Workplace Investigations
Contributing Editors
Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as of the importance of ESG rises. Regulated industries such as finance, healthcare and legal face additional hurdles, but public scrutiny of businesses and how they treat their people across the board has never been higher. Conducting a fair and thorough workplace investigation is therefore critical to the optimal operation, governance and legal exposure of every business.
IEL’s Guide to Workplace Investigations examines key issues that organisations need to consider as they initiate, conduct and conclude investigations in 29 major jurisdictions around the world.
Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.
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01. What legislation, guidance and/or policies govern a workplace investigation?
01. What legislation, guidance and/or policies govern a workplace investigation?
Finland
Finland
- at Roschier
- at Roschier
Mainly, the Occupational Safety and Health Act (738/2002). In addition, the following also have relevance in connection to a workplace investigation: the Employment Contracts Act (55/2001), the Criminal Code (39/1889), the Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health at Workplaces (44/2006), the Act on Equality between Women and Men (609/1986) and the Non-discrimination Act (1325/2014). In addition, the employer's own policies must be taken into consideration while conducting a workplace investigation.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
While there are no specific laws that regulate a workplace investigation, there are several laws that companies should consider when conducting a workplace investigation concerning alleged employee misconduct.
One key example is the Whistleblower Protection Act (WPA). The WPA provides legal protection to a whistleblower if their allegations are raised in good faith and are in the public interest as specified under the WPA. If the WPA applies, certain obligations apply to the company, including but not limited to the following:
- the obligation to protect the confidentiality of the whistleblower’s identity;
- protecting the whistleblower if the whistleblower suffers or is likely to suffer serious harm to life or health as a result of whistleblowing and the whistleblower requests protection; and
- refraining from taking retaliatory action on the whistleblower.
Therefore, if an employee raises allegations of another employee’s misconduct, the company should review whether the allegations fall under the WPA.
There are also special laws that impose obligations on the company if there are certain types of allegations (eg, sexual harassment, workplace harassment).
In addition, when collecting and reviewing employees’ electronic data, such as emails or files stored in work laptops or company servers, which may contain personal information, the company should comply with data privacy laws discussed in more detail in questions 7 and 8.
Companies may also have internal policies (eg, whistleblower protection policies, Code of Conduct) that may apply to workplace investigations, aside from the requirements under Korean law.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
There is no specific legislation governing workplace investigations in Turkish law. However, there are general principles stemming from Labour Law No. 4857 as well as good practice principles. Data protection laws also occasionally intertwine with these. The internal codes and policies of the company should also be followed throughout the process.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
There are no specific legislative requirements for workplace investigations in Vietnam. However, Labor Code No. 45/2019/QH14 dated 20 November 2019 (2019 Labor Code), which is currently the primary legislation governing employment relationships, requires employers that have more than ten employees to provide a mechanism and procedure for handling sexual harassment cases in the workplace. Other than that, an employer may incorporate policies and guidelines on how to deal with workplace investigations into its handbook.
02. How is a workplace investigation usually commenced?
02. How is a workplace investigation usually commenced?
Finland
Finland
- at Roschier
- at Roschier
When the employer becomes aware of possible misconduct, the employer must commence an investigation immediately, in practice within about two weeks. The information may come to the employer's knowledge via, for example, the employer's own observations, from the complainant or their colleagues or an employee representative.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
There are many different ways a workplace investigation concerning employee misconduct could commence. Below are some key examples from our experience:
- an employee reports allegations concerning another employee’s misconduct through an ethics hotline or other means (eg, email, phone call);
- an outsider such as a former employee or a vendor reports allegations concerning employee misconduct to a company officer;
- an internal audit reveals potential employee misconduct;
- media reports raise allegations of employee misconduct; and
- an external investigation begins (eg, by criminal authorities or administrative agencies) concerning alleged employee misconduct.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
The need to initiate an internal investigation may arise from the receipt of information from various sources. Reporting is one of the most common sources and can be in different forms. In Turkey, while conventional methods such as reporting to a direct supervisor, human resources or executives is quite common, whistleblowers also use reporting mechanisms such as web-based forms, telephone hotlines or e-mail, if such mechanisms exist. It is critical to obtain as much information as possible from the complainants at this initial contact, to make a sound decision on whether or not to commence an investigation. There is no requirement to decide to start an investigation and it can be commenced through a corporate resolution (eg, ethics committee resolution or board resolution) of a decision-making body or a decision of the body or person who has such authority under the company policies. The investigation team who will conduct the process may also be approved by the company's decision-making body. It is also advisable to have a preliminary inquiry for the complaints, before commencing a fully-fledged investigation.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
The circumstances in which an employer commences a workplace investigation may vary, either through a whistleblower, through an internal system, email or phone call; complaints from suppliers, contractors, or customers; or accounts from observations and hearsay. Sometimes, it comes from anonymous complaints. However, it is common for an employer to verify whether the report or complaint is substantiated, partially substantiated, or unsubstantiated, which is sufficient to initiate and commence a workplace investigation.
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
Finland
Finland
- at Roschier
- at Roschier
There is no legislation on temporary suspension in the event of a workplace investigation or similar. In some situations, the employer may relieve the employee from their working obligation with pay for a short period.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
The company may place an employee who is subject to a workplace investigation under administrative leave if this seems necessary or appropriate to ensure the integrity of the workplace investigation. While administrative leave can take different forms, one way is to issue a “standby order” to the relevant employee, instructing him or her not to come into work and prohibiting contact with other employees or customers while the workplace investigation is ongoing.
Administrative leave is not a disciplinary action, but rather an exercise of the company’s authority to take personnel management measures. This authority is generally subject to a “reasonableness” test, with the Korean courts balancing the employer’s business necessity in placing the employee on administrative leave with the inconvenience caused to the employee. In conducting the balancing test, the Korean courts have considered whether the employee receives pay during the leave and the duration of the leave, among other things. In general, if the duration of the leave is not excessive and is with full pay and benefits, the employer’s management prerogative is likely to be recognised.
The company doesn't need to obtain the employee’s consent but, in practice, a company should consider getting the employee’s acknowledgement that they have received the administrative leave notice.
In addition to Korean labour law, other factors such as the company’s rules of employment or a collective bargaining agreement (if any) may affect the company’s ability to place the employee on administrative leave, by providing for prescribed procedures for placing an employee on administrative leave or requiring the company to obtain the union’s consent if a union leader or executive is involved.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
An employee can be suspended during a workplace investigation provided his or her prior written consent is obtained to this effect during or immediately before the investigation. Obtaining a generic written consent from the employee regarding suspension, which is not tied to a specific event, will not be valid. If there is a suspension of employment due to the workplace investigation, the obligations of the parties arising from the employment relationship continue, except for the employer’s obligation to pay a salary (and provide benefits, if any) and the employees’ duty to perform work.
There is no provision or established court decision setting forth the rules regarding the length of the suspension period; however, as a general rule, this period should be as brief as possible, so as not to cause any impression that the employment relationship has been terminated by the employer. Suspension of an employee on full pay during a workplace investigation, which is also known as garden leave, is a commonly used alternative to a conventional suspension method described above. During the garden leave period, an employee can be banned from entering the workplace and performing any of his or her duties either partially or entirely while continuing to be paid his or her regular salary, along with fringe benefits. Garden leave is not a concept regulated under Turkish employment legislation, but rather developed in practice, mostly by the Turkish subsidiaries of multinational companies. An ideal approach for the implementation of garden leave would be to obtain the written consent of the employees either at the commencement of employment or during the investigation.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Article 128 of the 2019 Labor Code explicitly states that an employer has the right to temporarily suspend an employee who is being investigated for committing an alleged act of misconduct in breach of the labour rules, if the following conditions are met:
- the misconduct committed is complex in nature, and any further work carried out by the employee may jeopardise the ongoing investigation. The law does not clearly define “complex nature”; it may be open to various interpretations by the employer. In practice and from our experience, allegations of sexual harassment may be considered complex misconduct and, therefore, can be a ground for suspension;
- the employer has consulted with (and effectively obtained the approval of) the grassroots-level representative organisation of the employee. No formal process is stipulated under the law for such consultation with this organisation. From our experience, the consultation can be in the form of a meeting between the management of the employer and the executive committee of the organisation. However, the organisation should require the employee to acknowledge their consent in writing by signing the meeting minutes;
- the period of suspension cannot exceed 15 days or 90 days in “special circumstances”. The law does not define what falls under “special circumstances”. In our view, this will be subject to the interpretation and discretion of the employer after consulting with the grassroots-level representative organisation of the employee; and
- the employee must be paid 50% of his or her wage that would be due during the period of the temporary suspension in advance. When the temporary suspension ends, if no disciplinary measure is imposed on the employee, the employer must pay the full wage for the period of the suspension by paying the remaining 50%.
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
Finland
Finland
- at Roschier
- at Roschier
The employer must conduct the investigation, but the actual work can be done either by the employer's personnel or by an external investigator, for example, a law firm. Either way, there are no formal criteria for the persons executing the investigation; however, impartiality is required from the person conducting the investigation
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
While there are no laws that set minimum qualifications for who should conduct a workplace investigation, companies often engage external legal counsel to ensure the investigation is conducted in an unbiased and professional manner. If the company itself undertakes the workplace investigation, the company should take precautions such as ensuring that the person conducting the investigation is not biased and not involved in the alleged wrongdoing. If the person conducting the investigation cannot converse in the native language of the employee under investigation, the company may consider arranging for an interpreter when conducting interviews, to minimise the risk of misunderstanding.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
There is no compulsory requirement or qualification arising from the law as to the selection of the investigation team. The number and the profile of the investigation team need to be decided according to the characteristics of the case, whereas the head of the investigation team needs to be a competent and experienced investigator. A conflict of interest review is required to be conducted for the whole investigation team to protect the interests of the company. As conflicts of interest can also arise during an investigation process, relying on the support of an outside legal team should be considered, particularly for internal investigations that are likely to expand.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
There are no statutory minimum qualifications or criteria for someone to conduct a workplace investigation. The employer can simply delegate the investigation task to anyone. However, it is good practice for qualified persons with proper training in workplace investigations to conduct the investigation as these involve intricate issues. It is also important that investigators are fair, unbiased, and impartial. In addition, they should not be related to any parties involved in the investigation.
In complex cases or cases involving a senior or high-ranking employee, the employer should appoint a person with a higher authority or rank in the company to lead and oversee the conduct of the investigation. This also applies in instances where it is foreseeable that the investigation may lead to disciplinary action, summary dismissal of the employee, or a report to an authority.
There are instances when engaging with external parties or professional advisors may be necessary. This is especially the case if the conduct under investigation is serious or widespread, which may lead to regulatory consequences if the employer does not have the expertise to handle the investigation.
05. Can the employee under investigation bring legal action to stop the investigation?
05. Can the employee under investigation bring legal action to stop the investigation?
Finland
Finland
- at Roschier
- at Roschier
The employee does not have a legal right to stop the investigation. The employer must fulfil its obligation to investigate the alleged misconduct.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
An employee under investigation cannot bring legal action (eg, an injunction) to stop a workplace investigation. However, there have been instances where an employee under investigation raised legal challenges concerning the investigation (eg, breach of privacy). Please see question 19. While the company would not be legally compelled to stop the investigation when legal challenges are raised, they may face penalties under the relevant laws if it is determined they have committed a violation.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
There is no specific remedy provided under Turkish law to stop the investigation. One may consider requesting an injunction from a court for this purpose, but it is less likely that such a request would be successful. This is because investigations are often conducted for fact-finding purposes and to obtain an injunction the claimant will need to prove that this fact-finding exercise will pose a great risk and cause irreparable harm to the employee.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
The employee can only bring legal action to stop the investigation if he or she claims that his or her rights have been clearly and blatantly violated during the investigation. However, the employee bears a heavy legal burden of proof to substantiate his or her claims. Based on our experience, most of the time, it is very difficult for the employee to prove this and successfully stop the investigation.
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
Finland
Finland
- at Roschier
- at Roschier
There is no legislation on a witness's role in investigations. However, the legislation on occupational safety requires that employees must report any irregularities they observe. Depending on the situation, participating in the investigation may also be part of the person's work duties, role or position, in which case the employer may require the employee to contribute to clarifying the situation. However, there is no formal obligation to act as a witness, and there is no legislation regarding the protection of witnesses. If a witness wishes, they may have, for example, an employee representative as a support person during the hearing.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
While there are no laws to compel co-workers to act as witnesses, the company may have internal policies (eg, rules of employment, code of conduct) that require employees to cooperate with company actions such as a workplace investigation. That said, it would be difficult to enforce such policies even if the employee refuses to cooperate (eg, taking disciplinary action against an employee who refuses to act as a witness).
There may be instances when the company is required to provide certain legal protection to employees acting as witnesses in an investigation. For example, if a whistleblower falling under the WPA is required to act as a witness, they would be entitled to legal protections as discussed in question 1. The company may also have internal policies that provide protection to employees acting as witnesses in an investigation.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
Co-workers cannot be compelled to act as witnesses in a workplace investigation. Employees also have rights arising from the law that must be respected by the employers and investigators, such as the right to privacy or to remain silent, freedom of expression and communication. These rights must be protected during every step of the workplace investigation process.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
There are no provisions in Vietnamese law that impose any statutory or legal obligation on an employee to act as a witness in an investigation. Hence, an employer does not have the power to compel its employees to act as witnesses in an investigation. However, a request for an employee to provide evidence or give details of an event that he or she knows of may reasonably be deemed to be a lawful and reasonable directive from an employer. Consequently, an employee’s refusal to act as a witness may be tantamount to an act of insubordination, which may lead to disciplinary action by the employer. In any circumstances, if an employee refuses to attend an interview or is generally not cooperating with an investigation, the reasons for this will need to be considered carefully by the employer.
07. What data protection or other regulations apply when gathering physical evidence?
07. What data protection or other regulations apply when gathering physical evidence?
Finland
Finland
- at Roschier
- at Roschier
Generally, the basic principles set out by the GDPR and the Finnish Data Protection Act apply to data processing in connection with investigations, including evidence gathering: there must be a legal basis for processing, personal data may only be processed and stored when and for as long as necessary considering the purposes of processing, etc.
Additionally, if physical evidence concerns the electronic communications (such as emails and online chats) of an employee, gathering evidence is subject to certain restrictions based on Finnish ePrivacy and employee privacy laws. As a general rule, an employee’s electronic communications accounts, including those provided by the employer for work purposes, may not be accessed and electronic communications may not be searched or reviewed by the employer. In practice, the employer may access such electronic correspondence only in limited situations stipulated in the Act on Protection of Privacy in Working Life (759/2004), or by obtaining case-specific consent from the employee, which is typically not possible in internal investigations, particularly concerning the employee suspected of wrongdoing.
However, monitoring data flow strictly between the employee and the employer's information systems (eg, the employee saving data to USB sticks, using printers) is allowed under Finnish legislation, provided that employee emails, chats, etc, are not accessed and monitored. If documentation is unrelated to electronic communications, it also may be reviewed by the employer. Laptops, paper archives and other similar company documentation considered "physical evidence" may be investigated while gathering evidence on the condition that any private documentation, communications, pictures or other content of an employee are not accessed.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
It may be difficult for a company to search and collect physical items that personally belong to the employee.
While the company may search and gather electronic data, such as emails or files stored in work laptops or company servers, there are requirements and restrictions under the Criminal Code, the Personal Information Protection Act (PIPA), and the Act on Promotion of Information and Communications Network Utilisation and Information Protection, etc (Network Act), among other laws.
Article 316(2) of the Criminal Code states that accessing the contents of another person’s documents, pictures, special media records, etc, that are sealed or designated as secret using technical means may constitute the crime of accessing electronic records.
Under the PIPA, consent must be obtained from the information owner to collect or use personal information, or to provide such information to a third party. Consent must be separately obtained for sensitive information or unique identification information. There are strict requirements as to the format and contents of the consent forms under the PIPA.
The Network Act prohibits accessing an information and communications network without rightful authority or any intrusion that goes beyond the permitted authority for access. Although this may not be an issue if a company directly manages the email accounts at issue, if an employee’s email account is protected by a password or through other means, accessing emails from that account without obtaining the employee’s consent could constitute unlawful intrusion under the Network Act as well as under the Criminal Code as discussed above.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
The conditions applicable to gathering physical evidence mainly stem from the precedents of the Turkish Constitutional Court about employment disputes and the rules set forth under Turkish Law No. 6698 on the Protection of Personal Data (DPL). It is generally accepted that employers can gather physical evidence for certain legitimate purposes, such as disciplinary investigations, the prevention of bribery and corruption, fraud or theft, money laundering, and employee performance monitoring and compliance. In doing so, employers must, however, comply with the fundamental principles of the Turkish Constitutional Court as briefly described below:
- The grounds for the gathering of evidence must be legitimate. The definition of the legitimate interests of the employer may change depending on the characteristics of the business, workplace and employee job description, as well as the specific circumstances of the case. Therefore, it is advisable to carry out a balancing test between the legitimate interest the employer is seeking to protect and the employee’s interest in the protection of their privacy.
- The collection activities must be proportionate, in the sense that the measure implemented by the employer must be appropriate and reasonably necessary to achieve the legitimate purpose, without infringing upon the fundamental rights and freedoms of the employees. For instance, e-mail monitoring to collect evidence may not be proportionate if it is determined that e-mails that are not related to the incident subject to investigation are also accessed. To achieve this, certain keywords or algorithms can be used while monitoring e-mails during a disciplinary investigation.
- The collection process must be necessary to achieve the purpose. In other words, the collection of physical evidence must only be carried out to the extent there are no other measures allowing the employer to achieve its purpose, such as witness testimony, workplace records, or examining the results of projects. If the purpose can be achieved through less invasive means, the collection of physical evidence may not comply with the principles established by the decisions of the Constitutional Court.
Separately, depending on the type of physical evidence collected, the collection process may lead to the processing of the concerned employees’ personal data. Under the DPL, personal data collected in Turkey can only be processed if the explicit consent of the data subject is obtained; or the data is processed based on one of the exceptions to consent provided by the law. To the extent the data processing can be deemed to be based on the pursuit of a legitimate interest of the employer, it should also meet the following conditions:
- it should be the most convenient and efficient method to identify any employee wrongdoing to protect the legitimate interests of the company; and
- the data processing should not harm the fundamental rights and freedoms of the employees.
The employer should in any case comply with the obligation to inform employees before the processing of their data, through a privacy notice containing mandatory information required by the DPL.
In addition, as a general principle, the evidence-gathering process should always be conducted based on the assumption that the internal investigation can lead to litigation. Any evidence that will be used in litigation needs to have been gathered in compliance with the law. In both criminal and civil litigation, the courts will review each piece of evidence to confirm whether it was gathered through lawful methods and disregard any evidence that fails to comply with due process.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Decree No. 13/2023/ND-CP on personal data protection is the main data protection regulation in Vietnam. It regulates the processing of personal data, including the collection or gathering of data. If the physical evidence contains personal data of an individual, the gathering of physical evidence must comply with this decree.
08. Can the employer search employees’ possessions or files as part of an investigation?
08. Can the employer search employees’ possessions or files as part of an investigation?
Finland
Finland
- at Roschier
- at Roschier
Only the police can search employees' possessions (assuming that the prerequisites outlined in the legislation are met).
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
As discussed in question 7, it may be difficult for a company to search an employee’s personal possessions. The company may search and gather electronic data stored in work laptops or company servers, subject to legal requirements and restrictions (eg, obtaining consent).
The PIPA provides specific guidance on the requirements for obtaining consent. Under the PIPA, to collect or use an individual’s personal information, the information holder must be informed of and consent to:
- the purpose of the collection or use;
- the personal information that will be collected;
- the period of retention and use; and
- his or her right to refuse to provide consent and any disadvantages that may result from such refusal.
There are separate requirements for obtaining consent to provide an individual’s personal information to a third party. Also, consent must be obtained separately for the collection, use or provision of sensitive or unique identification information.
Under limited circumstances, personal information may be collected, used, or provided to third parties without obtaining the consent of the information holder. For instance, a company may collect and use personal information without obtaining consent where obtaining the information is necessary to achieve the company’s “legitimate interests”, which clearly exceed the information holder’s right to his or her personal information, and the collection and use are carried out within reasonable bounds. The term “legitimate interests” in this context is generally understood as a concept similar to “justifiable act” under the Criminal Code. The Korean Supreme Court has held that under exceptional circumstances such as the following, the company’s collection and review of employee data may constitute a “justifiable act” under the Criminal Code:
- the company had specific and reasonable suspicion that the employee had committed a crime and the company had an urgent need to verify the facts;
- the scope of the company’s review was limited to the suspected crime through the use of keywords, etc;
- the employee had signed an agreement stating that he or she would not use work computers in an unauthorised manner and that all work products would belong to the company; and
- the company’s review uncovered materials that could be used to verify whether the employee committed the alleged crime.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
There is no explicit answer to this question. However, it is important to make a distinction between employees’ possessions and files that are strictly personal and employees’ possessions and files that are found on devices or files provided for company use. For the first category, the employer does not have the right to search employees’ possessions and files. For the latter category though, justifications need to be established, by observing the requirements explained in question 7. Furthermore, the employers must also ensure that employees are fully and explicitly informed in advance of the monitoring operations, either through a provision included in the employment agreement, or in a separate notice or employee policy, the receipt of which should be duly acknowledged by the employee.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
As part of an investigation, an employer may search the objects or files that are part of the company’s property (eg, company or employers’ laptops or phones for business purposes and emails or messages stored on the company’s servers) without prior notice and without the need of the consent of the employee. However, the employer has no right to search an employee’s personal possessions without consent.
To further avoid arguments or conflicts as to the right of ownership of a particular object or property, employers may specify in their internal policies, labour contracts, and handover documents what is to be regarded as the company’s assets and subject to a search in a workplace investigation.
09. What additional considerations apply when the investigation involves whistleblowing?
09. What additional considerations apply when the investigation involves whistleblowing?
Finland
Finland
- at Roschier
- at Roschier
In respect of data protection, the processing of personal data in whistleblowing systems is considered by the Finnish Data Protection Ombudsman (DPO) as requiring a data protection impact assessment (DPIA).
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
Aside from the legal obligations imposed on the company when dealing with a whistleblower who is subject to the WPA as discussed in question 1, there are also practical considerations the company should keep in mind when dealing with a whistleblower, regardless of whether the whistleblower falls under the WPA.
For example, there have been instances where an employee who raised allegations filed a complaint with Korean authorities (such as the Anti-Corruption and Civil Rights Commission (ACRC) or the Labour Office) that the company took retaliatory action against the whistleblower. The company should carefully review the legal risks before taking action, such as personnel action or civil or criminal action, against an employee who raises allegations if that employee was also involved in the wrongdoing.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
Although there is no specific legislation in Turkish law on whistleblowing, necessary mechanisms need to be implemented to ensure that whistleblowers and the whistleblowing process are kept confidential. In addition, whistleblowers must be encouraged and supported to be open about raising their concerns in good faith. A whistleblowing activity, when it amounts to raising a concern in good faith, must not be mistreated by the employer. Employers should also put in place protection mechanisms against the mistreatment of whistleblowers or retaliation towards them by other employees.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
It is up to the employer to determine whether or not to open an investigation after a complaint from a whistleblower. It is very important that the identity of the whistleblower is protected and that the employer also should not reveal the identity of the witness or the source of information, as the sources and witnesses may fear retaliation and feel uncomfortable or hesitant in giving information or raising concerns again.
10. What confidentiality obligations apply during an investigation?
10. What confidentiality obligations apply during an investigation?
Finland
Finland
- at Roschier
- at Roschier
Concerning a workplace investigation, there is no specific legislation in force at the moment regarding confidentiality obligations. All normal legal confidentiality obligations (eg, obligations outlined in the Trade Secrets Act (595/2018)), and if using an external investigator, the confidentiality obligations outlined in the agreement between the employer and the external investigator, apply. Attorneys-at-law always have strict confidentiality obligations as per the Advocates Act (496/1958).
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
It is general practice in Korea for a company to require interviewees to maintain confidentiality concerning a workplace investigation and instruct them that they are not permitted to discuss the matter under investigation with other employees, etc. If an employee violates this instruction, it may be possible for the company to take disciplinary action against them under the company’s rules.
Further, the company or its employees who have engaged in an investigation for sexual harassment or workplace harassment in the workplace are obliged to maintain the confidentiality of the investigation. Failure to comply with such requirements may lead to an administrative fine from the Ministry of Employment and Labour for the company or its registered representative.
There may be some exceptions to the confidentiality obligation, such as when an employee is required by government authorities to provide relevant information in a parallel investigation.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
As a general practice, workplace investigations need to be kept confidential for the integrity of the process. In some cases, employees can specifically request their identity or involvement be kept confidential. In such cases, additional measures need to be taken to protect confidentiality. In any case, obligations and rights arising from the DPL and Labour Law must be respected and complied with by the employer and the investigation team.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Workplace investigations should be conducted in a strictly confidential manner to preserve the integrity and professionalism of the investigation and to protect the identity of the employee under investigation. This means that all information gathered, received, and shared during the investigation (ie, the subject employee and any material witnesses) should only be disclosed on a need-to-know basis.
11. What information must the employee under investigation be given about the allegations against them?
11. What information must the employee under investigation be given about the allegations against them?
Finland
Finland
- at Roschier
- at Roschier
The process must be transparent and impartial, and therefore all the information that may influence the conclusions made during the investigation should be shared with the employee.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
There is no requirement to notify an employee under investigation concerning the allegations against him or her when requesting cooperation with a workplace investigation (eg, requesting the employee’s consent to review electronic data, or requesting an interview).
However, the company may strategically consider explaining the general purpose of the investigation before requesting consent to review electronic data or when requesting an interview. This may help increase the likelihood of cooperation and also reduce the risk of the employee raising objections to the company’s findings from the investigation by saying he or she was not properly informed of the purpose of the investigation, or that the investigation was conducted in a coercive manner.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
Informing the employee under investigation on the subject, purpose and possible consequences of the investigation need to be evaluated by the investigation team before the interview. As a general principle, the interviewer is expected to share the information he obtained on the case with the employee, and ask for confirmation or clarification on these matters. The employee under investigation may be subject to an interview to gain information or as a confrontation if there is concrete evidence. If the evidence in hand is not based on concrete and material grounds, it would be more appropriate not to lead the interview to a confession, but inform the employee of the possible allegations. However, if the available evidence is based on concrete and material grounds, the interviewer may confront the interviewee by sharing the information that was gathered during the investigation in an attempt to obtain a confession.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
There is no legal requirement as to what particular information should be stated in the allegations; however, such information must be provided to the employee under investigation. The information provided by the employer to the employee must be sufficiently clear and specific so that the latter understands the case or alleged issues against him or her and can respond to it.
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
Finland
Finland
- at Roschier
- at Roschier
See question 11, there is no protection of anonymity as the process must be transparent to the parties involved.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
As discussed in question 1, if the whistleblower falls under the WPA, the whistleblower’s identity should be kept confidential. Even if the WPA does not apply, the company may wish to keep the identity of the whistleblower and other key witnesses confidential to the greatest extent possible.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
It is possible to keep such information confidential. If this is the case, the investigation team should conduct the interview outside the workplace of the company. This is actually good practice applicable to all internal investigations, unless there is a particular reason that requires the meetings to be held at the company.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
The identity of the complainant and witnesses must be kept confidential and cannot be disclosed to anyone, unless both the complainant and witnesses consent to its disclosure or if the employer is asked to disclose this information by the competent authorities under Vietnamese law.
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
Finland
Finland
- at Roschier
- at Roschier
Yes, however, the need for an NDA is assessed always on a case-by-case basis.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
Some companies require an employee subject to investigation to sign an NDA or other similar documents (eg, a pledge of confidentiality) agreeing not to disclose information relating to the investigation to outside parties.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
It is crucial to keep the events and facts of a workplace investigation confidential for the integrity of the process. It may be necessary to consider appropriate confidentiality measures to protect the complainant, mitigate risks, and preserve evidence. Damage to the confidentiality of the case can prevent the investigation team from bringing the case to a correct and complete conclusion. Although the labour legislation imposes a general confidentiality obligation on employees, NDAs can still be used as supplementary documents that may emphasise the confidentiality obligations of employees in workplace investigations and provide additional contractual protections such as penalties if there is a breach.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Generally, NDAs can be used to keep the facts and substance of a workplace investigation confidential. There are no express prohibitions against such NDAs. However, there are cases set out under Decree No. 13/2023/ND-CP on personal data protection where personal data is allowed or required to be disclosed without the data subject’s consent, in instances that are necessary to serve the public interest or to protect the life and health of the data subject.
14. When does privilege attach to investigation materials?
14. When does privilege attach to investigation materials?
Finland
Finland
- at Roschier
- at Roschier
The privilege of investigation materials concerns a rather limited amount of cases. In practice, materials may be considered privileged in connection with the litigation process under the Procedural Code (4/1734). For example, communications between a client and an attorney may attract protection against forcible public disclosure.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
No law recognises the common law concept of “attorney-client privilege” in Korea. However, communication with an attorney is protected to some extent under certain laws, such as the Constitution, the Attorney Act, the Criminal Procedure Act, and the Civil Procedure Act. This protection is based on the attorney’s confidentiality obligation, which prohibits an attorney from divulging confidential matters acquired in the course of representing clients, unless otherwise prescribed by law. This confidentiality obligation generally allows an attorney to refuse to testify or comply with document production orders for information or materials the attorney obtained in the course of his or her duties that relate to the confidential information of clients.
In addition, there could be instances where materials from an investigation conducted in Korea may become subject to discovery outside of Korea. It is, therefore, important to ensure investigation materials are privileged under the relevant non-Korean laws in the jurisdictions where attorney-client privilege is recognised (eg, the US).
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
Attorney-client privilege is attached at the time the attorney is hired as a legal representative. Attorney-client privilege, which is regulated under the Law of Criminal Procedure No. 5271 and the Attorney’s Act No. 1136, covers not only the investigation process, but also the legal advice and counselling received before and after the investigation. The importance of this privilege is especially present in cases where judicial or administrative authorities are involved in the process. Documents and correspondence benefiting from attorney-client privilege can be protected and fall outside the scope of preventive measures such as search and seizures due to the right of defence.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Generally, privilege does not apply to internal workplace investigation materials as the investigation does not constitute a relationship between a lawyer and his or her client, and even less so a judicial investigation. However, if a lawyer is appointed to represent a specific party in an investigation, for example, as an investigator, the privilege may apply to materials exchanged between the lawyer and that client.
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
Finland
Finland
- at Roschier
- at Roschier
The employee under investigation has a right to have a support person present (eg, a lawyer or an employee representative) during the hearings and a right to assistance in preparing written statements.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
While the company cannot prevent an employee from engaging his or her legal counsel, there is no legal obligation for a company to allow an employee to bring his or her legal counsel to an interview, for example. If the employee expresses his or her intention not to participate in the interview session without his or her legal counsel, the company may consider explaining to the employee that such refusal to participate in the interview may constitute a breach of reasonable work-related orders and may be subject to disciplinary action. However, the company should consider the possibility of the employee claiming that he or she was not given a proper opportunity to explain the allegations during the investigation because they were prevented from obtaining legal assistance.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
Yes, the employee under investigation has a right to be accompanied by his or her legal representative during the investigation. It is also essential that the employee under investigation is informed about his or her right to have a legal representative.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Yes, the employee under investigation has a right to be accompanied or have legal representation during the investigation. Before the start of investigation proceedings, the employee under investigation must be informed about his or her right to have someone present with him or have a legal representative during the investigation.
16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?
16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?
Finland
Finland
- at Roschier
- at Roschier
A works council or a trade union does not have a role in the investigation.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
While a labour union does not have a legal right under Korean law to be informed or involved in the investigation, unless otherwise required under the relevant collective bargaining agreement, there have been instances where the labour union raised complaints that the company did not properly investigate an employee, who is a member of the labour union, particularly if the company took disciplinary action against that employee based on the findings of the investigation. The company should consider such a practical risk when conducting a workplace investigation.
If the investigation was conducted based on a claim filed by an employee to the Grievance Handling Committee (which is a sub-committee of a works council), the members of that committee have a right to be informed of the results of the investigation.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
An authorized trade union, if any, may have the right to be informed or involved in the investigation, depending on the terms of the collective bargaining agreement in place. Even in the absence of such a provision in the collective bargaining agreement, it would still be recommended to inform the trade union of the investigation as a courtesy. We do not have works councils under Turkish employment law.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
In Vietnam, the “trade union” is the only organisation solely dedicated to protecting employees’ legitimate rights and interests. Under the 2012 Labor Code, the term referring to trade unions was changed to “grassroots-level representative organisation of employees”. But the essence of this organisation remained and was later defined as “the executive committee of a grassroots trade union or the executive committee of the immediate upper-level trade union in a non-unionised company”. As such, it could be said that it was old wine in a new bottle.
As required under article 70.1 of Decree No. 145/2020/ND-CP, which serves as a guide to the Labor Code on working conditions and labour relations, when suspecting that an employee has committed a violation of labour discipline, the employer has to make a record of the violation at the time and notify the grassroots-level representative organisation of employees of which the employee is a member, or the legal representative of the employee if they are under 15 years of age. If the employer detects a violation after it has occurred, it will collect evidence to prove it. In this instance, the employer has no obligation to inform or involve the trade union or grassroots-level representative organisation of employees during the workplace investigation stage.
Also, an employee who is a member of the trade union or organisation has the right to seek assistance from this organisation and may authorise the trade union’s representative to represent and get involved in the workplace investigation.
17. What other support can employees involved in the investigation be given?
17. What other support can employees involved in the investigation be given?
Finland
Finland
- at Roschier
- at Roschier
They can request assistance, for example, from an occupational health and safety representative, a shop steward or the occupational healthcare provider.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
There could be some instances where an employee involved in an investigation may be entitled to support from the company. To give an example, there have been some cases where a whistleblower claimed they suffered workplace harassment or their employer took retaliatory action (eg, wrongful transfer) and they sought damages or other relief.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
The employees involved in the investigation should be granted their personal needs (such as refreshments or access to the bathroom), as well as translation services or transportation, if needed. A breach of these rights or needs during the process may constitute a violation of the law and adversely affect the validity of the results to be obtained from the investigation.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
It is quite stressful for an employee, whether as the victim, the subject of an investigation, or a witness, to be involved in a workplace investigation. Thus, transparency in the investigation process would alleviate the employees’ stress and anxiety. This could be achieved by providing involved and concerned employees with the timeline for different stages of the investigation and regular updates. Further, the employer can make necessary work arrangements to minimise potential interaction with other involved employees so that it would not further aggravate the conflict or situation, (eg, days off or temporary suspension of work).
19. What if the employee under investigation raises a grievance during the investigation?
19. What if the employee under investigation raises a grievance during the investigation?
Finland
Finland
- at Roschier
- at Roschier
If the nature of the grievance relates to the employer's obligations to handle such matters in general, the grievance will be investigated either separately or as a part of the ongoing investigation.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
It is not uncommon for an employee under investigation to raise grievances during or after the investigation. Below are some examples of claims an employee may raise:
- that the company reviewed the employee’s electronic data without obtaining the requisite consent;
- that witnesses or the company committed defamation in violation of the Criminal Code;
- that the employee was coerced to comply with the investigation in violation of the Criminal Code;
- that the employee was disciplined without just cause; or
- that the employee was harassed by other employees for providing information during the investigation.
The actions the company should take would vary depending on the grievance raised.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
If, during the investigation, the employee under investigation raises a grievance, the investigator will be expected to temporarily stop the investigation to assess the situation. The investigation team will evaluate whether the employee is raising a grievance as a defence mechanism or in good faith and with sincere concerns. If the subject of the grievance is related to the pending investigation, the investigation may be extended to cover this new item. Otherwise, a new investigation can be initiated by the investigation team.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
The employer should require the employee to raise any grievance under the company’s existing policy on grievance reporting, disciplinary, and investigation processes, so that it can determine if the grievance is relevant to the current investigation. The grievance can be investigated together with the ongoing investigation. It can also be dealt with separately and independently from the existing investigation.
20. What if the employee under investigation goes off sick during the investigation?
20. What if the employee under investigation goes off sick during the investigation?
Finland
Finland
- at Roschier
- at Roschier
As a general rule, sick leave does not prevent an investigation from progressing. Depending on the nature of the sickness, the employee can attend hearings and take part in the procedure. If the sickness prevents the employee from participating, the employer can put the process on hold temporarily.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
The company should review whether the employee under investigation is requesting sick leave under appropriate procedures and for a legitimate reason and may consider ways to persuade the employee to cooperate with the investigation. If the employee applies for sick leave following company policy, the company would need to grant such sick leave and suspend the investigation during the sick leave.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
The employee’s participation in the investigation is vital for a fair assessment and to ensure that the employee has been allowed to defend himself or herself against the allegations. As such, every reasonable effort must be made by the employer to adjust the investigation process so that the employee can take part in the investigation. For example, if the employee goes off sick and thus cannot attend the investigation interviews or disciplinary hearings, the investigation should be carried out as much as possible without resorting to the employee in question, by initially exhausting the other available options (such as conducting interviews or disciplinary hearings with other available witnesses). However, if the employee’s absence takes longer than is reasonably expected or the matter at hand must be dealt with urgently, the employer may consider concluding the investigation and determining the next steps based on the information at hand. In such a case, it is recommended to explain in the investigation report the reasons why the employee could not take part in the investigation process (ie, why an interview or disciplinary hearing, etc, could not have been arranged with the employee) along with supporting documentation evidencing the employer’s efforts to involve the employee in the investigation process and the employee’s excuse for not participating interviews or disciplinary hearings.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Workplace investigations do not require the presence or active cooperation of the employee under investigation. Thus, the investigation may start or continue in the employee’s absence due to illness.
If the employee’s presence is necessary for the conclusion of the investigation, the employer may invite the employee to provide information either by submitting his or her answers to a written questionnaire or attending a virtual meeting. However, the employee may not accede to the employer’s requests and proposals, especially if the employee has an illness. As a result, the employer may not be able to conclude the investigation due to the absence of the involved employee.
21. How do you handle a parallel criminal and/or regulatory investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
Finland
Finland
- at Roschier
- at Roschier
Regardless of a possible criminal investigation, the employer must run its internal workplace investigation without unnecessary delay. A workplace investigation and a criminal investigation are two separate processes and can be ongoing simultaneously, so the criminal process does not require the workplace investigation to be stayed. Thus, parallel investigations are to be considered as two separate matters. The police may only obtain evidence or material from the company or employer if strict requirements for equipment searches are met after a request for investigation has been submitted to the police.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
There is no obligation to stay the workplace investigation while the parallel criminal or regulatory investigation is being conducted. In practice, companies often proceed with, or even accelerate, the workplace investigation to find out the facts and defend themselves against the parallel criminal or regulatory investigation being conducted. The company should be careful not to engage in activities that may raise suspicions as to whether the company is impeding the government investigation or concealing or destroying evidence.
While the investigation report would typically not be privileged, the company may consider explaining to the authorities that the investigation findings are not conclusive, should the police or regulator request the internal investigation report.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
If the issues being examined during an investigation are also subject to parallel criminal or regulatory investigation, the workplace investigation will probably be stayed. This is primarily because parallel criminal or regulatory investigations would necessitate a more comprehensive examination and public bodies overseeing such investigations have a broader legal prerogative to gather evidence. It is, therefore, advisable to stay the internal investigation to not interfere with the criminal or regulatory authorities. If a prosecutor or a court requires the employer to give evidence or share certain documents, the police can compel the employer to share evidence. Regulatory bodies may also ask the employer to share evidence and the powers conferred on such regulatory bodies will be a determining factor in whether they can compel the employer.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
There are no issues with an internal workplace investigation being conducted in parallel to any criminal or regulatory investigation. In such a case, the employer should handle the workplace investigation meticulously, pay attention to all the facts and evidence, inform the authorities of the ongoing internal workplace investigation, and ensure that it complies with all applicable legal requirements or directions made by the relevant authorities concurrently. Also, the employer should not take any steps that interfere with, hinder, or obstruct the parallel investigations.
22. What must the employee under investigation be told about the outcome of an investigation?
22. What must the employee under investigation be told about the outcome of an investigation?
Finland
Finland
- at Roschier
- at Roschier
The employer's conclusions from the investigation.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
There is no legal obligation for a company to disclose the outcome of an investigation to the employee who was subject to it. Having said that, if the company wishes to take disciplinary action against the employee based on the outcome of an investigation, it is required to disclose sufficient detail on the employee’s wrongdoing that is subject to disciplinary action. This information should be provided to the employee before the disciplinary action committee (DAC) hearing to provide the employee with sufficient time to present and defend his or her position during the DAC hearing.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
In general, the employee under investigation should be adequately informed about the allegations and findings to be able to defend him or herself. If no legal action will be taken against the employee under investigation as a result of the investigation, the employee may be notified regarding the findings and the outcome of the investigation. If the employee will be subject to a legal or administrative action (ie, warning, reprimand, or termination of employment), the formal requirements stemming from the Labour Law will need to be followed.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
It is recommended that the employer informs the employee under investigation of the outcome and provides information on a need-to-know basis. Consequently, the employer has the discretion to proceed with any labour disciplinary procedure or actions against the employee based on the outcome of the investigation.
24. What next steps are available to the employer?
24. What next steps are available to the employer?
Finland
Finland
- at Roschier
- at Roschier
The employer decides whether misconduct has taken place or not. Depending on the case, the employer may recommend a workplace conciliation in which the parties try to find a solution that can be accepted by both sides. The employer may choose to give an oral reprimand or a written warning. If the legal conditions are met, the employer may also terminate the employment agreement.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
After completing an investigation, the company may consider the following measures, among others:
- taking disciplinary action against the relevant employees;
- taking legal action (eg, criminal action, civil action) against the relevant employees; and
- taking appropriate remedial measures (eg, strengthening existing policies and establishing new policies, and conducting training).
The company may also consider making a voluntary report to the relevant authorities as discussed in question 25.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
The employer may take various legal remedies against the employee whose infringement is discovered as a result of the internal investigation. Depending on the outcome of the investigation, the employer:
- may provide the employee with a written warning requesting him or her not to repeat the same conduct;
- terminate the employment relationship based on either just cause, without paying any compensation immediately, or valid reason by observing statutory notice periods or making payment in lieu of notice and paying severance compensation if applicable; or
- not take any action if the investigation concludes that no fault is attributable to the employee.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
After the completion of the investigation, the employer may:
- take the appropriate labour disciplinary action against the employee;
- proceed with legal action against the employee (eg, reporting the criminal violations of the employee to the proper authority or filing a civil lawsuit against the employee before the court); or
- adopting preventive or remedial measures on how to avoid these violations and to mitigate the damage to the company (eg, reviewing internal policies and conducting employee training).
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
Finland
Finland
- at Roschier
- at Roschier
In general, investigation materials, including findings, that includes personal data should only be processed by the personnel of the organisation who are responsible for internal investigations. However, it may in some situations be required by applicable legislation that findings are disclosed to competent authorities for the performance of their duties, such as conducting investigations in connection with malpractice and violations of the law.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
There is generally no obligation to report violations to the Korean authorities, subject to limited exceptions (eg, financial institutions are required to report certain types of wrongdoing to the financial regulator; if there was a leak of an industrial technology developed through a national research and development project or a national core technology, this leak should be reported to the Ministry of Trade, Industry and Energy and the National Intelligence Service). However, even in the absence of a self-reporting obligation, the company may consider strategically deciding to make a voluntary report. For example, there have been instances where the police or prosecutors’ investigations were conducted in a more limited manner where the company filed a voluntary report and cooperated with the investigation. Also, for certain types of violations (eg, cartel activities), self-reporting to the relevant authority may entitle the company to leniency provided under the law.
In certain instances, the company may also consider reporting violations to the relevant foreign authorities, in addition to, or instead of, the Korean authorities. For example, if the company found potential violations of US law such as sanctions law or the Foreign Corrupt Practice Act, the company may want to self-report these violations to the relevant authorities such as the Office of Foreign Assets Control, or the US Department of Justice.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
Investigation reports may be disclosed in potential lawsuits or judicial proceedings. Therefore, the investigation report must demonstrate that a detailed and objective investigation has been carried out. Courts may also request that the interview records be disclosed to them, failing which, the courts may resort to an adverse inference in civil proceedings. Criminal courts can also ask the interview records to be disclosed if this would be necessary for reaching the truth. Failure to disclose may entail criminal responsibility under certain conditions.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Generally, the employer does not have to actively disclose the findings of a workplace investigation to any party.
Notwithstanding this, the employer should be aware of certain statutory disclosure requirements that may apply as a result of the matters revealed during the workplace investigation, if the said investigation reveals any knowledge or suspicion of an indictable offence that has been committed.
Interview records should be kept private unless disclosure is required by the authorities.
26. How long should the outcome of the investigation remain on the employee’s record?
26. How long should the outcome of the investigation remain on the employee’s record?
Finland
Finland
- at Roschier
- at Roschier
Please see question 7. The outcome of the investigation involving personal data may be retained only for as long as is necessary considering the purposes of the processing. In general, the retention of investigation-related data may be necessary while the investigation is still ongoing and even then the requirements of data minimization and accuracy should be considered. The data concerning the outcome of an investigation should be registered to the employee's record merely to the extent necessary in light of the employment relationship or potential disciplinary measures. In this respect, the applicable retention time depends on labour law-related rights and limitations, considering eg, the applicable periods for filing a suit.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
There is no legal requirement on how long the records of the investigation (eg disciplinary action) should be maintained by the company. Many companies maintain a record of disciplinary action throughout the employment period.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
There is no provision in the legislation setting forth a specific duration for keeping the outcome of the investigation findings in personnel files. However, based on general principles, the outcome of the investigation can remain on the employee’s personnel files as long as the employer has a lawful interest in such processing without unnecessarily harming the privacy rights of the employee.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Vietnamese law does not provide for a period during which the outcome of the investigation should remain on the employee’s records and files. However, this will depend on the employer’s record-retention policies, which must comply with applicable data protection laws.
27. What legal exposure could the employer face for errors during the investigation?
27. What legal exposure could the employer face for errors during the investigation?
Finland
Finland
- at Roschier
- at Roschier
There are no regulations regarding the actual investigation process. Therefore, the employer cannot be accused of procedural errors as such. However, once the matter has been adequately investigated, the employer must decide whether or not misconduct has taken place. If the employer considers that misconduct has taken place, the employer must take adequate measures for remedying the situation. Failure to adequately conduct the investigation could result in criminal sanctions being imposed on the employer as an organisation or the employer’s representative, or damages.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
As mentioned in question 19, employees may potentially raise claims, such as that the company violated data privacy laws in reviewing employee data, committed defamation, coerced the employee to comply with the investigation, and that witnesses or the company committed defamation in violation of the Criminal Code or disciplined the employee without just cause.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
The nature of legal exposure is very much dependent on the legal action the employer has taken after the investigation. The employer may be subject to a wrongful termination lawsuit to be filed by the employee, which may result in the payment of compensation to the employee of between eight and 12 months’ salary, if the court concludes that the termination is wrongful. This may also include monetary and moral damages claims. If no termination has taken place, the employee may terminate his or her employment with just cause if the employer has erred in its neutral fact-finding mission and this affects the employee. The employee may also file a criminal complaint to the extent that the investigation findings incriminate the employee in error.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
The employer may be exposed to legal action for its failure to conduct the investigation properly, such as a lawsuit for labour disputes or sanctions for its failure to protect personal data as required under personal data protection regulations. For instance, if there were errors during the investigation which led to erroneous results for the investigation and consequently, the employee was dismissed, the employee may file a claim for illegal dismissal against the employer.