CDD reglementés: Oui

Remarks

Article 11of Labour Code provides that employment contracts might be:
a) Express or tacit, and the first, written or verbal; b) For salary, salary, participation and mixed; c) For a fixed time, for an indefinite time, seasonal, eventual and occasional; d) Trial Period; e) For certain work, for task and piecework; f) By hitch; g) Individual, group or team.

Motifs autorisés de recours au CDD: aucune limitation

Remarks

Fixed-term contracts might be concluded for objective and material reasons or for no objective reason, but for a limited period: i) Fixed term contracts for permanent activities, however limited in time, from a minimum of 1 year to a maximum of 2 years (article 11c, 14 and 184 of Labour Code), ii) seasonal contracts for cyclic and discontinuous activities, repeated each season (article 11c and 17 of Labour Code) and the worker is entitle to severance payment if not hired for the next season, iii) eventual contracts to: a) replace a worker on vacation, illness, maternity leave or b) to attend an increase on demand of goods and services limited to 6 months within a period of 1 year (article 17 of Labour Code), iv) contracts to attend extraordinary non-core activities of the employer, limited to 30 days within a period of 1 year (article 17 of Labour Code), v) Contracts for specific work or service, which in its nature is of limited duration (article 16 of Labour Code).

Nombre maximum de CDD successifs: aucune limitation

Durée cumulée maximum de CDD successifs: 24mois

Remarks

Article 14 of Labour Code provides a minimum period of stability of one year, of any fixed-term or indefinite-time contract, that workers enter into with companies or employers in general, when the activity or work is of a nature stable or permanent, without for this circumstance the contracts for an indefinite time becoming term contracts, such workers must be considered for the purposes of this Law as stable or permanent.
The following are excepted from the provisions of the preceding paragraph: a) Contracts for certain work, which are not habitual in the activity of the company or employer; b) Eventual, occasional and seasonal contracts; c) Those of domestic service; d) Those for learning; e) Those held between artisans and their operators; f) Trial contracts; g) The others that the law determines.

Article 184 (2) establishes that in fixed-term contracts, the duration of which may not exceed two non-renewable years, its termination must be notified at least thirty days in advance, and if not, it will become an indefinite-time contract, except for the cases in which the nature of the contract is transitory (Article 170 of Labour Code).

Durée cumulée maximum de CDD successifs: aucune limitation

Remarks

Article 14 of Labour Code provides a minimum period of stability of one year, of any fixed-term or indefinite-time contract, that workers enter into with companies or employers in general, when the activity or work is of a nature stable or permanent, without for this circumstance the contracts for an indefinite time becoming term contracts, such workers must be considered for the purposes of this Law as stable or permanent.
The following are excepted from the provisions of the preceding paragraph: a) Contracts for certain work, which are not habitual in the activity of the company or employer; b) Eventual, occasional and seasonal contracts; c) Those of domestic service; d) Those for learning; e) Those held between artisans and their operators; f) Trial contracts; g) The others that the law determines.

Article 184 (2) establishes that in fixed-term contracts, the duration of which may not exceed two non-renewable years, its termination must be notified at least thirty days in advance, and if not, it will become an indefinite-time contract, except for the cases in which the nature of the contract is transitory (Article 170 of Labour Code).

Durée maximale de la période d'essai (en mois): 3 mois

Remarks

Article 15 of Labour Code - Trial contract.
(1) In any contract of those referred to in the first paragraph of the article 14, when it is held for the first time, a trial time may be concluded, with a maximum duration of ninety days. Once this term has expired, it will automatically be understood to continue in effect for the time remaining to complete the 1 year. Such a contract may not be concluded but once between the same parties.

(2) During the trial period, either party can freely terminate it.

(3) The employer may not simultaneously maintain workers with a trial contract for a number that exceeds fifteen percent of the total of its workers. However, employers that start operations in the country, or existing ones that expand or diversify their industry, activity or business, will not be subject to the fifteen percent percentage during the six months after the start of operations, expansion or diversification of activity, industry or business. In the case of expansion or diversification, the exemption of the percentage will not be applied with respect to all the workers of the company but exclusively on the increase in the number of workers of the new commercial or industrial activities.

Excluded from protection against dismissal: Non

Remarks

According to Article 15 (2) parties may freely terminate an employment contract during the trial period.

Obligation d'informer le travailleur des raisons du licenciement Non Motifs autorisés (licenciement justifié): tout motif légitime, conduite du travailleur

Remarks

Article 169 of Labour Code provides the reasons that enable the termination of the employment contract: 1. For the causes legally provided for in the contract; 2. By agreement of the parties; 3. For the conclusion of the work, period of labour or services object of the contract; 4. Due to the death or incapacity of the employer or termination of the contracting legal entity, if there is no legal representative or successor to continue the company or business; 5. Due to death of the worker or permanent and total incapacity for work; 6. By fortuitous event or force majeure that makes the work impossible, such as fire, earthquake, storm, explosion, plagues of the field, war and, in general, any other extraordinary event that the contractors could not foresee or that foreseen, they could not avoid it; 7. By the will of the employer in the cases of article 172 of this Code; 8. By will of the worker according to article 173 of this Code; and, 9. For resquest of the employee with previous notice (desahucio).

Articles 172 and 310 of Labour Code provide a list of just causes for dismissal which relate mainly to worker's misconduct and manifest professional inaptitude. In these cases, the employer can terminate the labour contract, prior approval (“visto bueno”) from the Labour Inspector (article 172 and 183 Labour Code). If approved, no severance payment shall be paid: 1) Repeated and unjustified lateness, absence or abandonment of the job for more than 3 consecutive days within a period of 1 month, 2) Indiscipline or gross infringement of employer´s internal rules (“Reglamento interno”) duly approved by the authority, 3) Immoral behaviour, 4) Gross disrespectful acts against the employer, relatives or representatives, 5) Manifest professional inaptitude for the required task or position, 6) Unjustified denunciation against the employer of its obligations before the Social Insurance, 7) Failure to comply with safety, preventive and hygienic measures required by law, rules or by the competent authority; or with medical prescriptions, 8) Reveal of manufacturing secrets or communications to the detriment of the employer, 9) Deceive the employer by means of false letters of recommendation or certificates when the contract was concluded.

Article 188 of Labour Code provides that when the employer dismisses without just cause and with no prior notice, it must pay severance payment and bonus for desahucio.

Motifs prohibés: grossesse, congé de matérnité, affiliation et activités syndicales

Remarks

Article 187 of Labour Code provides that the employer cannot unfairly dismiss the worker who is a member of the board of the workers' organization. If it did, it will compensate the worker with an amount equivalent to the remuneration of one year, without prejudice to continuing to belong to the board until the end of the period for which the worker was elected.
This guarantee will be extended during the time that the leader exercises the functions and one more year and will protect, equally, the leaders of organizations made up of workers from the same company, as well as those of workers made up of different companies, provided that in the latter case the employer is notified, through the labor inspector, of the election of the manager, who works under the worker´s dependency.

Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs, femmes enceintes ou en congé de maternité, travailleurs effectuant leur service militaire/service alternatif, travailleurs en congé temporaire suite à une maladie professionnelle ou un accident du travail

Remarks

Articles 153 provides that the employment contract cannot be terminated due to the pregnancy of the working woman and the employer cannot definitively replace her within the twelve-week period after the labour.

Article 174 provides special protection against termination of employment to: 1. For temporary incapacity for work due to the worker's non-professional illness, as long as it does not exceed one year; 2. In the event of absence motivated by military service or the exercise of compulsory public office; 3. Due to the absence of the worker based on the maternity or paternity leave, due to childbirth, is indicated in article 153 of this Code, without prejudice to the provisions of number 1.

In addition, article 452 provides that, except in the cases of article 172, the employer may not dismiss any of its workers, from the moment they notify the respective labour inspector that they have met in general assembly to form a union or works council, or any other workers' association, until the first directive is integrated. This prohibition covers all workers who have or have not attended the constituent assembly.

Forme de la notification du licenciement au travailleur: écrite

Remarks

According to article 184 (desahucio) of Labour Code, each party who decides to terminate the employment contract, must request that the Labour Inspector notify the other party about the intentions.

Indemnité compensatrice de préavis: Oui

Remarks

No statutory provisions for prior notice for individual dismissals, however the article 184 of Labour Code determines the payment of 25% of desahucio (eviction) bonus, for each year of lenght of service, in case of an unfair dismissal.

Notification à l'administration publique: Oui

Remarks

In cases involving dismissals for misconduct or just cause, the employer must seek approval by the Labour Inspector.
Article 188 provides that when the employer leaves a written record of its willingness to unilaterally terminate an individual employment contract, that is, without just cause, the labor authority that is aware of the dismissal, will order the employer to appear, and to ratify this in fact, In the next forty-eight hours, he must deposit the total amount corresponding to the dismissed worker for compensation.
If the employer in the indicated appearance is not ratified in the constant dismissal in the pertinent writing, alleging for the effect that the writing in which the dismissal appears is not his or that of representatives of the company with the capacity to terminate the labor relations , the immediate reinstatement of the worker to his work will be arranged.

Notification aux représentants des travailleurs: Non

Autorisation de l'administration publique ou d'un organe judiciaire: Oui

Remarks

The employer that desires to dismiss a worker for any of the reasons established by article 172 of Labour Code must file a request before the Labour Inspector., who will will qualify the request for prior approval and notify the worker, who may oppose to the request formally. The Labour Inspector might determine an investigation at the workplace, after which the final resolution, granting or rejecting, the prior approval (“visto buenou201d) will be issued (articles 172, 545 (5), 621 and 622 Labour Code). Upon request of the employer, the Labour Inspector may determine the temporary suspension of the employment contract for one month while the procedures take place, since the amount related to the respective salary is deposited. If the Labour Inspector decides to reject the prior approval, the deposit shall be reverted in benefit of the worker, who might also be reinstated or be entitled to the payment of indemnities corresponding to unfair dismissal (“despido intempestivou201d).

Accord des représentants des travailleurs: Non

Notes / Remarques

Notes

No statutory provisions for prior notice for individual dismissals. Article 193 of Labour Code, however, provides that a 30 days prior notice must be given in cases of dismissals due to business closing.
As well, article 184 (2) provides that in fixed-term contracts, the duration of which may not exceed two non-renewable years, its termination must be notified at least thirty days in advance, and if it does not do so, it will become an indefinite-time contract.
Regardless the existence of statutory provisions on notice periods, the article 184 of Labour Code determines the payment of 25% of desahucio (eviction) bonus, for each year of lenght of service, in case of an unfair dismissal.

Définition du licenciement collectif (nombre d'employés concernés): Although there is no specific definition of collective dismissals, article 193 of Labour Code provides employers that are going to definitively liquidate their businesses will give workers notice one month in advance, and this announcement will have the same effects as eviction. If due to the liquidation of businesses, the employer terminates the labour relations, it must pay the unemployed workers the bonus and compensation provided for in articles 185 and 188 of this Code, respectively, without prejudice to what the parties have agreed upon in collective bargaining.

Consultation préalable des syndicats (représentants des travailleurs): Non

Notification à l'administration publique: Non

Notification aux représentants des travailleurs: Non

Autorisation de l'administration publique ou d'un organe judiciaire: Non

Accord des représentants des travailleurs: Non

Règles de priorité pour l'ordre des des licenciements collectifs (situation sociale, âge, ancienneté): Non

Obligation de l'employeur d'examiner des solutions alternatives au licenciement (transferts, formation...): Non

Règles de priorité de réembauche: Oui

Remarks

Article 193 of Labour Code provides that If the employer reopens the same company or business within a period of one year, either directly or through an intermediary, he is obliged to admit the workers who served him, in the same conditions as before or in better conditions.

Indemnité de licenciement:

Remarks

According to articles 185 and 188 of Labour Code, severance pay shall be paid considering lenght of service:
1) Up to three years of service, with the value corresponding to three months of remuneration; and,
(2) Over three years, with the value equivalent to one month of remuneration for each year of service, without in any case that value exceeding twenty-five months of remuneration.

Bonus for “desahucio” is due in the amounts to 25% of last monthly salary per year of service (which would be paid in case of desahucio according to article 184 of Labour Code).

If dismissal is for an alleged just cause but the prior approval (“visto bueno”) of Labour Inspector is denied, then an additional amount of one monthly salary deposited by the employer is paid to the employee, in addition to severance pay and bonus for desahucio. This situation only applies if the employer requests the suspension of the employee during the prior approval (“visto bueno”) procedure.

ancienneté ≥ 6 mois: 1 mois

ancienneté ≥ 9 mois: 2 mois

ancienneté ≥ 1 an: 3 mois

ancienneté ≥ 4 ans: 6 mois

ancienneté ≥ 5 ans: 7 mois

ancienneté ≥ 10 ans: 12 mois

ancienneté ≥ 20 ans: 22 mois

Indemnité de licenciement pour motif économique:

Remarks

There is no specific provisions concerning redundancies, but in case of dismissals generated by closure of enterprises, the employer must pay severance compensation for unjustified dismissal (despido intempestivo) and the indemnity correspondent to desahucio (articles 185, 188 and 193 of Labour Code).

ancienneté ≥ 6 mois: 1 mois

ancienneté ≥ 9 mois: 2 mois

ancienneté ≥ 1 an: 3 mois

ancienneté ≥ 2 ans: 4 mois

ancienneté ≥ 4 ans: 6 mois

ancienneté ≥ 5 ans: 7 mois

ancienneté ≥ 10 ans: 12 mois

ancienneté ≥ 20 ans: 22 mois

Notes

Article 188 of Labour Code provides rules for unjustified dismissal (“despido intempestivo”), providing that no prior notification is given.
According to the labour law of Ecuador, desahucio is a notice to be given when either party terminates the employment agreement without providing just cause for the termination. The party who decides to terminate must request a Labour Inspector to notify the other party about the termination, according to articles 184, 545 (5) and 624 of Labour Court).

Compensation pour licenciement injustifié - montant librement déterminé par la cour: Non

Compensation for unfair dismissal - Are there legal limits?: Oui

Compensation pour licenciement injustifié - limites légales (plafond en mois ou methode de calcul définie): In case of unjustified dismissal, severance payment and bonus for desahucio should be paid by the employer. According to articles 185 and 188 of Labour Code, severance pay shall be paid considering lenght of service:
1) Up to three years of service, with the value corresponding to three months of remuneration; and,
(2) Over three years, with the value equivalent to one month of remuneration for each year of service, without in any case that value exceeding twenty-five months of remuneration.

Bonus for “desahuciou201d is due in the amounts to 25% of last monthly salary per year of service (which would be paid in case of desahucio according to article 184 of Labour Code).

If dismissal is for an alleged just cause but the prior approval (“visto buenou201d) of Labour Inspector is denied, then an additional amount of one monthly salary deposited by the employer is paid to the employee, in addition to severance pay and bonus for desahucio. This situation only applies if the employer requests the suspension of the employee during the prior approval (“visto buenou201d) procedure.

Possibilité de réintégration dans l'emploi: Oui

Remarks

Although article 14 of Labour Code provides job stability for employees during the first year of employment, there is no provision of reinstatement in the case of unfair dismissal. In case of dismissal with just cause, if the Labour Inspector rejects the request for prior approval (“visto buenou201d), an order of reinstatement might be issued. If theit ill have to pay indemnities corresponding to unfair dismissal, according to article 622.
For all the situations in which there is a special protection against dismissals to the workers, reinstatement is possible, but the employer might choose to pay the corresponding compensation instead.

Conciliation préalable obligatoire: Oui

Remarks

According to article 576 of Labour Code - Preliminary conciliation hearing. Once the demand has been presented and within two days after its reception in court, the judge will classify the demand, order that the defendant be summoned, giving him a copy of the demand and summon the parties to the preliminary hearing of conciliation, answer to the demand and formulation of evidence, previously verifying that the summons has been complied with, a hearing that will be held within twenty days from the date the demand was qualified. In this preliminary hearing, the judge will seek an agreement between the parties that, if it occurs, will be approved by the judge in the same act by means of a judgment that will be enforceable. If conciliation is not possible, at this hearing the defendant will answer the demand. Without prejudice to his oral presentation, the defendant must present his answer in written form.

Courts ou tribunaux compétents: tribunal du travail

Remarks

According to Art. 568 of Labour Code - Jurisdiction and jurisdiction of labor judges.- Labour judges exercise provincial jurisdiction and have exclusive jurisdiction to hear and resolve individual conflicts arising from employment relationships, and which are not subject to the decision of another authority.

Règlement des litiges individuels par arbitrage: Oui

Remarks

According to article 188 of Labour Code, monetary compensation respective to termination of employment might be increased if parties decide to reach an agreement before Arbitration Tribunals.

Charge de la preuve: les deux

Remarks

Articles 577 and 593 of Labour Code.