JAPAN Law and Practice Contributed by: Hiroaki Matsui, Yukitsuna Takekoshi, Mari Ueki and Satoru Makino, AI-EI Law Firm
6.4 Reports There are no specific requirements regarding what information should be included in the investigation report. Typically, the investigation report includes: • the investigation’s subject, scope, measures, restrictions and limitations; • the results of the fact-finding; • the legal analysis, rationale and grounds for the matter; and • corrective and preventative measures. As the purpose of the investigation is to serve and support managerial decisions and business judge - ments, all important matters (including the next steps) found by the investigation team will be broadly includ - ed in the report. 6.5 Information The relevant parties do not have the right to receive information regarding the outcome of an HR internal investigation. However, according to the government circular notice relating to the Whistle-Blower Protec - tion Act, the employer will usually report in brief the results and the corrective measures to the whistle- blower promptly, taking into consideration the privacy protection of the relevant parties. In addition, if the employer wishes to proceed with the investigation based on the “Third-Party Committee Guidelines for the Corporate Scandal”, the investigation report submitted by the third-party committee should be promptly disclosed to the relevant stakeholders con - cerned with the misconduct. 6.6 Communications to Authorities Employers are not required to report the conclusion of an HR internal investigation to the authorities. How - ever, the employer must report certain types of per - sonal information leakage to the Personal Information Protection Commission (see 2.2 Communication to Authorities ). Furthermore, if the employer finds a vio - lation of antitrust laws, the employer may consider filing a “leniency” report with the Japan Fair Trade Commission in order to mitigate the expected sanc - tion. In addition, the employer may voluntarily report to the authorities (eg, the regulatory authorities, the police or the public prosecutor’s office), if such report will be advantageous and beneficial.
It is common practice to prepare and organise a detailed report and evidence before filing it; however, the employer should take into account the deadline and the existence of other reporters at the same time. 6.7 Other Communications There are no other parties that must be informed of the conclusion of an HR internal investigation. If the conclusion of an HR internal investigation is impor - tant for managerial decisions, the investigation team usually communicates the conclusion to the relevant managers, including the representative director or the board of directors. However, in the case of a whis - tle-blowing report, the team should be careful not to share information concerning the whistle-blower out - side the team. 6.8 Disciplinary Measures Based on the conclusion of the investigation, the employer may consider taking disciplinary action or HR action against the relevant party who is in violation of the law or the internal rules. However, the employer must stipulate in advance the nature and the grounds for the disciplinary action (including dismissal) in the employment contract or the Work Rules, and the employer should comply with these provisions. Before any disciplinary action is taken, it is common practice to hold a hearing to allow the subject of the action to provide their excuse or explanation. The employee subject to the disciplinary action and the dismissal may contest its validity through litigation or a labour tribunal procedure, and the judge may invali - date the company’s action if they find an abuse of rights (Articles 15 and 16 of the Labour Contracts Act). 6.9 Other Measures There are no specific standards for employer action following an HR internal investigation. However, if the allegations of the reporter or the victim are at least partially true, the employer usually warns the perpe - trator to refrain from engaging in similar conduct and emphasises that any retaliatory action against the vic - tim or whistle-blower will not be tolerated. In addition, if the employer believes that a transfer, relocation or demotion is necessary or beneficial, the employer will take such HR action internally.
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