Compensation for Expats upon Termination of Employment

Discussion in 'Employment Law' started by merah07, Nov 28, 2016.

  1. merah07

    merah07 New Member

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    I am an American expat who has lived in Indonesia for eleven years. I am married to an Indonesian and by the end of the year I will be a KITAP holder.

    Recently my employment as a teacher was terminated at an independent school here in Indonesia. The termination was due strictly to the fact that I was not entitled to IMTA anymore based on being over 60 years of age. Otherwise, I was in good standing with the school. To my way of thinking, the school is indebted to me on two counts:

    1. Five year service allowance (awarded after five years of employment)
    2. Prorated 13th month bonus (I worked for exactly one-half of the year 2016)

    The school has said they will pay me the service allowance if and when they can afford it, but has not mentioned if and when they will honor the prorated bonus.

    Can anyone apprise me of my legal rights in this situation? If I needed to pursue legal aid, what would be the best resource?

    Thanks in advance.
     
  2. William King

    William King Well-Known Member Charter Member Cager

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    Depends on what your contract says.
     
  3. Jim69

    Jim69 Member Charter Member Cager

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    Forget the 13th month. be very lucky to see that.
     
  4. Om DelOreo

    Om DelOreo New Member

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    It isn't just about what's in your contract - it's also about what the law says. According to relevant laws, such as the Labor Law #13 (2003?), you are entitled to certain things. I haven't looked at the laws for a while, so you should really look at that one at least, plus the relevant regulations that support it.

    I suppose that if you're a permanent resident you cannot expect them to give you a one-way ticket home as is required by law for non-PRs.

    There is severance payment and 2 other types of payments upon termination that are calculated based on your salary and years of service. Given that you're being let go because of your age, I am guessing they are obliged to pay these things. I do not recall if the rules about the 13th-month bonus (THR for Muslims) say that you might get a portion of it.

    If you have problems, you can try taking this to the local department of labor. You'll need to be careful because they are usually quite corrupt. If your contract is in a foreign language, have it officially translated to Indonesian first to avoid them refusing to help you. Technically, it is my understanding that they cannot refuse to help you if your contract is not in English, but that won't necessarily stop them from trying and then going to your employer to blackmail them. That happened to me once. Make sure you understand labor laws as best as you can, and it is best to have a written letter of complaint. A letter forces them (in theory) to respond in writing to your complaint. A polite conversation without something in writing probably won't be productive, but I could be stereotyping. ;)

    You could also hire an attorney or go to any university with a legal department and seek help from legal team that helps people for free, but you may find it a challenge to find someone well-versed in labor laws about foreigners who are PRs.
     
  5. William King

    William King Well-Known Member Charter Member Cager

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    Unless i am wrong, severance pay is for tenured staff or breaking a contract. The OP implies he was let go for turning 60, but unless his company are completely stupid i would assume his contract finished and they did not renew it. Which does mean no severeance because his tenure or contract was not severed.

    It also depends on his contract as to his length of service. Since multiple contracts do not count. So did he work 1 year, 2 years or 5 years on his last contract? In order to calculate his years of service.
     
  6. merah07

    merah07 New Member

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    Response to Om Del Oreo & William King: Actually, my contract was severed due to Diknas' imposition of the law pertaining to age-limit. Yes- my school was that "completely stupid"- but they are also contemptuous towards employers in all such matters upon finding themselves unprepared. I appreciate so much, Om Del Oreo, your reference to the Labor Law #13. I'm hoping the issue will resolve soon, but I will use said provisions of the law if need be.

    One more question: if I file an employment complaint to the U.S. Embassy, do I address it to the U.S. Labor Attaché?

    Thanks in advance.
     
  7. Puspawarna

    Puspawarna
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    Trying to involve the US Embassy is a waste of time - their role does not include intervening in labor contract disputes. However, don't listen to me, since I'm not speaking from personal experience or in an official capacity, I'm just repeating what "everyone knows." (Although I am positive "everyone" is correct in this case.)

    Why don't you save yourself some time and call or email the consular section of US Embassy to ask them whether they help with complaints like yours - in the highly unlikely event that they say "why yes, we can help!" you can ask them to whom you need to address your letter. But don't get your hopes up.
     
  8. atlantis

    atlantis
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    ANY TKA (foreign worker) is entitled to a ticket back home at the end of his/her contract and regardless of the fact that he/she is a temporary or permanent resident.

    Pasal 48 UU 13/2003

    Pemberi kerja yang mempekerjakan tenaga kerja asing wajib memulangkan tenaga kerja asingke negara asalnya setelah hubungan kerjanya berakhir.


    As you see there is no distinction made in between ITAS or ITAP holder. Any TKA is entitled to it. For the record, the definition of a TKA is as follow:

    Pasal 1 UU 13/2003

    13. Tenaga kerja asing adalah warga negara asing pemegang visa dengan maksud bekerjadi wilayah Indonesia.

    Very simple. Your company has an IMTA for you and sponsor your residency permit, you are a TKA. Period.

    First, THR doesn't concern only Muslim but ALL workers of the 6 recognized faith. Payment of the THR must be made for the main hari raya of the religion of the worker (ie Idul Fitri for Muslim, Christmas for Katolik and Kristen, Nyepi for Hindu, Waisak for Buddha, Imlek for Khonguchu...etc), unless there is an agreement with unions for the payment to be made another day.

    Payment of THR is due for any worker with a contract (limited time or not) who has been working at least one full month. It is equal to 1 full month of salary if the worker has been working a full year (12 month) and is a proportion of it for anyone having working more than 1 month but less than 12 month. It is then calculated as follow:

    Length of work in months / 12 x 1 month

    Should you need more detail the current regulation is the Peraturan Menteri nakertrans nomor 6 tahun 2016 tentang THR Keagaman.
     
    Last edited: Dec 5, 2016
  9. atlantis

    atlantis
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    Here! Here!
    What a weird idea. The US embassy? How would they be competent and interfere in a legal problem in Indonesia. Would the Indonesian embassy in Washington be regarded as competent, in a dispute between an Indonesian immigrant worker and an US employer?

    Addit: go to Nakertrans in Jalan 17 agustus, not far from Imigrasi and report your claims.
     
    Last edited: Dec 5, 2016
  10. William King

    William King Well-Known Member Charter Member Cager

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    Indeed, that law has been in force quite a number of years, I'm surprised they even gave you a contract, or that you signed one knowing you were about to turn 60. Or already are.
     
  11. merah07

    merah07 New Member

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    I'm the original poster- and it's been about 18 days since I first posted. I haven't visited here in a while and am happy to see a few more posts. For all of you who are keeping score, I have some good news, actually. The school did come through and payed both my prorated 13th month THR and five year service allowance. Atlantis- yes, I did visit Nakertrans at 17 Agustus, and they were quite sporting and treated me well, showing some deference to the fact I was let go to pasture. They confirmed that the flight back home was due me (Pasal 48 UU 13/2003), just as you said. Since I am living here and just received my KITAP with no plans of leaving town, it is a flight I am not pursing, though perhaps I should.


    My good standing as an employee certainly helped me through this six month quest for fair severance, as this particular school's M.O. is war by attrition and non-communication. They simply waited to pay as per the budget allowed.


    As far as teaching contracts and age limitations go- when I first signed on in 2011 I was just turning 59. Due to this, the school's HRD at that time said that getting IMTA might be difficult. I was also under the impression that there was a five year work visa involved as well- a point that still confuses me- and that once the visa was approved, it would carry me over the age 60 and there wouldn't be a reckoning until 2016- which is exactly what happened.


    Though the school promised me they would "help"- i.e., hire me under different legal circumstances- they did not. They "came to the conclusion" some five months after the lapse of my work visa in June 2016 that the new tightening of regulation would not allow it. For the record, I don't have a procedural problem with this.


    So to William King's last comment: I signed a two-year contract for the period 2015-2017, and the work visa renewal happened to fall in the middle of that time frame. As it turned out, I was able to work for one-half of that contractual period. I had an inkling the age issue would come up to bite me, but every the administration was laissez and didn't care to check into it. It served me well financially to work for one half of that contractual period due to a significant pay raise.


    Teaching contracts include the following "benefit": one-way ticket back to point of hire- not the foreigner's native country. Depnakers, as noted, disagreed with the schools application of the law. I will pursue this and see how far I can get with it. I have yet to formally check out, and I will force this issue as I have the rest. The school has perhaps 80 foreign nationals under teaching contract. Most are from the Philippines, and are hired there. So they never have a problem with getting a flight back home at the end of their school employment.


    One teacher has been ill-effected on all counts here- an American who was recently fired after having a verbally violent row with the director. They gave him a flight only back to Jakarta- his point of hire- and also withheld his THR (at least according to him). They also forced his to pay all visa expenses (KITAS, IMTAS) going back to the renewal of his contract in June of 2016. They hit him with every fine they could conjure apparently. I have no idea whether what they did was legal, though visa fines are itemized in the contract pursuant to being terminated for rash indiscretions.


    In the case of this terminated teacher, his KITAS is cancelled and immigration gives such a person seven days to leave Indonesia. This, of course, leaves no time to fight the school over legalities unless one sees fit to return to the country and make battle.

    Thanks to everyone for your sage advice.
     
  12. Zavia

    Zavia Member Charter Member Cager

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    Id like to follow up abit...
    Did you persue your right for a ticket back? Maybe just the money for it? :D

    Does anyone know if the fired american had an alternative action?
     
  13. merah07

    merah07 New Member

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    I am pursuing the right to a ticket, but it is not looking good at the moment. I visited DESNAKERTRANS yesterday, and concerning the right to a return ticket, they agreed with the contract stipulation that the employer is only responsible for granting a ticket in return to point of hiring. Since I was already living in Indonesia, when hired, at least the three employees with whom I spoke to yesterday did not support my claim based on being recruited within Indonesia. But Article 48 states nothing about point of hiring, but I have a feeling that there must be a PP attached to the UU that gives employers the right to deny it. If not, then I really don't know how such a thing is interpreted rationally. There is also the confusion when signing a contract whose stipulations seem in conflict with Indonesian law. As a foreigner, sometimes I get the sense that company rules trump Indonesian law.

    I did make headway on other points, though, and DENAKERTRANS is forcing my former employer into mediation with me. I will report back after mediation.

    As far as the American who was fired, I'm not sure he had an alternative. He may or may not have collected the limit of three administrative warning letters after having had his emotional confrontation with the director. I'm aware of past altercations he had had with the director, and he had admitted as much to me. He may have been terminated based on the warning letter criteria. The logistical problem remains of whether contesting termination would have been worth the trouble, as he lost not only his KITAS, but also his housing which was also provided by the school. He would have been forced to leave the country, return with a new visa, settle into a hotel, and start the bureaucratic wrangling. I believe in his case he opted for permanently moving on. He's currently living back in the United State.
     
  14. Zavia

    Zavia Member Charter Member Cager

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    I think its quite nice to hear DENAKERTRANS helping you out. Either way if you get 90% of what you would have got, it may be wise to accept while the goings good.

    I was thinking the american can persue it in from their embassy... it sucks that they can do that and theres no way to challenge it realistically.
     
  15. SushiMasterX

    SushiMasterX New Member

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    Hi merah',

    Kinda same boat here too. Are you going through Disnaker Gambir/jkt central?

    I'm there in a few days for mediation also. I requested it though and it seems your PT requested yours. Correct?

    Perhaps we should float info between ourselves, hell, come to my mediation too. More the merrier. A flood of Trumpin-Steins.
     
  16. merah07

    merah07 New Member

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    Hi SushiMasterX: Same boat, HEH? Well, I forced my employer into mediation as per DESNAKERTRANS request. They gave my employer a week to respond, and last night the employer called me and set up a mediation meeting for Wed., Jan. 11 (tomorrow). They complied to the meeting in a timely fashion. Yes- we should compare notes privately. Please feel free. Sounds like I'm a couple days ahead of you. I'll let you know what gives. No- to be clear- I requested the meeting. I'm willing to go the distance on this. Sorry- I don't live in Jakarta- but in Sulawesi. Good luck, and thanks for the contact.
     
  17. Om DelOreo

    Om DelOreo New Member

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    Atlantis: Thanks for the corrections.

    Just to clarify, my comment about THR was incorrect; somehow, I thought that THR was the term for Muslims and there was some other term for other people - silly me!

    As for the ticket, my supposition was based on my own experiences here as someone who's been here long-term and had employers who refused to give me a one-way ticket home. This was often because they wanted me to start a new contract, thus a ticket home was not in their best interests, nor mine due to the cost of the return trip and all the hassles both directions entail. Most usually gave me a cash compensation for the ticket, although one or two did not. At the start of my employment here, the rules may have been different and employers made no effort to inform me of the law. I didn't even know about the laws for the first several years here. It was only due to forums like this that I started to learn. I find it hard to keep up as well as the problem of my optimistic interpretations that aren't in line with the way the laws are implemented, much less all the supporting ordinances are something I'm even less aware of.

    Looking at the law again, it seems that it is not dependent on a contract ending, but on the working relationship ending. Correct?

    Merah07: As Atlantis showed, the law is very clear about the ticket going back to your country of origin:

    "The employer who employs a foreign employee is required to return that person to their country of origin after the work relationship has ended."

    Therefore, whether or not you reside here, they must still give you a ticket home. You can certainly negotiate to have it converted to cash!

    In regards to the American who was fired, the law (as I recall) is very clear that the terminated employee can have the balance of fees charged back to them. That means that the employee becomes responsible for a pro-rated amount of the cost of employing that person incurred by the employer. So, the cost of the visa, IMTA, documentation at the various other departments, foreign employee tax, etc. will be charged back to the employee who is terminated/leaves early, minus the pro-rated amount based on their service to the company. I hope that makes sense.

    As for a contract trumping national laws - it's not likely.
     
  18. buleleng

    buleleng New Member

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    So - should a TKA get paid the pro-rata THR if his contract is terminated earlier than the THR payment due? Example: THR in December, TKA terminated in June, so he should get 6 months from his THR allowance?

    So I understand the general "tendency" is that Depnaker seems to interpret that this law only applies to TKA that are actually hired outside Indonesia? How about if a TKA has a KITAS ikut istri, then it seems Depnaker doesn't see this as being eligible for a flight ticket?
     
  19. vocalneal

    vocalneal Active Member Cager

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    Strange. This is also the case to teachers in Thailand. I wonder why? One of my older friemds had the sam problem in Thailand a few years ago. I think he managed to wangle one more year.

    Is the 60 limit for a work permit applicable to all professions and skills?
     
  20. William King

    William King Well-Known Member Charter Member Cager

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    It is specially written into the education legislation that applies to SPK schools ( Which is not to say that other professions do not have similar rules )
     
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