The Principle of Special Reinforced Employment Stability and the Shifting Burden of Proof Rule in Cases of Discriminatory Wrongful Dismissal

Abstract

The nature of the legal relationship that exists between employer and worker, per se, is asymmetric, there is a weak party un this case the worker due to his position as subordinate. However, if the worker is in a position of vulnerability, likewise a pregnant person, handicapped or a person who is suffering from catastrophic illnesses, the Law has dated the worker from the guarantee of
special job stability, granting the person a greater compensation in the event of an untimely dismissal. Despite what has been said, the Constitutional Court of Ecuador has provided that these groups of people in a state of vulnerability are generally victims of discrimination, since their condition, per se, frames them in at least one of the suspicious categories of article 11 Numeral 2 of the
Constitution of the Republic being prone to victims of discrimination, therefore, it has created the figure of special reinforced labor stability so that, with application in conjunction with the principle of the Mobility of the Burden of Proof, it is the employer who must prove with logical, valid and objective criteria that the dismissal was not due to a discriminatory action, otherwise it will be presumed that it was, thus inverting the burden of proof against the employer. This study is focused on analyzing the relevance of applying the constitutional precedents on the Mobility of the Burden of Proof to the worker’s controversies subject to the Labor Code.

Keywords
Onus Probandi, Mobility of the Test Burden, Untimely dismissal, Discrimination, Suspicious Categories, Reinforced Labor Stability.