The scope of ineffective dismissal has increased through many channels, from laws and ministerial resolutions to high court judgments. Here is explained what we have up to now in terms of workers covered by the irremovability principle.
Today, in the private sector, unilateral termination of the work relationship based on the employer's decision (dismissal) which falls upon (i) union leaders, (ii) pregnant women who have notified their status or it is noticeable, or (iii) the status associated with the condition of gestation or maternity would be ineffective. This last group includes female workers who enjoy maternity leave, nursing period, unpaid childcare leave, and even the dismissal that arises within 90 days following return from said leave.
Initially, ineffective dismissal associated with the condition of gestation or maternity was conceived as that which falls upon a female worker enjoying maternity leave (12 weeks), as it was the period having reinforced stability prior to the Labor Justice Act. However, all levels of government have separately wished to lend greater scope or clarity to this figure, thereby extending the periods and conditions in which dismissal is not permitted.
Ineffective dismissal was incorporated into our laws in April 2015, and just one month later, the Legislative Branch reformed the labor regulations with the Organic General Procedural Code; thereby protecting female workers during breastfeeding under the principle of irremovability. This scope is questionable from a constitutional viewpoint, considering that the Organic General Procedural Code reformed laws in several areas, including labor law, which is expressly prohibited by the Constitution of the Republic of Ecuador.
The Executive Branch, through the Minister of Labor, in August 2016, via ministerial resolution, extended the period for the protection of the mother-worker beyond the 12 months subsequent to birth, thereby determining as ineffective the dismissal occurring within the 90 days subsequent to the enjoyment of unpaid childcare leave. It is worth mentioning that the Minister of Labor acted beyond its purview, thereby extending the scope of an organic law through an administrative act of inferior hierarchy.
The National Court of Justice, through the Judicial Branch, in October 2016, stated that to adhere to the protection of the irremovability principle, the female worker must notify the pregnancy or the pregnancy be noticeable. This clarification makes sense because should the employer be uninformed of the pregnancy, said employer would not have gestation or maternity as grounds for dismissal.
It has been perceived that the scope of ineffective dismissal may vary in the future, not only through legal reform, but also due to decisions by branches other than the legislative branch, which have become proponents, capitalizing on the general mention made by the Labor Justice Law about ineffective dismissal "on the grounds of gestation or maternity."
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