- What we stand for
- Our members that move with us
- See the impact we create
- Knowledge sharing
The complainant, who was the factory-level trade union leader, indicated that he/she had been dismissed by the factory due to a legal issue in his/her personal life that led to a police investigation.He/she, however, indicated that this legal issue was just an excuse to dismissing him/her.
The complainant, who was the factory-level trade union leader, indicated that he/she had been dismissed by the factory due to a legal issue in his/her personal life that led to a police investigation. He/she, however, indicated that this legal issue was just an excuse to dismiss him/her. FWF decided that the case was admissible on 17 April 2017 based on the report of an independent legal expert (more information given below). The reason for the long time between receiving the complaint and declaring it admissibility was due to the sensitivity and complexity of the complaint, meaning that it was for a long time unclear whether or not the complaint was admissible. Based on the report of the independent legal expert, FWF determined that the dismissal of the complainant on the basis of article 160 of Act No.13/2003 was not appropriate. To this end, Schőffel was asked to ensure that the factory and the worker entered into a dialogue (preferably facilitated by an independent third party) to identify a solution acceptable to both sides.
This case is still open.
To investigate whether or not the complaint was admissible and whether dismissal of the worker was in accordance with local legislation, FWF assigned an external legal expert to investigate. The investigation focused in particular on the applicability of Article 160 of Act No.13/2003 on Manpower in the Labour Law, as the factory used this articleas basis for the dismissal(based on the documentation provided by the factory to Schőffel.
The independent legal expert reviewed all documentation, interviewed the worker, checked with local legislation and invited the factory to provide input. The factory, however, indicated it did not want to use the opportunity at that time to contribute to the investigation of the independent legal expert. Based on the investigation, the main findings of the independent legal expert were: Article 160 of Act No.13/2003 on Manpower is applicable to dismiss a worker if the worker has been detained by the police. There is no evidence that showed that the worker had been detained by the police.Article 160 of Act No.13/2003 on Manpower allows termination against a worker who is unable to work for 6 months because the worker is involved in a legal process. In this case, however, the worker was suspended by the factory and was subsequently not allowed to work by the factory even though he had not been detained by police. This means that it was the factory that made it impossible for the complainant to work at the factory, and not the involvement in any legal process. Article 160 of Act No.13/2003 on Manpower obliges the employer to rehire the worker if the worker is not found guilty by the court within 6 months period. The employer may terminate the worker if the court declared that the worker is guilty. In this case, there is no evidence can prove that the worker was tried in court or declared guilty. The case remained with the police, and was never submitted to a prosecutor or court of law. A person cannot be considered guilty if the decision of the criminal court is not legally binding, as referred to in Article 8 paragraph (1) Act of the Republic of Indonesia Number 48/2009 on Judicial Power.In this case, therefore, the complainant still had the right to work.Even if there is a determination from the police that the worker is seen as a suspect,as long as there was no detention then the worker still has the right to work.Based on the report of the independent legal expert, FWF determines that the dismissal of the complainant on the basis of article 160 of Act No.13/2003 is not appropriate.
According to Article 171 of Act. No. 13 Year 2003 on Manpower, the worker may file a lawsuit for the settlement of an industrial relation dispute within one (1) year of date on which his employment was terminated. In this case, the complainant has not done this, meaning that the right for him to file a lawsuit has expired. However, given his/her long employment history(more than 20 years), the determination that the dismissal was inappropriate based on the report of an independent legal expert, and the complainant’s desire to resume work at the factory, Fair Wear Foundation recommends that Schőffel actively works to remediate. To this end, Schőffel should ensure that the factory and the worker enter into a dialogue, preferably one which is facilitated by an independent third party, and come up with a solution that is acceptable to both sides.
A verification audit will take place in 2017 where the progress of the complaint remediation will be evaluated.
The brand informed FWF that the member stopped sourcing at the supplier as of 2 October 2017.
At that time, the supplier and complainant were still negotiating and no final conclusion had yet been reached.
In line with the FWF Complaints policy, FWF will close the complaint six months after a member stops sourcing from a supplier.