SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
preventable harms to employees, including mental distress. Additionally, failure to take reasonable precautions may result in unnecessary harm and expose the employer to risk, so it can be prudent to take reason - able measures to prevent foreseeable harm to other employees. For example, when a high-level executive is accused of harassment, there is a risk that the executive might take actions that could be perceived as: • retaliation or harassment against a witness; or • undermine the apparent fairness of the investiga - tion. Depending on the circumstances, the employer might take actions such as giving an appropriate explana - tion and instruction to the executive, removing the reporter from the executive’s reporting line, or taking other appropriate measures to protect other employ - ees from any foreseeable harm. 5. Procedural Requirements and Proof 5.1 Requirements HR internal investigations do not require specific pro - cedural guarantees to be in place. The procedural rights that apply in criminal investigations, such as: • the right to be informed of the charges; • the right to remain silent; and • the right to legal assistance (and the right to exclude evidence obtained in violation of these rights), do not apply in HR internal investigations. However, if an investigation appears biased or pro - cedurally unfair, it can weaken the effectiveness of evidence derived from the investigation in any legal dispute, such as a legal challenge against any dis - ciplinary action taken by the employer. An appar - ently unfair or biased process may also expose the employer to legal claims, such as harassment claims from the subject of the investigation. As discussed, in
workplace harassment investigations, it is a statutory requirement to conduct an “objective” investigation. 5.2 Internal Regulations An employer may have internal policies or regulations governing internal investigations, including procedural requirements and protections for the respondent, such as a right to be notified or to receive specific informa - tion about the accusations. Employers also frequently have rules regarding disciplinary procedures, such as requirements to constitute a disciplinary committee and to hold a hearing where the accused employee can present an explanation. Any such rules must be followed, or it may damage the legal case for any subsequent discipline. If the employer fails to follow its established internal proce - dures during the investigation or subsequent discipli - nary procedures, a court or labour tribunal may find that the process was defective and that any discipli - nary action is void. 5.3 Burden and Degree of Proof The employer bears the burden of proof that it had just cause for any disciplinary action or other adverse personnel action. In a civil legal dispute between employer and employee, such as a lawsuit to recover misappropriated funds, the plaintiff has the burden of proof. Regarding the standard of proof, according to Supreme Court precedent, the degree of evidence required to meet this burden is proof to a “high probability”. In theory, this is a lower standard than in criminal trials. However, in practice, especially in termination cases, the courts and labour tribunals often hold employ - ers to a very high standard of evidence, regarded by some as almost equivalent to the “beyond a reason - able doubt” standard required in criminal trials. 6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation There are no specific legal rules on when an HR inter - nal investigation should be completed, although the
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