Elma Putri Tanbun (2019) Dissinkronisasi Pengaturan Pemutusan Hubungan Kerja Terhadap Pekerja/Buruh Karena Kesalahan Berat. Skripsi thesis, UNIVERSITAS AIRLANGGA.

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Abstract

Grave mistakes is one of the reason of the termination of employment as stated in Article 158 of Law Number 13 Year 2003. Furthermore based on Article 170, the termination of the workers/laborers concerned can be done unilaterally by the employers. The Constitutional Court (MK) Decision Number 012/PUU-I /2003 then invalidates both of the article because it is considered contrary to the Constitution. The articles implies that workers/laborers who commit grave mistakes can be directly terminated in the employment relationship based on evidence without legality tested and due process of law through an independent and impartial court, thus contradicting the presumption of innocent principle. In fact the grave mistakes as stated in Article 158 of Law Number 13 Year 2003 are included in the category of delict or crimes threatened with criminal conduct, therefore the settlement of termination of employment due to grave mistakes should be through mechanism stipulated in the Criminal Procedure Code. Based on that, the termination of employment may take place after a criminal verdict having a permanent legal force (inkracht van gewijsde). In connection with this decision, Minister of Manpower and Transmigration circular Number SE.13/MEN/SJ-KI/I/2005 and a Supreme Court circular Number 3 Year 2015 was issued. In both of the circular letter there has been a dissynchronization of termination of employment due to grave mistakes, which are not in line with the Constitutional Court's Decision. In this case the reference is the Constitutional Court Decision because circular letter basically is a policy rules and not included in the hierarchy of the legislation in Indonesia. The legal effort that can be done by the workers/laborers if the termination of employment due to grave mistake without a criminal verdict having a permanent legal force occurs is through labor inspector and through industrial relations settlement mechanism as regulated in Law Number 2 Year 2004.

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