Every worker/laborer has the right to a decent living, including being given leniency if the worker/laborer is sick. Article 81 point 40 of Law No. 11 of 2020 concerning Job Creation (“Omnibus Law“) which amends Article 153 paragraph (1) letter (a) of Law No. 13 of 2003 concerning Manpower (“Manpower Law“) prohibits employers from terminating employment relationships (layoffs) on the grounds that the worker is unable to come to work due to illness according to a doctor’s statement as long as the period does not exceed 12 (twelve) months continuously. Based on these provisions, the prohibition on laying off employees who are sick (prolonged or continuous) is limited to a period of 12 (twelve) consecutive months. This means, in the 13th month, entrepreneurs can lay off the employee. This has also been confirmed in Article 81 point 42 of the Omnibus Law which contains Article 154A paragraph (1) letter (m) of the Manpower Law.

Article 55 of Government Regulation No. 35 of 2021 concerning Specific Time Work Agreement, Transfer, Working Time and Rest Time, and Termination of Employment (“GR 35/2021“) states that in the event of a layoff, the worker concerned is entitled to 2 (two) times severance pay, 1 (one) time service award, and compensation for entitlements. On the other hand, if it is related to workers who are sick and do not come to work and/or do not do work, Article 93 paragraph (1) of the Manpower Law states that, in principle, wages are not paid if the worker/laborer (employee) does not work, what is known with the principle of “no work, no pay.”

However, in Article 93 paragraph (2) letter (a) of the Manpower Law and its explanation, jo. Article 40 paragraph (3) letter (a) Government Regulation No. 36 of 2021 concerning Wages, workers are exempt from the principle of “no work, no pay” if they are sick according to a doctor’s statement that they cannot do the work. This means that if a worker is sick, they must still be paid their wages for the duration of the illness accompanied by a doctor’s certificate. If not accompanied by a doctor’s certificate, then “no work, no pay” is in effect and disciplinary action can be taken. The wages paid to workers who are sick are as follows:

1. First 4 months, 100% of wages;
2. The second 4 months, 75% of wages;
3. The third 4 months, 50% of wages;
4. The following month before a layoff is made, 25% of wages.

Furthermore, Article 161 of the Manpower Law states that in the event that the worker/laborer violates the provisions stipulated in the work agreement, company regulations or collective working agreement, the entrepreneur can terminate the employment relationship after the worker/laborer concerned has been given the first, second, and third warning letters in succession. This article can only be enforced if the person concerned violates the provisions in the work agreement, company regulations, or collective working agreement after previously being given a warning letter. So it is necessary to review the provisions in the work agreement, company regulations and collective working agreement.

If the worker/laborer cannot come to work due to illness and there is a letter/certificate from an authorized doctor, then he/she cannot be dismissed before the illness exceeds the period of 12 (twelve) consecutive months. However, if the person concerned is sick and is unable to provide a doctor’s letter/statement, then he or she can be categorized as absent. If they are absent for 5 (five) consecutive working days or more without a written statement accompanied by valid evidence and has been summoned by the employer twice properly and in writing, then dismissal can be carried out as regulated in Article 81 point 42 of the Omnibus Law.

Now, what if there are doubts about the doctor’s letter/statement, for example, someone pretending to be sick? The first step is finding the doctor who issued the letter/statement and checking whether the information given is in accordance with the condition of the worker/laborer to determine if they are actually sick or has issued a false statement. Although it is possible that the worker/laborer is the one who falsified a doctor’s certificate. This can be subject to criminal sanctions for fabrication, according to Article 263 paragraph (1) of the Indonesia Criminal Code and/or civil sanctions, and the entrepreneur can terminate the employment relationship as well.

However, if it can be proven or at least reasonably be presumed that a doctor has issued a statement that is untrue and/or deviates from the medical code of ethics, the doctor concerned must be reported to the authorities and may be subject to sanctions in accordance with the provisions. In fact, this is not only a violation of the professional code of ethics, it could possibly lead to imprisonment (vide Article 242 paragraph (1) of the Indonesia Criminal Code).

Another possibility could be someone taking of the names of doctors displayed on street signposts. For doing this, the perpetrator can be charged under Article 28 paragraph (1) of Law No. 19 of 2016 concerning Amendments to Law No. 11 of 2008 concerning Electronic Information and Transactions, which states that everyone is prohibited from intentionally, and without the right to, spreading false and misleading news that results in consumer losses in electronic transactions. In addition, the perpetrator can also be charged under Article 29 paragraph (1), Article 73 jo. Article 77 of Law No. 29 of 2004 concerning Medical Practice, which can be punished with a maximum imprisonment of 5 (five) years or a maximum fine of IDR 150,000,000,000 (one hundred and fifty million Rupiah).

There are many more issues involved in employment that have not been discussed in this article. Should you need a legal consultation related to employment, please do not hesitate to contact us or drop us an email at info@schinderlawfirm.com.