INDONESIA Law and Practice Contributed by: Indra Setiawan, Ridzky Firmansyah Amin, Marintan Panjaitan and Tifanny Natalia, ABNR Counsellors at Law
As the law is silent on types of gross misconduct, vio - lations considered gross misconduct must be explicit - ly stipulated in the employment agreement, employee handbook or collective labour agreements. For reference, GR No 35/2021 provides the following examples of action that can be classified as gross misconduct (to be further stated in the employment agreement, employee handbook or collective labour agreement): • committing fraud, theft or embezzlement of com - pany goods or money; • providing false or falsified information that is detri - mental to the company; • being drunk, consuming intoxicating liquor, or using or distributing narcotics, psychotropic or other addictive substances in the work environ - ment; • engaging in immoral acts or gambling in the work environment; • attacking, abusing, threatening or intimidating co- workers or employers in the work environment; • persuading co-workers or employers to commit acts that are contrary to the law and regulations; • carelessly or deliberately damaging or placing company property in danger, which causes harm to the company; • carelessly or deliberately placing co-workers or employers in danger at work; • revealing or divulging company information that should be kept confidential, except in the interests of the state; and • committing other acts within a company, punish - able by imprisonment of 5 years or more. Even though it is not expressly required under the Indonesian employment law, if the gross misconduct constitutes a criminal act, the Industrial Relations Court may require a final and binding criminal court decision declaring that the employee has indeed com - mitted a criminal act, as proof of the employee’s viola -
between the employer and employee if the employ - ment relationship is mutually terminated. The META is usually formed based on the mutual consensus of the employer and the employee, wherein the parties’ agreement to enter into a META is done under the principle of freedom of contract provided under the Indonesian Civil Code. Upon execution, the META must be registered with the Industrial Relations Court having jurisdiction over the META-signing location. A duly executed META is valid and binding upon execution of the META and the payment of the severance package. Registration of META is only a procedural formality. There are no specific requirements or limitations on the terms of a META, as these will be based on the parties’ agreement. In general, the META can stipu - late the effective date of termination, the amount in the severance package that the employer will pay to the employee, and even post-employment termina - tion obligations such as non-solicitation, non-com - pete and confidentiality provisions that the employee shall adhere to for a certain period, provided they do not contravene the law, general principles and public order. 7.5 Protected Categories of Employee There is no specific protection against dismissal for particular categories of employees. However, employ - ers are prohibited from terminating an employee for the following reasons: • prolonged illness not exceeding 12 months; • fulfilment of a state obligation; • adherence to a religious obligation; • marriage; • pregnancy, giving birth, miscarriage or nursing a baby; • being related by blood or through marriage to another employee in the company; • establishing, becoming a member of or managing a labour union; • participating in labour union activities outside working hours (or during working hours in accord - ance with an employment agreement, employee handbook or collective labour agreement);
tion, in relation to their termination. 7.4 Termination Agreements
Termination agreements (or a META, as explained above) are permissible under Indonesian employment laws and regulations, which are usually entered into
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