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. 13 Year 2003. This is different with the term of Constructive Dismissal that existed in the United Kingdom itself. Under the United Kingdom’s understanding, a Constructive dismissal principle is known as the third dismissal situation in which according to Pitt’s book it is known as : “the employee terminates the contract … (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct” As such, it can be considered that a resignation of an employee is construed as a dismissal. There is a big differences between resignation and constructive dismissal itself, in a way a resignation is a voluntary termination of employment by the employee with reasons which are not significant for the employee themselves while a constructive dismissal is a termination of employment by the employee because of the act or conduct of the employer to the employee which jeopardizes the employee’s wellness, health or safety which becomes the reason for such termination of employment. A constructive dismissal principle can make an employee to use such principle for
Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 matters concerning unilateral modification or breach of contract conducted by the employer which makes such principle to be very powerful for the employee to be used because of its capacity to challenge conducts of the employer. Discrimination, attempts or conducts that were issued to the employees which could threaten or jeopardize the employee’s safety, wellness and health and even conduct of criminal or illegal action were the main issue in the enactment of constructive dismissal principle in that it makes the employee have a power to challenge such issues and also give the employee a way to have their rights to be enforced by themselves because of the conduct of the employer which is very much threatens the life of the employees itself. The concept of constructive dismissal is complex as one can deemed such claim as an unfair dismissal or wrongful dismissal claim while others deemed such as a constructive dismissal claim, an employee who is voluntarily leaves its workplace and employment is considered as not a ‘dismissal’ while if the employee is deemed to be “entitled to terminate such employment without notice by reason of the employer’s conduct” then it is considered that such termination is a ‘dismissal’ regardless of whether the employee, in its conduct of termination of employment gave a notice to the employer or not. This gives a difference and a comparison between the concept of Constructive Dismissal in Indonesia and the United Kingdom. In Indonesia, such concept is largely unknown and were still new to the concept of termination of employment, this is also accompanied with the inadequacies of current law in regulating such concept. Unlike Indonesia, the United Kingdom already acknowledge the concept of Constructive Dismissal in which they include such concept to their own Employment Rights Act of 1996 in which it contains both the Constructive Dismissal and also the Unfair Dismissal under the sub-part of Dismissal Law in the Employment Rights Act. Furthermore In the Employment Rights Act of 1996, it concerns about the termination of employment in such a way it regulates with care to the protection of the rights of the employee, it is also done in a way that it is structured fundamentally on the protection of the rights and that it adopts the format of the International Labor Organization (ILO) agreement in which it is structured to be specific, detailed and structured as demanded by the International Labor Organization Convention No. 158 concerning Termination of Employment. Furthermore the Employment Rights Act of 1996 gives a flexibility on the option of decision made by the Employment Tribunal in which in cases concerning unfair dismissal, wrongful dismissal or a constructive dismissal cases gives a flexibility of choices for the employee that had been dismissed wrongfully, unfairly, or constructively by their employer. In this case the flexibility is apparent on the law where the employee could freely choose on whether they are going to be reinstated/reemployed or to be rightfully dismissed by giving a compensation to the employee, the flexibility of law could be seen on Section 112 of the Employment Rights Act which is concerning the remedies for unfair or wrongful dismissal. Furthermore dismissal cases that happened in the United Kingdom does not restrict the judges to only a specific regulation concerning a case and that the judge is free in deciding upon a case to make a new judgment concerning a case, this makes the practice of dismissal law always changes and that the practice and the decision upon a case to another is different between one another depending on the judges’ consideration and the agreement between the employee and the employer. This is different with the Indonesian law which uses the Law No. 13 Year 2003 concerning Manpower and also furthermore the Law No. 2 Year 2004 concerning Industrial Relation Dispute Settlement in which these two regulations were used as the laws regulating termination of employment in Indonesia. The two laws although in spirit follows the ILO’s Convention No. 158, it still has some obsolete content and older tradition such as the consideration of
Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 unharmonized relation between the employee and the employer caused by the dispute settlement case and also the absence of dismissal principle in the law, which does not exist in the United Kingdom’s Employment Relation Act of 1996. It is considered that the obsolete content such as the consideration of unharmonized relation hindered the application of several contents of the law, especially concerning the termination of employment, furthermore the law also does not promote a flexibility of law concerning cases that are regarded as dismissal cases and that such flexibility is needed as it is apparent that dismissal cases often occur in Indonesia which is still largely dependent on human labors as a workforce. The contents of the law is also considered to be unstructured in terms of its regulation concerning the termination of employment unlike the Employment Rights Act of 1996 and that it further hinder and complicate the application of the said law. As such, with the unstructured and not detailed as well as the usage of older tradition, absence of dismissal law and also does not have the flexibility of law unlike the Employment Rights Act of 1996, it gives a sense that the laws and regulations concerning employment in Indonesia is far from effective in terms of regulating employment in Indonesia, especially concerning termination of employment that is caused by unfair dismissal, wrongful dismissal or a constructive dismissal. Although it was made in a modernized and reformation era in which many laws and regulations had been changed, and that the law itself contained both the spirit of Pancasila as well as the ILO Convention No. 158, it is still vague and inadequate enough in its regulations concerning termination of employment and also resolving dismissal cases, it is also considered by judges in Indonesia that it is hard to apply the law to cases concerning dismissal of employees as they are restricted to using Law No. 13 Year 2003 in deciding upon dismissal case although the law itself does not regulate concerning cases that is involving dismissal cases, which then judges’ resort to the use of judge discretion because their limitation of laws and regulations concerning dismissal cases. Discussion Case Position The case concerns about the termination of employment of an employee which relates to the Constructive Dismissal practice. In the case, the Central Jakarta Industrial Relation Court Decision No. 144/PHI/G/2013/PN.JKT.PST. is a decision made by the industrial relation court concerning dispute over a termination of employment which is in accordance to Article 1 paragraph (4) of the Law No. 2 year 2004 Concerning Industrial Dispute Settlement. In the case, the parties are Aries Firman as the employee/plaintiff, and PT. Sarana Steel Engineering, the employer/defendant, which is represented by Sudjono Warsito that acts as the director of PT. Sarana Steel Engineering. In the further discussion concerning the analysis of the case, both Aries Firman will be mentioned as the employee and PT. Sarana Steel Engineering will be mentioned as the employer. The employee, Aries Firman, was an employee working since early March 10th 2001 and with the last position in the firm as a Marketing Supervisor. The basic wages of Aries Firman at the time is equal to Rp. 5.250.000,- (five million two hundred fifty thousand rupiah) monthly. At the time the employee does not have any other commission or other addition to its wage and that the basic wage covers all of the employee’s wages at the time. On November 1st 2012, the employee were summoned to the Human Resources Department room in which in the meeting the employee were given a Surat Peringatan III (SP III) No. 143/SSE/SP/XI/12, the final warning letter under the reason that the employee had committed a violation of working discipline which consist of : does not record the attendance list appropriately in accordance to arrival and return hours, leaving workplace without any reason or permit that is accepted by the employer, does not
Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 wear appropriate clothing that have been given by the company in which all of this violates the Article 29 of the Company’s Regulation. On November 2nd, the employer had unilaterally given a termination of employment letter No. 146/SSE/SK/XI/12, signed by Sudjono Warsito who is acting as the director of PT. Sarana Steel Engineering. The termination of employment letter were sent to the house of the employee in which the family of the employee receives it while the employee himself were still working. Because of the unilateral termination of employment committed by the employer and that there are no desire or attempts from the employer to settle the industrial dispute to the employee in a manner of deliberation and consensus way through bipartite attempts, the employee then goes for a tripartite dispute settlement by submitting a dispute settlement process to the East Jakarta Department of Labor and Transmigration on December 11th 2012. Although the mediation process had resulted on a recommendation letter made by the mediation from the East Jakarta’s Office of Department of Labor and Transmigration and that it was accepted by the employee, the employer does not accept such letter of recommendation and does not comply to the recommendation made, rather the employer still stick to the termination of employment letter and still regards the employee as have been dismissed from PT. Sarana Steel Engineering. Because of this, and in accordance to Article 14 paragraph (1) and paragraph (2) of Law No. 2 Year 2004, the employee filed for a suit regarding the employer’s act of incompliance to the letter of recommendation and further suit concerning the termination of employment that is considered unfair and wrongful in accordance to the law. Following the failure of dispute settlement through mediation, the employee the registered the case to Central Jakarta Industrial Relations Court on July 29th 2013. After a long series of procedures that had been conducted in the Central Jakarta Industrial Relations Court, on November 11th 2013, the Council of Judges had provided a decision as follows : DALAM EKSEPSI • Menolak eksepsi Tergugat untuk seluruhnya;
DALAM POKOK PERKARA • Mengabulkan gugatan Penggugat untuk sebagian; • Menyatakan hubungan kerja antara Penggugat dengan Tergugat putus dan berakhir sejak putusan ini diucapkan • Menghukum Tergugat untuk membayar kompensasi pemutusan hubungan kerja kepada Penggugat, yang terdiri dari uang pesangon, uang penghargaan masa kerja dan uang penggantian hak atas perumahan serta pengobatan dan perawatan, serta upah selama proses penyelesaian selama 5 (lima) bulan, sehingga keseluruhannya berjumlah sebesar Rp. 165.112.500,- (seratus enam puluh lima juta seratus dua belas ribu lima ratus rupiah_ • Menolak gugatan Penggugat untuk selain dan selebihnya • Menghukum Tergugat untuk membayar biaya perkara yang keseluruhannya berjumlah sebesar Rp. 300.000,- (tiga ratus ribu rupiah)
Juridical Analysis
Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 The decision made by the council of judges over the case in granting the application of termination of employment of the employee and giving the compensation package is considered to be reasonable and appropriate enough in accordance to Law No. 13 Year 2003, as the employer had committed a conduct in which the employee were disadvantaged and that the employer also had breach the term of trust and confidence of the employee. This further makes such decision viable enough to be deemed as the employer had infringe the rights of the employee for a job and the wage of the employee. According to the one of the judge of the case, the case were also one of the case in which the judge must scrutinize every facts of the case and that the judge must consider the best decision as there are still no regulation concerning dismissal claim. This makes the judges to use their discretion power and then relate it with the relevant law because it is considered that the law itself is still insufficient in addressing cases concerning termination of employment related to dismissal law, especially in this case the Constructive Dismissal claim. The council of judges had given such decision with the basis of Article 169 paragraph (1) to ensure that there is still protection for the labors and that such protection should still exist even concerning the case of termination of employment related to Constructive Dismissal claim. It is also rendered to give a legal certainty which was not yet regulated before by the law and that by this, the judge needs to understand that the Constructive Dismissal principle also exist in Indonesia and that the proofing must exist in such case, to give the most fair decision of all. Regarding this, the writer concurs with the decision of the judge had made. The granting of the termination of employment considered to be in accordance to the law and that the employee should receive an equal treatment and protection over the misconduct of the employer with using Article 169 paragraph (1) as the basis of the decision although it is still considered by the writer to be not sufficient for such case. It is also important to ensure that the termination of employment occurred are in accordance to the regulated procedures in accordance with the prevailing laws and regulations, in this case Article 169 paragraph (1) and (2) of the law, for the benefit of the employee. As can be seen from the flexibility of judge decision, The United Kingdom’s Dismissal Law regulates that it gives a flexibility of decision in which the employee shall choose between a reemployment and commitment by the employer to not do the wrongful act again or a termination of employment with a severance package, which the chosen decision will then be made legal by the judge of court. This was done in consideration of the benefit for the employee and also to protect the employee’s rights and obligations, which had been infringed by the employer. This leads to the mechanism of the process whether the employee wants to be reinstated or terminated and be given a severance package. Concerning the case, if such practice had been done, the outcome that had happened concerning the decision to grant the termination of employment of the employee indeed favored more to the benefit of the employee. First of all, the termination of employment were done in consideration that if the employment of the employee is still retained, it could cause the relationship between the employer and the employee to be not in harmony in which it could lead to another dispute and resulted on another application of termination of employment, so it is not advisable that a reemployment, reinstatement or retrenchment were to be done to the employee. Second of all, if the option of termination of employment were to be done in such a way that the termination of employment was granted by the court, during the waiting period of the employee in finding a new job, both the employee and the family of the employee will have protection of their livelihood and finance from the severance package given to the employee as a result of the termination of employment that were done as the employee himself is the only backbone of the family. By this, it is agreeable that the
Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 termination of employment were to be done as it is more beneficial in terms of financial and livelihood of the employee as well as the protection of the employee himself so as not to disadvantage the employee and further make the employee harmed by the conduct of the employer through reemploying the employee which could lead to another dispute and conflict between the employee and the employer as both of them had already a strained and unharmonized relationship between one another. Unfortunately, in Indonesia, there are still no further regulations or provisions concerning termination of employment that is related to dismissal law or dismissal principle, especially regarding Constructive Dismissal Principle. Thus in cases concerning termination of employment related to unfair dismissal or constructive dismissal usually the decision made by the judges instead does not favoring the employee as usually such decisions had been pegged by causes and schemes of termination of employment that already existed in the current prevailing laws and regulations concerning termination of employment. As such, some cases that is concerning termination of employment related to unfair dismissal, wrongful dismissal or constructive dismissal that occurred in Indonesia were still varied between one and another concerning the decisions made by the judges as there are no laws or regulations that addressed such matter and that through using judge’s discretion power, it means that the understanding of dismissal law and dismissal principle between one judge to another may vary which then affects the judges’ decisions in settling a termination of employment relating to constructive dismissal dispute in Indonesia. Moreover, the inflexibility of judge’s decisions coupled with the inexistence of laws and regulations addressing dismissal law and its principles makes the application of constructive dismissal claims in the court to be varied in terms of decisions concerning such, judges are required to know the substance of constructive dismissal principle and that judges have to consider the equal decision for both the employer and the employee while also considering the protection for the employee, which makes such application varied between one another. This accords with the opinion of one of the panel of Judges of the case, Saut Christianus Manalu, in which he stated that cases concerning termination of employment that is related to constructive dismissal as well as unfair dismissal and wrongful dismissal is a very common occurrence in cases concerning termination of employment, and that the current Law No. 13 Year 2003 is considered by judges to be insufficient in addressing cases concerning dismissal law such in which the contents are still too vague and too broad in terms of addressing dismissal law and the principle contained in it. Furthermore, it is considered that the law is still not perfect in such a way that the application of such law will only be effective if the application in terms of the procedural law corresponds with the law and the judge’s understanding of such application. One of the insufficiencies of the law is the flexibility of the decision of the judges in that it was one of the highlight of the application of dismissal law elsewhere, where many countries who had adopt the dismissal law had given the power of option of decision to the employee in which it will then be made as a decision by the judge and were then to be followed and fulfilled by the employer, this was done in those countries to give an equal judgment to the conduct of the employer that had harmed the employee in some ways. This flexibility of option of decision were critical in the decision-making process in the court that handle a case of termination of employment related to dismissal law, whether it is unfair dismissal, wrongful dismissal or constructive dismissal. The practice of flexibility of law in Indonesia on the other hand is nonexistent as the only choice for cases related to Unfair Dismissal which is impliedly stated in Article 155 of Law No. 13 Year 2003 is a reemployment while for cases related to Constructive
Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 Dismissal which is impliedly stated in Article 169 of Law No. 13 Year 2003 is a termination of employment and a severance package, this impliedly means that the law does not grant any flexibility of option of decision or judgment to the employee as the law itself already stated expressly concerning the procedure of decisions that shall be made to cases concerning termination of employment related to unfair dismissal, wrongful dismissal or constructive dismissal.
Conclusion Based on the research questions in this study and analysis, as well as its explanations, it is concluded that there are 2 points of conclusion that will answer the research question as follows: • The regulations of termination of employment in Indonesia is considered to be relatively comprehensive. However, under constructive dismissal framework there is still no further provisions that regulates constructive dismissal in detail. Such provisions that comprises of conditions required, flexibility of the judges to make the decision related to options reinstatement or termination of employment were non-existent in the current Law No. 13 Year 2003 which makes judgments or decisions made by judges concerning Constructive Dismissal cases instead does not favor to the protection of the employee. • The implementation of termination of employment under constructive dismissal framework in Indonesia is quite rigid. It is because the law is still depending on the reason-related scheme of termination of employment chosen by mostly the employer. In the case of reasons and procedures of termination of employment which are not in accordance to the law which make it to be made null and void, the legal consequences regulated under the Manpower Law is reinstatement, however such decision is not always beneficial or protective to the employee. This scheme is an important scheme to determine whether the termination of employment procedures has already undergone in accordance with prevailing laws so that the termination of employment will be deemed legal (as opposed to be deemed illegal and resulted in null and void termination of employment decision). This rigidity is in contrary with the law in the United Kingdom whereas it is regulated with flexibility of decisions made by judges in mind, which was done in consideration of equality and protection for the employee and also were done to fulfill the interest of the employee rather than making it not beneficial to the employee through the rigid procedures of the decisions in the law. Suggestion After making several related conclusions regarding constructive dismissal and dismissal principle and also its implementation in the perspective of Indonesian Labor Law, some suggestions will be given as follows: • Reflecting on the opinion of judges and also the application of the law for cases concerning termination of employment under the Constructive Dismissal Framework, there needs further provisions concerning conditions required that can give the judge a flexibility of making decisions and the procedures that is related to termination of employment under the Constructive Dismissal Framework. This is in line with the protection for employees and also the equality of rights for employee so that cases concerning termination of employment under the Constructive Dismissal Framework have a fair judgment that are beneficial to the employee as well as the employer, in which this practice are still often not done in Indonesia.
Analisis yuridis..., Muhamad Ghaney Kadri, FH UI, 2015 • Should such further provisions has been published and enacted properly in Indonesia, preferably the relevant parties should make a socialization concerning termination of employment under the Constructive Dismissal Framework, its procedures and the rights and obligations that is attained by both parties. The relevant parties could be from either the Government and also through private parties, in this case the Indonesian Employers Association/Asosiasi Pengusaha Indonesia (APINDO) so that both the employees and the employers will always respect and refer their practice in accordance with the provisions concerning the Constructive Dismissal Framework if such dispute should happen in the future as to this day there is still little socialization concerning the such matter.
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