La aplicación del principio de la carga dinámica de la prueba en el proceso laboral sumario.

Abstract

This paper analyzes the application of the principle of dynamic burden of proof in Ecuadorian summary labor proceedings as a mechanism to correct the asymmetry between employer and employee. It begins with the traditional rule of onus probandi and its inadequacy in the face of the material inequality between the parties. Based on the doctrines of Peyrano (2008, 2023), Picó i Junoy (2020), Devis Echandía (2002), and Nieva Fenoll (2022), it argues that the burden of proof should fall on the party in the best technical, factual, or professional position to produce it. Article 169 of the General Organic Code of Procedures, while incorporating the principle of the dynamic burden of proof, is currently worded generically and does not establish objective criteria for labor matters. This creates legal uncertainty when the employer fails to respond to the claim or responds by simply denying the factual and legal grounds of the claim, relying on the second paragraph of the same article. This practice by certain employers has hindered access to the truth in legal proceedings. Through comparative law with Colombia (Article 167 of the General Procedural Code) and Spain (Article 217 of the Civil Procedure Law), it is demonstrated that other legal systems already expressly regulate the dynamic burden of proof based on criteria of availability and ease of proof. It is concluded that the failure to develop this principle violates the procedural equality enshrined in Article 11.2 and Article 76.7.h. of the Constitution of the Republic of Ecuador, and the principle of in dubio pro operario in Article 326.3 of the Constitution of the Republic of Ecuador. Therefore, it is proposed to amend Article 169, paragraph 3 of the General Organic Code of Procedures, incorporating objective parameters and the presumption of certainty in the face of unjustified failure to provide evidence, thus guaranteeing equitable administration of justice in labor contexts.