by Javier E. Patrón
Marval, O’ Farrell & Mairal
When a company decides to implement an internal investigation policy, the first action to be executed is to inform the employees of the new policy, and to notify its content in writing.
The Argentinean Labour Contract Law (“LCL”) does not provide a specific procedure for internal investigations. The length of an investigation shall be reasonable, considering its importance and the facts and events investigated. Nevertheless, investigations should be as expedite as possible, bearing in mind that disciplinary actions may result from the aforesaid investigations, and these types of sanctions should be imposed as soon as possible after any fault is discovered.
The policy does not need to be registered with any public official or authority. However, regarding personal controls and searches, the LCL states that the systems by which such controls are performed must be informed to the relevant administrative authority and shall never affect the dignity of the worker.
The employer is entitled to search and monitor its own property. There is no unanimous interpretation of whether e-mail accounts and computers given to employees are considered as private correspondence or not. The right to secret correspondence is guaranteed by our Constitution and a violation thereof entails both criminal and civil liability. Consequently, monitoring of any employees’ communications must be performed under a strict confidentiality basis by the persons involved in the internal investigations. Furthermore, an internal policy authorizing the employer to perform such monitoring regularly or under an investigation is recommendable.
In order for any findings to be enforceable in a hypothetical subsequent claim, all witness declarations and any other evidence should be notarized and duly recorded.
In conclusion, internal investigations are not specifically legislated in Argentinean law, though it is important to mention that any procedure must be executed having in consideration that any kind of discrimination or adverse effect on the employees’ dignity or right of defence could be objected.