The Labour Code does not regulate procedure for conducting an internal investigation when an Employer needs to investigate or verify an Employee’ act before deciding on a disciplinary action. Therefore, depending on the operations of each enterprise, the Employer will build their own procedures for conducting an internal investigation, provided that these procedures are not contrary to relevant laws.
Pursuant to Article 122.1(a) of the Labour Code, the Employer bears the burden of proof of Employee’ violations before imposing disciplinary actions. Therefore, after all, the procedure for conducting an internal investigation is aimed at collecting evidence to prove that the Employee’ acts have violated the ILR, thereby imposing disciplinary actions. As a result, the highest legal risk in an internal investigation will be the legal validity of the evidence collected from said internal investigation activities.
In practice, in order to ensure the evidence are accurate and valid in case of labour disputes, the Employer may work with concerned Employee and/or the individuals who have witnessed/acknowledged the case and make minutes of these working sessions or request these persons to prepare and submit written declarations regarding the case for the purpose of evidence gathering. In addition, to strengthen the validity of the collected evidence, the Employer should consider using the bailiff services. The bailiff will establish minutes of the working sessions between the Employer and the concerned Employee and/or record the fact that the concerned Employee and the persons who witnessed/acknowledged the case have submitted their declarations on the case to the Employer as above-mentioned.