contract. In some cases, the employer may be required to show they provided help or training to the employee, and that adequate time was provided to address any performance issues.

In most cases, employees have protections under the Fair Work Act 2009. The Fair Work Commission can adjudicate a workplace dispute, such as a claim of unfair dismissal. Under the Act, a person has been unfairly dismissed if the dismissal was “harsh, just or unreasonable”.

Under Section 387 of the Act, in deciding a claim of unfair dismissal, the commission must consider whether:

• there was a valid reason for the dismissal, related to capacity or conduct;
• the person was given the reason;
• the person was given an opportunity to respond;
• the person was given an opportunity to have a support person present an any discussion;
• the size of the business impacted the procedures used in the dismissal;
• any absence of human resources expertise impacted the procedures.

If the person is found to have been unfairly dismissed, the commission can order the reinstatement of the employee or the payment of compensation to them by the employer.

For advice on employment law, or advice or representation in any legal matter, please contact Armstrong Legal.