Labor Law: Contract Termination and Legal Exceptions

Flashcards covering key concepts of Ecuadorian Labor Law including reserve funds, severance payments for dismissal (desahucio and despido intempestivo), and procedural requirements for responding to lawsuits and exceptions under the COGEP.

What is the definition of the Reserve Fund (Fondo de Reserva) in Ecuador?

It is a monetary benefit available to all workers under a dependency relationship, consisting of a sum equivalent to one month's salary for every full year worked after the first year.

According to Art. 196 of the Código de Trabajo, when does a worker gain the right to the Reserve Fund?

The right is gained once the worker has provided services for more than $1$ year.

What percentage of their salary does an affiliate receive monthly as a Reserve Fund since the 2009 legal reform?

The worker receives $8.33\%$ of their salary directly on a monthly basis, unless they request the IESS to continue administering it.

Under what conditions can an affiliate withdraw accumulated Reserve Funds from the IESS?

If they have $36$ or more monthly contributions, have been unemployed for $2$ months or more, or have reached the minimum retirement age.

What is 'Desahucio' according to Art. 184 of the Código de Trabajo?

It is the written notice by which one party informs the other of their will to terminate the labor contract.

What is the notice period required for desahucio in fixed-term contracts to avoid them becoming indefinite?

A minimum of $30$ days of anticipation is required.

How is the 'Bonificación por desahucio' calculated under Art. 185?

The employer must pay the worker $25\%$ of the equivalent of the last monthly remuneration for each year of service provided.

What is 'Despido Intempestivo'?

It is the unilateral and unjustified termination of the labor relationship by the employer without prior notice, depriving the worker of labor stability.

How is the indemnity for Despido Intempestivo calculated for a worker with up to $3$ years of service?

The worker is entitled to an amount equal to $3$ remunerations based on the last complete monthly salary received.

What is the indemnity rule for Despido Intempestivo for workers with more than $3$ years of service?

They receive $1$ remuneration for every year of work, not to exceed $25$ remunerations, where a fraction of a year is considered a full year.

According to Art. 151 of the COGEP, how must a demand be answered?

The answer must be in writing, pronouncing expressly on each pretension of the actor, the veracity of facts, and the authenticity of evidence, indicating categorically what is admitted or denied.

What are 'Excepciones Previas' in the context of the COGEP?

Legal defenses that the defendant files in their written response to the demand to impede the action from being admitted to trial or to correct procedural defects.

What is the purpose of 'Saneamiento Procesal'?

It is a procedural phase where the judge resolves issues of validity or invalidity by examining exceptions to avoid future nullities or unnecessary procedural delays.

Define 'Excepciones de Fondo' (Substantive Exceptions).

Defenses that attack the substantive right on which the plaintiff's claim is based, seeking to destroy the effect of the pretension in the final sentence.

What is meant by 'Excepciones Mixtas'?

Also called peremptory exceptions filed as preliminary articles, they function procedurally as dilatory but, if accepted, have the effect of peremptory exceptions (e.g., res judicata/cosa juzgada or transaction).

What is the 'Modo Normal' (Normal Mode) of concluding a process according to the COGEP?

The sentence, which is the act by which the judge resolves the controversies and puts an end to the litigation.

What are the 'Formas Extraordinarias' (Extraordinary Forms) of concluding a labor process?

Conciliation, transaction, withdrawal of the demand (retiro de la demanda), dismissal (desistimiento), and acceptance (allanamiento).

What is 'Retiro de la Demanda' and when is it applicable?

It is an act by the plaintiff to withdraw the lawsuit before the defendant has been served (citación), returning things to the state they were in before the filing.

What is 'Allanamiento' in a legal process?

The act where the defendant expressly recognizes the validity of the plaintiff's action and accepts the pretensions, resulting in the termination of the process.

Is 'Abandono' (Abandonment) applicable in labor cases under the 2019 reform to Art. 247 of the COGEP?

No, abandonment does not apply in cases involving labor rights of workers.

Who is considered an employer according to Art. 10 of the labor code?

The natural or legal person/entity on whose account or order the work is executed or to whom the service is provided.

Under Art. 36 of the labor code, who are considered representatives of employers?

Directors, managers, administrators, ship captains, and generally those who exercise direction and administration functions in the name of their principals.