BRAZIL Law and Practice Contributed by: Patricia Barboza, Alinne Gordilho and Amanda Costa, CGM Advogados
There are no adverse legal consequences for employ - ers who adopt measures to protect any person that contributes to the investigation. Conversely, failure to provide reasonable protection in cases of serious complaints could expose the employer to significant risks. These may include labour lawsuits filed by the individual seeking compensation for pain and suf - fering, supported by evidence of harm caused by the employer’s failure to take appropriate protective measures. 5. Procedural Requirements and Proof 5.1 Requirements There are no statutory procedural requirements for conducting HR internal investigations, and compa - nies typically establish their own procedures through internal policies. For guidance on best practices, refer to section 3. Interviews and Fact-Finding . However, failure to adhere to voluntary guarantees or best prac - tices may weaken the company’s defence if the inves - tigation or any event related to it is challenged in court by any person involved in the investigation. Although uncommon, collective bargaining agree - ments applicable to employees’ contracts may include specific rules governing HR internal investigations. In such cases, non-compliance with these obligations can result in penalties for breaching the terms of the collective bargaining agreement. 5.2 Internal Regulations Because there are no statutory procedural require - ments that must be put in place in the investigation, procedural requirements, if any, will derive from the employer’s internal regulations. Failure to comply with such voluntary internal regulations can weaken the company’s defence if the investigation or any event related to it is challenged in court by any person involved in the investigation. 5.3 Burden and Degree of Proof Rules on burden of proof do not apply to HR internal investigations since it is a more inquisitive process than an adversarial one.
However, in the case of a legal dispute arising from the result of the investigation and disciplinary measures applied by the company, the company will have the burden of proof to demonstrate the validity of meas - ures taken against the plaintiff. Usually, terminations for cause resulting from an investigation trigger the filing of labour lawsuits against the employer. There is no statutory degree of proof, but since the employer will have the burden of evidence to support its decisions, it must be confident that the evidence is strong enough to persuade a judge. Usually, a pre - ponderance of evidence is sufficient in employment- related matters, but ideally the evidence should be beyond a reasonable doubt, especially if the discipli - nary measure involves terminating the employment agreement for cause based on allegations of dishon - esty or sexual harassment. 6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation There are no rules governing when an HR internal investigation may be ended. However, it is recom - mended that the investigation has a reasonable and justified duration because, as a rule, possible disci - plinary measures, including a termination of employ - ment agreement for cause of the respondent and oth - ers involved, should be processed by the company immediately after the company becomes aware of the employees’ misconduct or concludes the investiga - tion. Taking an unreasonable length of time to conclu - sion the investigation can harm the company’s ability to terminate the employment agreement for cause, even if the misconduct has been established. 6.2 Procedure for Ending an HR Internal Investigation There are no rules governing procedures that must be followed once the decision to end an HR internal investigation is made. Normally, and unless the internal policy governs oth - erwise, the investigation ends with the drafting and
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