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Juridical Analysis on Termination of Employment by Employee's Willingness Under Constructive Dismissal Framework

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Juridical Analysis on Termination of Employment by Employee's Willingness Under Constructive Dismissal Framework JURIDICAL ANALYSIS ON TERMINATION OF EMPLOYMENT BY EMPLOYEE’S WILLINGNESS UNDER CONSTRUCTIVE DISMISSAL FRAMEWORK LAW (CASE STUDY ON CASE NO. 144/PHI/G/2013/PN.JKT.PST Muhamad Ghaney Kadri, Melania Kiswandari International Undergraduate Program Faculty of Law, Universitas Indonesia E-Mail: [email protected] Abstract This undergraduate thesis aims to understand the practice termination of employment by employee’s willingness or in another word is knows by the term of Constructive Dismissal claim, furthermore this thesis is used to provide a picture of the practice in Indonesia under the Law No. 13 Year 2003. In addition, there is also the discussion concerning a termination of employment claim which the Case No. 144/PHI/G/2013/PN.JKT.PST. in which this claim of termination of employment were regarded as a Constructive Dismissal claim with the basis of such claim using Article 169 paragraph (1) of Law No. 13 Year 2003 regarding Employment where this will be used to give a picture of the implementation of the Constructive Dismissal principle in Indonesia. The result of this research concluded that the practice and implementation of the Constructive Dismissal claim also existed in Indonesia and that the Law No. 13 Year 2003 is considered to be insufficient for usage in deciding cases of Constructive Dismissal claims as can be seen in the case of Central Jakarta Industrial Relations Court No. 144/PHI/6/2013/PN.JKT.PST. in which it is considered as a Constructive Dismissal claim. Analisis Yuridis Terhadap Pemutusan Hubungan Kerja Atas Keinginan Pekerja dibawah kerangka kerja Hukum Constructive Dismissal (Analisis Kasus Putusan Pengadilan Hubungan Industrial Jakarta Pusat No. 144/PHI/G/2013/PN.JKT.PST.) Abstrak Skripsi ini bertujuan untuk memahami praktek dalam pemutusan hubungan kerja atas keinginan pekerja atau dalam kata lain dapat dikenal dengan sebutan Constructive Dismissal claim, selanjutnya skripsi ini dapat digunakan untuk memberikan gambaran mengenai praktek Constructive Dismissal di Indonesia dibawah UU No. 13 Tahun 2003 mengenai Ketenagakerjaan. Sebagai tambahan, ada juga diskusi mengenai kasus tuntutan pemutusan hubungan kerja yang berupa kasus No. 144/PHI/G/2013/PN.JKT.PST. dimana dalam tuntutan pemutusan hubungan kerja tersebut dianggap sebagai tuntutan Constructive Dismissal dengan dasar dari tuntutan tersebut menggunakan Pasal 169 paragraf (1) dari UU No. 13 Tahun 2003 mengenai Ketenagakerjaan dimana kasus ini akan digunakan sebagai gambaran implementasi prinsip Constructive Dismissal di Indonesia. Hasil dari riset ini menyimpulkan bahwa praktek dan implementasi tuntutan Constructive Dismissal juga ada di Indonesia dan UU No. 13 Tahun 2003 dianggap tidak memadai untuk penggunaan pemutusan dalam kasus tuntutan Constructive Dismissal seperti yang dapat dilihat dari kasus Pengadilan Hubungan Industrial Jakarta Pusat No. 144/PHI/G/2013/PN.JKT.PST. dimana kasus ini dianggap sebagai kasus tuntutan Constructive Dismissal. Keywords : Labor Law; Manpower; Termination of Employment; Constructive Dismissal; Dismissal Law. Introduction In everyday circumstances, a Termination of employment is a state that is labor related and at all times concerns about the termination or dismissal of a person from his/her workplace. Termination of employment itself in a broad outline can be done by either the employers, the workers or the current state of the contract despite what often happens is that the employer is the one who mostly did the termination of employment. Termination of employment has many theories and definitions which are also being backed-up by various principles and legal doctrines Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 by scholars which is concerning labors which sometimes were contained in laws and regulations as well as books regarding labors and labor law. Although there are many books and laws and regulations that expressly define and explain about termination of employment, there are no standards or unified definitions that explain what a termination of employment itself although it is agreed that a termination of employment means a state that dismiss the industrial and legal relations between the employees and the employers themselves. In Indonesia itself, currently a termination of employment is regulated under Law No. 13 Year 2003 concerning Manpower and further regulated under Law No. 2 Year 2004 Industrial Relation Dispute Settlement. Law No 13 Year 2003 concerning Manpower addressed many fundamentals of labor issues on the conduct of Termination of Employment, various causes of termination of employment and its exceptions , and lastly the general requirements on termination of employment procedures and the legal impact of termination of employment, particularly concerning the guidelines of the termination of employment and also the calculation of the severance package that is received by the employee. The law defines termination of employment as an ending of an employment relationship which is caused by a certain matter which also results to the ending of the rights and obligations between the employee with his/her employer, this is stated in Article 1 paragraph (25) of the law. In this law, the law does not restrict or specify that the termination of employment to a wrongful action or actions that is considered harmful to the employer but also opens its definition to end of contractual working agreement or employment period, the broad definition gives a broad sense of termination of employment and also an ease of understanding on the definition of termination of employment according to Law No. 13 Year 2003. Furthermore there is the Law No. 2 Year 2004 concerning Settlement of Industrial Disputes. This regulation addressed the termination of employment as one type of labor dispute termination of employment as an ending of an industrial relation unilaterally, in this law, it also does not specifically define the criteria or requirement for a termination of employment to happen, it defines the termination of employment also in a broad sense which gives flexibility in the application of such law. In Indonesia, although there is already regulations that regulate about termination of employment in which it were largely stipulated under Law No. 13 Year 2003, there has been difficulties in the implementation, especially in the implementation of the law itself with the practice of termination of employment by the employee’s willingness, or more commonly known as Constructive Dismissal. As can be seen, the writer will discuss concerning termination of employment by the employee’s willingness by discussing the current law of Indonesia, Law No. 13 Year 2003 concerning Manpower and will be compared with the United Kingdom’s Employment Rights Act of 1996. There is also the case of the Industrial Relation Court Case No. 144/PHI/G/2013/PN.JKT.PST in which an employee filed his own termination of employment to the court because of the wrongful act of the employer to the employee, in which this case corresponds with the practice of Constructive Dismissal. This case shall be used as a reference on the usage of the Law No. 13 Year 2003 concerning Manpower for cases that are yet still vaguely regulated and also a reference on the application of Constructive Dismissal practice and its laws in Indonesia, which will be compared to the United Kingdom’s Employment Rights Act of 1996. There are several legal question that will be discussed and presented in this discussion : • How is the regulations of termination of employment in Indonesia under Constructive Dismissal Framework? Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 • How is the implementation of termination of employment under the Constructive Dismissal Framework in Indonesia? Research Methodology The forms of research that will be held is a juridical normative research, in which the research will be held by conducting literary research contained in the Indonesian Labor Law as well as other materials that can be used in providing more better argumentation for the research. Furthermore, this research will also be done in an empirical way, where this research will include several expert interview regarding labor and labor law matters. The types of data that will be used are secondary data that encompasses the primary laws of research. This includes books, laws, journals regarding labors and labor law as well as tertiary data such as dictionary, internet and articles. Research and scientific assessment in the field of law will be conducted to acquire legal knowledge, thus the method used in this thesis will be Descriptive-Analytical research. The forms of report will be in an analysis structure based on the primary, secondary and tertiary data provided and related to labor law. Result After several research done, it is understandable that there is difference between the terms of Termination of Employment with Dismissal in which both were used respectively in Indonesia and the United Kingdom. Under the Indonesian Law No. 13 Year 2003, a termination of employment is considered as the ending of an employment relationship which is caused by a certain matter which also results to the ending of the rights and obligations between the employee with his/her employer. Under the Employment Rights Act of 1996, a dismissal is considered as “Where the employers terminate the contract with or without notice”. In Indonesia itself, a Constructive Dismissal is currently impliedly regulated under Article 169 of Law No. 13 Year 2003 concerning Manpower in which it stated as “Pekerja/buruh dapat mengajukan permohonan pemutusan hubungan kerja kepada lembaga penyelesaian perselisihan hubungan industrial dalam hal pengusaha melakukan perbuatan tidak memenuhi kewajiban sebagai pengusaha”, it is considered impliedly regulated as there are no mentioning of Constructive Dismissal in the law and also that the Constructive Dismissal itself is not acknowledged by legal scholars as well as the law itself as a practice, therefore a case of termination of employment related to Constructive Dismissal could use Article 169 of Law No. 13 Year 2003 as well as other articles related to termination of employment contained in Law No.
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