INDONESIA Law and Practice Contributed by: Lia Alizia, Jonathan Andreas Sitorus and El Yefta Akwila, Alizia & Partners Law Office
4.2 Protection of the Respondent In line with 4.1 Protection of the Reporter , the respondent holds the same status as the reporter, namely as an employee. As such, the respondent bears the same rights as the reporter by virtue of being an employee. Therefore, the company must take measures to protect the respondent’s reputation, personality rights and other entitlements guaranteed under the Indonesian Manpower Law pending the out - come of any investigation. The Indonesian Manpower Law does not expressly regulate measures to safeguard the rights of respond - ents in HR internal investigations. In practice, such protections are determined by company rules/regu - lations or collective labour agreements. Typically, employers extend certain rights to respondents, including the opportunity to present a defence and access assistance or counselling, and the option to keep their identity confidential from external parties The legal bases for providing protection to the respondent are essentially aligned with the legal bas - es for protecting the reporter, as both hold the same status as employees. This implies that the respondent enjoys the same rights as the reporter until proven otherwise. The employers may face certain risks if they fail to protect the respondent’s confidentiality, including the potential for a defamation lawsuit. It is important to understand that an HR investigation is not a legal process recognised under Indonesian law; therefore, any findings or conclusions do not consti - tute binding legal decisions. Consequently, even if the respondent is deemed guilty based on the HR internal investigation, from a procedural law perspective they cannot yet be considered to have violated statutory provisions. On this basis, the respondent may file a defamation claim arising from the investigation results or from the employer’s failure to maintain the con - fidentiality of the respondent’s personal information. Similar to what was outlined in 4.1 Protection of the Reporter , a negative impact on the employer is pos - sible if the respondent is safeguarded while an internal HR probe is being conducted. Such measures help to guarantee fairness and confidentiality, and are expect - throughout the investigation process. Potential Adverse Consequences
ed. However, without due care, problems may arise. For example, other staff may perceive the employer as being biased towards or favouring the respond - ent, leading to a loss of confidence in the process of inquiry. Protective measures such as temporary reas - signment, limited access or modified reporting struc - tures can also affect workflow and team effectiveness. Moreover, if the complainant/reporter or witnesses are harmed as a direct result of those actions, the employer might be criticised for retaliation, unfair - ness or constructive dismissal. Legally speaking, excessively harsh or punitive measures against the respondent, especially before any results are discov - ered, can present the employer with a risk of a civil suit/contest of breach of contract, violation of privacy or defamatory allegations. To conclude, protective measures are suitable and occasionally required. However, the applied measures must be proportion - ate, neutral, consistent with policy, and applied such that no perceived or actual unfairness is involved. 4.3 Measures Against the Respondent An employer in Indonesia generally cannot impose disciplinary action on a respondent before the HR internal investigation is completed. The reason for this is that disciplinary measures must be based on proven misconduct, not allegations. However, the employer may apply temporary and non-punitive measures, such as paid leave or limited access to systems, if necessary to protect the workplace or ensure a fair process. These interim steps must be proportional and temporary, and must not harm the respondent’s employment rights. It is recommended that these interim steps be clearly provided in company rules/ regulations, collective labour agreements or employ - ment contracts. Employers may face challenges whether or not they choose to apply interim measures during an inves - tigation. Taking such steps can create a perception of unfairness, punishment or haste, which may lead to complaints of defamation or mistreatment. At the same time, avoiding interim measures can leave com - plainants, witnesses or the workplace environment vulnerable, increasing the risk of retaliation, loss of evidence or criticism for failing to act. For this rea - son, decisions should be balanced, carefully consid -
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