Exploring Termination of Employment Based on Serious Criminal Offences

There has not arisen any case laws post-Decision of the Constitutional Court No. 012/PUU-I/2003 and enactment of Article 52 paragraph (2) of Government Regulation No. 35 of 2021 to show how the Constitutional Court decision is being interpreted and applied by judges. The authors propose a future model for judges who will be adjudicating disputes in the Industrial Relations Court, that they may set aside rules which conflict with principles of law. The decision of the Constitutional Court stated that a reason for termination of employment due to serious violations pertaining to criminal acts perpetrated by workers as detailed in Article 158 of the Employment Law contradicting the 1945 Constitution having no binding force. Using normative legal research the authors argue that judges, based on several principles of law with independence of judiciary principle on their top, may disregard controversial regulation as the basis to justify the employment termination. It is argued as such, although the rule is still in full force as implementing law of a new Law on Job Creation. The new Law seemingly re-legalizes the right of employers to terminate employment due to acts of violation committed by workers as regulated in employment agreements, company regulations, or collective labor agreements. Based on the theory of Dignified Justice judges if any future disputes on termination of employment due to the controversial rule occurred may decide in favor of the employee based on important principles of law rather than the controversial rule. This will clarify the uncertainty of understanding among some circles that the Constitutional Court Decision could simply be annulled by Article 52 of Regulation No. 35 of 2021.