PHK Mangkir: Aturan Jeda Tiga Hari Itu Sudah Dihapus

There is a recurring pattern in the Industrial Relations Court. Companies terminate employees who are absent for five consecutive days, two summons have been sent, the documentation seems complete, and then the company loses. What usually invalidates the case is not the magnitude of the requirements, but rather the time gap between the two summons.

Three requirements that must be met simultaneously

The legal basis for termination due to absenteeism is now found in Government Regulation Number 35 of 2021. Article 36 letter j lists absenteeism as one of the reasons for termination, and Article 51 reiterates the requirements in full: an employee must be absent for five working days or more consecutively, without written explanation supported by valid evidence, and has been summoned by the employer twice in a proper and written manner.

All three are cumulative. If one fails, the qualification for absenteeism is lost, and what remains is a regular termination with significantly different cost consequences.

The term "proper" has lost its definition since the Job Creation Law

Here lies the trap. The benchmark of at least three working days between the first and second summons is indeed real, but its source is the Explanation of Article 168 paragraph (1) of Law Number 13 of 2003. That explanation also stipulates that the summons must be addressed to the employee's address as recorded by the company based on the employee's own report.

Article 168 has been repealed by the Job Creation Law, and the status of its repeal is reaffirmed in Law Number 6 of 2023, complete with the explanation that has also been declared repealed. Its replacement, the Explanation of Article 51 of PP 35/2021, simply states "Clearly sufficient".

This means that the phrase "in a proper manner" remains a binding requirement, but the criteria are no longer written in any regulation.

The criteria move to the courtroom

Since there is no replacement definition, propriety is assessed based on the concrete circumstances of each case. Industrial relations practitioner Juanda Pangaribuan argues that the three-day gap is not an absolute requirement, and the assessment must use the principle of good faith from both parties. According to this view, the second summons may be sent sooner if the employee clearly disregards the first summons.

The opposite side is equally sharp for the company. In Decision Number 7/G/2011/PHI.PN.TPI read by the Tanjung Pinang District Court on June 22, 2011, the absence of an employee for several working days was initially treated as absenteeism. However, a medical certificate received by the company a few days later led the panel to assess that the absence had a valid reason. The qualification for absenteeism was invalidated, the employment relationship was deemed terminated due to the employer's termination, and the company was ordered to pay the remaining contract amount of Rp8,360,000.

The lesson is simple and uncomfortable: an employee's explanation can come after the second summons has passed, and it is still counted.

Other deadlines that also determine

The procedure does not stop at two summons. Article 37 paragraph (3) of PP 35/2021 requires the termination notice to be delivered in a proper and valid manner no later than fourteen working days before the termination, and seven working days if the employee is still in the probation period. Article 39 paragraph (1) gives the employee seven working days to express their rejection along with the reasons, starting from the date the letter is received. If a rejection arises, the resolution must first go to bipartite negotiations.

What employees receive

Article 51 mentions two components: compensation for rights in accordance with Article 40 paragraph (4), and severance pay whose amount is regulated in the employment agreement, company regulations, or collective labor agreement. Compensation for rights includes unused annual leave that has not expired, as well as return travel expenses for the employee and their family to the place where they were employed. There is no severance pay and no service award here, unlike other termination reasons that have their own work period table and multipliers.

Note the last part of Article 51. The amount of severance pay is entirely left to the company's internal documents. If that figure is never included in the employment agreement, company regulations, or collective labor agreement, the company loses its grip at the most needed time.

Four determining notes in the documentation

What distinguishes the documentation that holds up from the documentation that fails usually involves four things. First, the dates of absence are counted per working day, not per calendar day. Second, the address for the letter follows the data reported by the employee themselves, not the last address coincidentally known by the supervisor. Third, there is proof of delivery as well as proof of receipt for both letters. Fourth, if the gap between the two summons is less than three working days, the reason must be recorded from the outset, not constructed after the case has progressed.

Termination Due to Absence: The Three-Day Break Rule That Is Often Misunderstood as Still Applicable