In Ecuadorian labor law, the concept of constructive or disguised dismissal is not expressly defined in the Labor Code, but rather a doctrinal and jurisprudential construct that seeks to explain situations in which, although the formal termination of the employment relationship originates with the employee, the real cause of the termination is attributable to the employer’s conduct. This construct has been progressively developed by the National Court of Justice, albeit with clear limitations on its application.
Conceptually, constructive dismissal occurs when the employer commits serious breaches—such as non-payment of wages, unilateral changes to working conditions, or the creation of an environment incompatible with the continuation of the employment relationship—that compel the employee to terminate the relationship. Under this logic, the employee’s intent to terminate is vitiated by the employer’s conduct, which has led, in certain cases, to its effects being equated with those of wrongful dismissal.
However, recent case law shows a trend toward a more precise definition of this legal concept. In the ruling for case No. 18371-2021-00064, authored by Justice Enma Tapia Rivera, the National Court analyzed a case in which the employee filed a notice of termination and subsequently attempted to withdraw it, alleging the existence of a disguised wrongful dismissal. The ruling establishes that a notice of termination is a unilateral act that is perfected upon notification to the employer, without requiring acceptance, and therefore, the subsequent withdrawal has no legal effect. Consequently, the Court concludes that there was no wrongful dismissal, but rather a valid termination at the employee’s discretion.
This criterion is relevant because it limits the possibility of reclassifying any subsequent dispute as a disguised dismissal. Indeed, the Court prioritizes the legal nature of the extinguishing act, establishing that, once the eviction has been perfected, it is not possible to distort it through subsequent allegations, except for clear proof of defects in the will.
In its ruling in case No. 22301-2022-00465, authored by Justice María Consuelo Heredia Yerovi, the Court addressed a case in which the employer attempted to equate the employee’s request for approval—based on alleged breaches of contract—with wrongful dismissal, under the doctrine of constructive dismissal. The lower court had adopted this interpretation, even for the purpose of establishing an ineffective dismissal.
However, the National Court rejected this equation and clarified that the employee’s request for approval constitutes an independent form of termination of the employment relationship, expressly regulated in the Labor Code, distinct from wrongful dismissal. Even though Article 191 recognizes similar compensatory effects, this does not alter the legal nature of the procedure nor does it allow for the automatic extension of actions specific to wrongful dismissal, such as those related to ineffective dismissal.
Both rulings demonstrate a consistent line of jurisprudence, since, while the Court recognizes the importance of analyzing the material reality of the employment relationship and preventing simulations, it also establishes that constructive dismissal cannot operate as an open-ended category that displaces legally established forms of termination. In other words, the employer’s conduct may be relevant for compensation or legality review purposes, but it does not necessarily transform the legal nature of the termination.
In this context, constructive dismissal in Ecuador should be understood as a useful interpretive tool, but one subordinate to the current legal framework. For employers, this delimitation implies that, while they must avoid conduct that could generate contingencies, they also have jurisprudential support to uphold the validity of procedures such as notice of termination or the “approval of dismissal” when these have been properly executed and documented.
