La terminación del contrato individual de trabajo por caso fortuito o fuerza mayor : ¿vulnera el derecho fundamental al trabajo?.

Abstract

The purpose of this research is to analyze one of the most controversial issues in Ecuadorian Labor Law, such as the termination of the individual labor contract due to unforeseeable circumstances or force majeure, specifically if that cause, recognized in the Ecuadorian Labor Code, violates the fundamental right to work. For the development of the aforementioned topic, the perspectives of two of the most prestigious thinkers on fundamental rights are taken into account: Luigi Ferrajoli and Robert Alexy. Ecuadorian jurisprudence is also examined and, in a special way, are examined the legal norms related to the mentioned cause issued due to the pandemic caused by the SARS-CoV-2. Thus establishing that although there is no absolute response, the pandemic produced by SARS-CoV-2 and the measures that the government had to take to confront it do seem to constitute a cause of force majeure, but their scope is not enough to justify the termination of the employment relationship. Ecuador does not have a vast development of the subject, so it requires legislative work that, particularly in relation to the cause of termination of the employment contract due to force majeure or unforeseeable circumstances, on account of a legal regime that adequately protects the fundamental right to work, in extraordinary contexts of force majeure such as the pandemic caused by SARS-CoV-2.