Question 117: Which steps in an internal investigation serving as a basis for handling labour discipline violations carry the highest legal risk for Employers? Is there any way to minimise that legal risk?

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The applicable labour law does not govern the procedure for conducting an internal investigation when Employers need to investigate or verify Employees’ acts before deciding on a disciplinary action. Therefore, depending on the operations of each enterprise, Employers will build their own procedures for conducting an internal investigation, provided that these procedures are not against other laws.

Pursuant to Article 123.1(a) of the Labor Code, Employers are obliged to provide the evidence of Employees’ violations before imposing disciplinary actions. So, after all, the procedure for conducting an internal investigation is aimed at collecting evidence to prove that the Employees’ acts have violated the ILRs, 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 investigation activities.

In practice, in order to ensure the evidence are true and of high legal validity in case of disputes, Employers may work with the concerned Employees and/or the persons who have witnessed/known of 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 collection. In addition, to strengthen the validity of the collected evidence, Employers should consider using the bailiff services. The bailiff will make minutes of the working sessions between Employers and the concerned Employees and/or document the fact that the concerned Employees and the persons who witnessed/knew of the case have submitted their declarations on the case to Employers as mentioned above.