Jurisprudence : Transfer Cannot Be Carried Out From One Company To Another Company Despite Being In One Group

Man with attitude showing papers to office worker

Learning Point:

A transfer cannot be carried out from one company to another company, despite being in one group because principally, the two companies are two different legal entities. Thus, in such matters, from the company transferring the employee, the employee is considered terminated or laid off.

An industrial relations dispute between PT Sangwoo Indonesia (“Claimant”) against Nuke Wahyu Widiyanti (“Defendant”).

Summary of Case

The Defendant initially worked in administration division at PT Sangwan Dinasindo. But seeing the need of employees on the Claimant’s company, which is in one group with PT Sangwan Dinasindo, the Defendant was transferred to the Claimant, placed in the administration division. The Defendant accepted the transfer from PT Sangwan Dinasindo to the Claimant, and undergone the transfer for 11 (eleven) years, 9 (nine) moths, namely from June 1, 2002 until March 13, 2014.

Based on the assessment of the Defendant’s performance, the Claimant later on March 13, 2014 issued a policy through Employee’s Transfer Letter No. 01/SWI/SK/03-2014, to transfer back the Defendant, from the Claimant to PT Sangwan Dinasindo to work as a production staff, starting on March 15, 2014.

However, since March 15, 2014 the Defendant has been absent from work for 5 (five) days consecutively without giving a reason/ written explanation to the Claimant, despite has been properly summoned 3 (three) times by PT Sangwan Dinasindo. Therefore, the Defendant was considered doing an absenteeism, thus the employment relation between the Claimant and the Defendant was terminated because the Defendant was qualified as resigning.

Later on, it is known that on February 17, 2014, the Defendant was scolded by Mr. Kim Jung Hoon (General Manager PT Sangwoo Indonesia) for no apparent reason and the Defendant was immediately transferred with the reason that the Defendant is unable to work. On February 18, 2014, the Defendant’s job position was immediately replaced by a new staff, and after that substitution, the Claimant did not provide any job position to the Defendant and the job status was unclear.

On March 13, 2014, the Claimant issued a Transfer Letter addressed to the Defendant, which essentially stated that the Defendant is to be transferred to PT Sangwan Dinasindo while still placed in an administration division. The Defendant refused the transfer, because the transfer that was conducted by the Claimant was a transfer between companies which essentially are different legal entities, and therefore that action is qualified as a termination of employment (“PHK”). In addition, the implementation of the transfer was not in accordance with the Employee’s Transfer Letter No. 01/SWI/SK/03-2014, in which the Defendant should be placed in the administration division, but in fact the Defendant was actually placed in a lower position than the previous position, namely the production division.

After the Defendant refused to be transferred and returned to the Claimant, the Claimant scolded the Defendant for refusing to be transferred to another company and instantly evicted the Defendant out of the company. Because of being forcibly evicted by the Claimant out of the Claimant’s company, the Defendant did not come back to work. The Defendant has also never received 3 (three) summons from PT Sangwan Dinasindo.

Legal Consideration on the First Stage and Appeal Decision

In the first stage, the Industrial Relations Court at the Bandung Disctrict Court granted the Defendant’s request partly, by declaring the action of the Defendant as an act of absenteeism, with consideration which principally stated that (i) the Defendant never came to work since refusing the transfer to PT Sangwan Dinasindo; (ii) PT Sangwan Dinasindo had summoned the Defendant 3 (three) times; (iii) the Defendant requested a termination of employment from PT Sangwoo Indonesia; and (iv) the Claimant had summoned the Defendant to work again.

In regard to the decision in the first stage, the Defendant filed an appeal to the Supreme Court. Through the Supreme Court decision No. 339 K/Pdt.Sus-PHI/2016, the Supreme Judge granted the Defendant’s appeal, with the legal consideration which principally stated that (i) the Defendant did not come again to work because the Defendant was forcibly evicted out of the company; (ii) the Defendant never received the summons which were sent 3 (three) times by PT Sangwan Dinasindo. Moreover, the summons were conducted by PT Sangwan Dinasindo who did not have a work relationship with the Claimant (PT Sangwoo Indonesia), therefore the Defendant cannot be declared as to has conducted an absenteeism, let alone resigning, because PT Sangwoo Indonesia and PT Sangwan Dinasindo are different legal entities; and (iii) the Employee’s Transfer Letter No. 01/SWI/SK/03-2014 dated March 13, 2014 which was issued by the Claimant is invalid.

Rahmaddiar Ibrahim, S.H.

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