Employers cannot just determine and specify provisions in the Company Rules and Regulations as freely as they want. There are limitations related to the provisions that can be determined and specified in the Company Rules and Regulations, namely should be in accordance with the prevailing laws and regulations.
An industrial relations dispute between Nurhadi (“Claimant”) against Director of Santa Theresia Hospital (“Defendant”).
Summary of Case
The Claimant was about to take a test for Civil Servant Candidate (CPNS), thus he submitted a letter to the Defendant on 13th of September, 2014, which contains a request for permission to take the test, in case the test will take place unexpectedly, since the exact schedule of the execution of the test in question has not been known yet. However, the Claimant did not take the aforementioned test, given the difficulty of filing a request for permission to take the CPNS test. Although the permission has been cancelled, the Defendant still considered that the Claimant has committed a violation by submitting such letter.
On 15th of October, 2014, the Defendant called the Claimant, and stated that the Claimant is removed from Theresia Hospital, and is considered resigning, with the reason being a violation of Article 50 paragraph 6 of the General Regulations of Employees/ Company Rules and Regulations of Santa Theresia Hospital, which principally stated: “For employees who wish to take a test at another institution/ civil servants, is obligated to submit a written request of permission to the Director of the Hospital, a maximum of 3 (three) months and a minimum of 1 (one) month earlier. If this obligation is not carried out, then the employees in question are considered resigning and do not get severance rights or other rights, and nor given the termination letter.”
On the termination of the Claimant, the Claimant also assumed that the Defendant has performed an act of discrimination because the Claimant is a Moslem. That is because in reality, there are several other employees who made bigger mistakes which can even harm the Company/ Santa Theresia Hospital but were forgiven by the Defendant simply because they are non-Moslems.
Legal Consideration on the First Stage and Appeal Decision
In the first stage, the Industrial Relations Court at the Jambi District Court only considered one of the arguments of the Claimant regarding discrimination, whereas the Claimant’s arguments was not solely about discrimination, but also concerning termination of employment. The Claimant then filed an appeal to the Supreme Court. Through the Supreme Court verdict No. 522 K/Pdt.Sus-PHI/2015, the Supreme Judge granted the Claimant’s appeal, with the legal consideration which principally stated that (i) the Judex Facti verdict should have taken into consideration the provisions of Article 111 paragraph (2) of Law No. 13 of 2003 on Manpower which states that the provisions in the company rules and regulations shall by no means violate any valid statutory legislation, and (ii) the provisions of Article 50 paragraph 6 of General Regulations of Employees/Company Rules and Regulations of Santa Theresia Hospital are violating the provisions of Article 168 of Law No. 13 of 2003 on Manpower, since to be considered resigning, then the worker-in-question must have been absent for no less than 5 (five) workdays consecutively and has been properly summoned twice.
Rahmaddiar Ibrahim, S.H.