La inversión de la carga de la prueba en materia laboral como garantía del debido proceso del trabajador en situación de vulnerabilidad: la obligación del empleador de descartar la discriminación como motivo de terminación de la relación laboral.

Abstract

The burden of proof statement in labor law has been governed by the liberal and civil principle of the Onus Probandi for several years, the constitutionalization of the right to work as a fundamental right, has transformed the vision of it, not being limited to its patrimonial protection, but projecting towards the protection of intangible rights such as equality, nondiscrimination, decent work and among others. Handicapped people, pregnant women, people with catastrophic illnesses or the elderly, due to their vulnerability, have historically been discriminated, preventing them from entering, staying or returning to the labor market. The Ecuadorian labor law introduced the figure of discriminatory dismissal as a guarantee and as protection of the worker’s fundamental rights, protecting equality and non-discrimination. However, the substantive labor law offered something that the adjective labor law could not fulfill. Discrimination is a fact that occurs in the dark and intends to go unpunished, notwithstanding that, the proof of this fact falls on the worker, imposing a disproportionate burden compared to that of the employer. For this reason, the Constitutional Court of Ecuador imposed on the employer the obligation to prove in an objective, logical and reasonable manner that the dismissal was not due to the worker's state of vulnerability. This constitutional precedent has arisen from the conflicts of public labor law and in constitutional justice, this study will analyze its application and relevance for those workers under the Labor Code who go to ordinary justice to enforce their rights.