La tutela judicial efectiva en la caducidad de la acción por despido ineficaz.

Abstract

Through the analysis of labor regulations and constitutional guarantees aimed at protecting workers in Ecuador, it is argued that legislation should have a protective orientation, prioritizing the rights of the most vulnerable party in the labor relationship, that is, the worker. However, the current structure of procedural actions, as typified in the Labour Code, presents a risk of violation of rights and directly affects one of the historical pillars of labour gains: stability. In particular, it addresses the provision of the Labour Code, specifically article 154 (the last paragraph of which was repealed), which previously provided for the possibility that a pregnant or breastfeeding person could file an action for violation of rights in the event of dismissal. The purpose was to obtain compensation equivalent to the value of one year's remuneration to mitigate the consequences of the interruption of income. However, with recent legislative amendments, this provision was repealed, replacing it with an action for a declaration of ineffective dismissal, which turned out to be unconstitutional and ineffective. In order to guarantee effective judicial protection, the reform of the Labour Code and the General Organic Code of Procedures is proposed. It is suggested to amend the rules of the action for ineffective dismissal to allow it to be filed within ninety working days of the dismissal. In addition, it is proposed to leave intact the right of the individual to bring an action for compensation under the same terms established in article 154 as amended. It should be noted that this research adopted a qualitative approach with an exploratory, descriptive and explanatory scope. Theoretical and exegetical-legal methods were applied with the aim of seeking possible incorporation into labor actions.