Once the complaints have been received through the appropriate channel or even once the company becomes aware of potential violations by other means, it is time to conduct internal investigations to ascertain whether there are grounds for such complaints. If so, the organization has to take action according to the legislation and its internal rules.
The organization must have in place a documented policy approved by the Board. This policy must contain comprehensive rules for internal investigation procedures. The rules must address who should conduct the investigations, principles and deadlines, how information shall be collected, treated, and analyzed, deposition of the accused, witnesses interviewing processes, among other aspects.
In a concrete case, a company once established the maximum deadline for investigating reports could not exceed 45 calendar days counted from the moment the complaint was registered. The policy also set who would be responsible for conducting the investigations and what should happen when an investigation did not end within the deadline.
Naturally, more straightforward situations can be quickly investigated and more complicated ones that may require additional time. Still, it is essential to have a deadline in place to conclude investigations, even if it may be subject to an extension eventually.
The setting of deadlines for the conclusion of investigations sets a tone of urgency and diligence. It keeps any complaints received in the list of priorities of the people conducting the investigations, especially if they are not entirely dedicated to compliance activities and are only enforcers of compliance principles, with additional roles in the company.
Internal investigations must be kept confidential for several reasons. The first is that confidentiality increases the possibility of success of the investigation, preventing evidence from being destroyed by third parties. Another good reason is to avoid discrimination against the accused, who is presumed innocent until the investigations are concluded. This type of situation may create irreparable harm and ultimately lead to legal actions for damages.
As is emphasized by the North American literature, an investigation of this sort involves quite a few people: the whistleblower, the accused, witnesses, and other people who can eventually provide valuable information to the inquiry.
In addition to the documentary analysis, which should ideally receive priority attention from the investigators, interviews must also be conducted. These interviews must eventually be followed by an interview with the accused, if necessary. It is worth mentioning that, in Brazil, unlike other countries, the accused cannot be legally forced to give a statement under oath.
Once the team concludes the investigation and produces a report, the Disciplinary Board must step in to review the case files and then decide whether disciplinary measures should be applied. These measures might include: oral warning, written warning, termination with or without just cause, and, in extreme cases, the opening of a police investigation – should the violation also constitute a crime.
Edmo Colnaghi Neves is a lawyer and a Corporate Compliance Expert, he is a partner at Colnaghi Neves Consultoria Empresarial, and the author of the book Doing Compliance in Brazil, published by Editora B18.
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