INDONESIA Law and Practice Contributed by: Lia Alizia, Jonathan Andreas Sitorus and El Yefta Akwila, Alizia & Partners Law Office
2.4 Preliminary Investigation and Scope- Setting It is possible to conduct a preliminary investigation to determine whether a full HR internal investigation is warranted. Indeed, this provision is typically exer - cised. A preliminary investigation is conducted primarily to generate an initial report. HR usually conducts a brief interview with the complainant or main witnesses, reviews materials such as emails and reports, and evaluates risks (reputational, legal or workplace safety issues). The goal is to obtain some initial evidence to justify a full investigation – or to determine that no further action is required. An interviewee in an HR internal investigation is an individual who holds relevant information regarding the matter, and whose testimony is critical to deter - mining the outcome of the investigation. Typically, those requested to participate in interviews include: • the reporter; • the respondent; and/or • witnesses such as colleagues, supervisors or other parties with direct or indirect knowledge of the alleged violation. The number of witnesses interviewed will depend on the evidentiary threshold and the availability of cred - ible and relevant testimony. 3.2 Participation Employers must address the reasons why an inter - viewee refuses to participate or elects to participate only in certain investigations or interviews. The strat - egies can be repressive or participative. Under the repressive method, disciplinary action may be taken in accordance with company policies/regulations or collective labour agreements (if participation is held to be a workplace duty), with refusal treated as mis - conduct. Sanctions could include warnings or ter - mination, depending on the applicable provisions. Employers under the participative approach must 3. Interviews and Fact-Finding 3.1 Interviewees
Under certain conditions, the Indonesian National Police may have the authority to conduct an investi - gation, along with the sectoral authority. 2.3 Confidentiality Agreements and NDAs HR personnel involved in internal investigations may need to sign confidentiality or non-disclosure agree - ments (NDAs). This practice is primarily aimed at safe - guarding sensitive information, including the personal details of all parties involved, from being disclosed, thereby mitigating reputational risks associated with premature or misleading information releases. In Indo - nesia, NDAs are recognised as enforceable contracts if they meet the validity criteria specified in Article 1320 of the Indonesian Civil Code (ICC). Article 1320 of the ICC sets out the four essential requirements for a valid contract in Indonesia: • agreement (consent) of the parties; • capacity of the parties to enter into a contract; • certain subject matter (a specific object); and • lawful cause (a legal purpose). If no NDA or similar confidentiality agreement is signed during an internal investigation, the parties are still required to maintain confidentiality as provided in company rules/regulations, collective labour agree - ments or employment contracts. This obligation also applies under the Personal Data Protection Law when personal data is involved. The employer or employee has recourse if the par - ties do not keep the HR internal investigation con - fidential. If an employee breaches confidentiality during an HR internal investigation, they may face a lawsuit under the Data Protection Law or disciplinary measures under company rules/regulations, collective labour agreements or employment contracts. On the other hand, employees may claim damages against the employer if confidentiality is violated, relying on company policies/regulations, collective agreements, employment contracts or applicable laws such as the Personal Data Protection Law.
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