SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
6.8 Disciplinary Measures If allegations are substantiated, an employer’s poli - cies or internal regulations should serve as the primary basis for any disciplinary measures, with considera - tion given to relevant precedents. In the absence of specific requirements under a com - pany’s internal regulations, a generally fair and objec - tive process should be followed in which an employee subject to discipline is given a fair chance to defend against the allegations. Common forms of disciplinary action include repri - mands, pay cuts, unpaid suspensions and dismissal. A disciplinary pay cut is strictly limited by statute to a very small amount, so it is typically seen as a relatively weak disciplinary action compared to unpaid suspen - sion or dismissal, whereas disciplinary dismissal is seen as a measure of last resort, requiring very egre - gious or persistent misconduct. 6.9 Other Measures Depending on the findings of the investigation, an employer may take various corrective actions beyond discipline. For example, an employer may improve internal controls to prevent similar violations, provide education to prevent similar acts, provide coaching/ training and more. In general, Korean data privacy laws require informed consent (subject to specific formal requirements) for the collection, processing, and transfer of personal information. Even without specific consent to col - lect personal data in the course of an investigation, a general investigation may be possible to some extent based on the general data privacy consent an employ - ee would commonly provide when first hired. How - ever, it may be prudent to obtain a separate, specific consent related to the investigation when seeking to proceed more conservatively. 7. Data Protection 7.1 Collecting Personal Data There are certain exceptions where personal data can be collected and used without consent, such as in exi -
require disclosure of the specifics of the investigation findings. Employers should not disclose sensitive information related to the investigation carelessly. In workplace harassment and sexual harassment investigations, there are specific obligations to protect the confiden - tiality of information derived from the investigation. There are general risks associated with disclosing excessive detail about the investigation. For example, there may be a risk of data privacy violations, and there can also be a risk of defamation claims because even true statements can be defamatory under Korean law if they unreasonably damage a person’s reputation. 6.6 Communications to Authorities In general, there is no obligation to report the result of an HR internal investigation to the authorities. However, it may be required in two instances, as out - lined below. • Where the labour authorities respond to a com - plaint that the company has failed to appropriately handle a complaint of workplace harassment or sexual harassment, the company will be expected to share a report showing its conduct of an ade - quate investigation. • Where the company is subject to special regula - tions (eg, a financial institution), its regulator may expect to receive a report of the company’s inves - tigation. 6.7 Other Communications There are no specific statutory rules requiring any particular communications about the conclusion of an HR internal investigation to other parties, such as witnesses or co-workers. Typically, it would be imprudent to disclose any spe - cifics regarding the investigation without the consent of the concerned parties or a justifiable need. There is potential legal liability under Korean data privacy laws for improper disclosure of personal information, and there is also a risk of defamation claims, even for disclosures of true information.
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