La vulneración de derechos y el acceso a garantías jurisdiccionales en la desvinculación de funcionarios públicos entre 40 y 65 años en el área laboral ecuatoriano.

Abstract

Background: This study examines the termination of employment of Ecuadorian public servants aged 40 to 65, revealing a dual violation of rights. First, it addresses acts of dismissal based on merely apparent reasoning, in breach of due process and the requirement of sufficient justification. Second, it analyzes the harm produced at the stage of judicial protection. Objective: To determine how these cases violate rights and to propose tools to remedy this dual harm, while guaranteeing equality and non-discrimination. Methodology: The analysis adopts a legal-empirical approach, examining the constitutional framework (the Constitution, LOSEP, LOGJCC, and the 2025 labor reform), the case law of the Constitutional Court, and international instruments on age non-discrimination (ILO and OAS). Results: An operational corrective model is proposed, based on three axes of control: reinforced reasoning, effective legal defense, and adequate timeframes for appeals. The study also advances concrete instrumental proposals, such as the use of a reasoning test for the administration, judicial review of the sufficiency of justification with early disclosure of case files, the use of precautionary measures, and the development of a reintegration pathway for public servants over the age of 40. Conclusion: The use of the proposed standards corrects this dual harm, reduces institutional ageism, strengthens constitutional protection, and guides public policies aimed at the effective reintegration of public servants within the 40–65 age range.