Vulneración del derecho a la estabilidad laboral en la terminación de contratos ocasionales suscritos por mujeres embarazadas

Abstract

The purpose of this case study is to analyze the reality of the provision of occasional services for pregnant women in public institutions and the way in which this reality contrasts with the right to job security, recognized in the Constitution of the Ecuadorian Republic and in a particular way to the protection of this priority attention group. Despite the fact that currently there is a legal regulation called "Organic Law of Public Service" also known as LOSEP, which establishes limitations to this type of contract, determining a limit percentage which should not exceed twenty percent of occasional contracting of the total staff of the entity by public institutions. This study reveals violations of labor rights, mainly in one of the priority attentions groups such as pregnant or breastfeeding women; rights that constitutional and legal mandate must be guaranteed by the State, including non-observance in the application of the second paragraph of article 58. of the LOSEP, which establishes that the Public Entity must obtain authorization from the Ministry of Labor, in the event that percentages are required higher than those provided for in current labor regulations furthermore, the regulations referring to the transition from the occasional hiring system to the designation system with appointment by means of a merit and opposition contest are not observed, by disguising labor enlistment with an occasional contract for successive periods not contemplated in current regulations. In order to avoid the aforementioned non-observances, it is necessary to approve a regulation that sets the legal consequences that the successive celebration of occasional contracts in the public sector would cause. In addition, when carrying out the work, the general objective of analyzing the validity of the constitutional rights to employment stability of pregnant women with occasional contracts was fulfilled from the perspective of Ecuadorian constitutional jurisprudence. This problem was developed, where the alleged violations of constitutional rights related to permanence and job stability in the public sector were analyzed from a legal point of view, undermining the rights and guarantees expressed in International Treaties and our Constitution of the Ecuadorian Republic, linked to the reform of article 58. of the Organic Law of Public Service so that there is coherence in the protection for this group of priority attention given the reality that has been evident in the country. Evidence of the need to strengthen the corresponding regulations, since what is stated in our legislation has not been enough for these rights to be recognized and respected as such for workers and in particular for pregnant or lactating women who, according to our Magna Carta and other related norms are covered with priority attention and protection, whose duty of protection corresponds to the state in accordance with the provisions of Article 3. of the Constitution of the Republic of Ecuador and to the judges and other public officials to apply the rights directly.