by Paulina Miranda
Carey y Cía. Ltda.
In general terms, it is highly doubtful that employers in Chile can legally conduct internal investigations at the workplaces.
In Chile there is no general legal regulation on the internal investigations that may be conducted by the employer at the workplace. We found few exceptions where an employer is authorized by law to carry out an investigation.
One case is in the event of a work accident occurred in the facilities. In this case, the employer may begin an investigation in order to determine the causes of the work accident, but such investigation should not interfere with the investigation carried out by the Safety Committee.
Another situation where the employer is allowed to investigate is in cases of sexual harassment. Where there has been an accusation of sexual harassment, the employer has two alternatives: either it conducts an internal investigation, or the case is remitted to the Labour Authority who will then investigate. If the employer chooses to investigate, it shall follow a certain procedure described in the Internal Regulations of the company following the guidelines set by the law for these cases.
In our opinion it is doubtful that the employer may legally conduct internal investigations for clarifying other situations. Although the employer has the legal right to manage and organize its business, such right is limited by the employer’s obligation to respect the constitutional rights of the employees, particularly if the intimacy, private life and honour of the employees may be affected. On the other hand, the Labour Board has ruled that any control or surveillance carried out by the employer should not have a pre-police or investigatory intent, but only preventive and impersonal.
Since investigations are conducted with the objective to clarify specific situations, in our opinion an internal investigation carried out by the employer may be construed as a violation of the constitutional rights of the employees.