SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
• the matters are complex or require expertise in certain legal areas; or • when internal dynamics could raise questions about the objectivity of internal investigators. Foreign companies also often retain local counsel to assist with investigations, due to language issues and a lack of familiarity with specific Korean legal and cul - tural issues. 1.5 Obligation to Carry Out an HR Internal Investigation Workplace harassment and sexual harassment must be investigated if there is a complaint or the company otherwise becomes aware of their occurrence. Otherwise, it is generally up to an employer to decide whether to conduct an HR internal investigation. However, there may be industry-specific regulations requiring investigations under certain circumstances, such as for financial institutions. 1.6 Prohibition on Carrying Out an HR Internal Investigation There are no legal requirements prohibiting an inter - nal investigation, but there may be circumstances in which it is more prudent to limit or refrain from an internal investigation. For example, in certain cases where a reporter wishes to stop any further investigation even though there are grounds to believe misconduct occurred, it may be prudent to refrain from further investigation to avoid potential harm to the reporter. It is a delicate and case- specific matter, without clear rules or precedents. In cases of workplace or sexual harassment, it is gener - ally recommended to initiate an investigation, even if the basis is relatively thin, to be on the safe side, given the specific legal requirement to promptly investigate such matters. 1.7 Other Cases In deciding whether to investigate cases where there is no legal obligation, employers typically consider the credibility and seriousness of the accusations and the potential harm that may result from failing to deter - mine the facts. For example, in cases involving coer - cive behaviour towards vendors in relation to contract
renewals – eg, an employee who is responsible for contract renewal is alleged to have requested pay - ments or favours from the vendor – the employer may be at risk of claims from the vendor, under Korea’s fair trade/antitrust laws. Employers would also consider the potential costs of an investigation and the disruption it could create in the workplace. For instance, in cases involving poten - tial corporate card misuse, a robust investigation may disrupt the sales department. Employers would gen - erally evaluate ways to effectively investigate while minimising disruption to the organisation. For exam - ple, a leniency programme could be considered to alleviate the potential panic and costs associated with any investigation. Employers may also have internal rules and regula - tions requiring certain kinds of investigations under certain circumstances. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent Statutorily, neither the reporter nor the respondent has an explicit right to be informed of whether and when an HR internal investigation will be initiated. However, if a company’s internal regulations require that the reporter be informed, those regulations should be followed. A major reason for this is that failure to follow internal rules and policies regarding investiga - tions can harm the employer’s legal basis for taking disciplinary action later on. In practice, it is often prudent to inform the reporter that the matter is under investigation to reduce the risk that the reporter will go to outside authorities before the company has a chance to investigate and take appropriate action. Even if the reporter is not informed immediately that an investigation has been initiated, they will likely soon become aware, as they are often the first (or among the first) employees interviewed, especially in cases of workplace or sexual harassment.
338 CHAMBERS.COM
Powered by FlippingBook