Regularización normativa del despido ineficaz en el sector privado, en el marco legal del estado ecuatoriano

Abstract

Globally, work is one of the main manifestations of the human being, it has important importance in the economic, social, political, environmental life of society. For this reason, work is protected by legal principles and norms in order to reduce the inequality in the worker-employer relationship. However, disrespect for labor rights still prevails as a normalized practice in society, against which, today, new legal figures have emerged to guarantee it. In the case of Ecuador, with the objective of guaranteeing the job stability of people in vulnerable situations, specifically, of pregnant women, pregnant or maternity and union leaders, in 20105, the legal figure of “ Ineffective Dismissal ”, as a special procedure against unjustified dismissal, whose raison d'être is the immediate reintegration of the dismissed worker and the integral reparation of their violated rights. In this context, the present investigation analyzes the cases of ineffective dismissal action in the province of Azuay, during the period 2015-2019, evidencing that in the application of the constitutional and legal norms legal effects are generated that leads to the inadmissibility of the demand for the manifestation of the decision not to return to their functions at the time of the claim, invalidating the reason for the creation of this legal figure, other reasons are the request for compensation that does not correspond to the agility that involves the processing of this figure and the breach of the obligation, in the case of female workers, of the notification of their condition by presenting a medical certificate that guarantees it However, a critical point in its application is the reduced time of the process that generates serious problems, both for the person acting and for the employer, due to the difficulty of gathering the evidence requested to admit or not the inefficiency of dismissal, in the same way Another issue that generates serious problems is the difficulty in notifying people of demands, these two issues are the main causes for abandoning demands in the province of Azuay. Concluding, therefore, that the Constitution and Labor Regulations are suitable normative instruments to guarantee fundamental rights, however, in order to materialize their mandates and make guarantees effective, it is necessary to adapt, in a formal and material way, the laws and others legal norms.