The Ministerial Agreement No. 398, issued on 13 July 2006 by the Secretary of Labor, expressly prohibited the "dismissal of employees based on their health, suffering from HIV-AIDS". Nevertheless, on 20 April 2015, said Agreement was repealed in view of the publication of the Organic Law for Labor Justice, which included the concept of "discriminatory dismissal" to the Ecuadorian Labor Code, as a valid means to terminate labor relations, although subject to monetary penalties.
This conclusion is reached from the application of the legal method to solve antinomies, which allows us to identify which legal regulation is applicable when two laws are in conflict. Specifically, the rules of the Ministerial Agreement No. 398 oppose to the regulations laid down in the Organic Law for Labor Justice.
It is appropriate to make an evaluation of article 425 of the Constitution of Ecuador and the following ones, in accordance with article 3 of the Organic Law of Jurisdictional Warranties and Constitutional Control. These legal provisions provide that in case of conflict between rules of different hierarchy, the applicable rule would be the one with more hierarchy, the more competent one, or the more recent one.
The Organic Law for Labor Justice was published in the year 2015, while the Ministerial Agreement No. 398 was published in 2006, and, pursuant to article 425 of the Constitution of Ecuador, organic laws are superior than Ministerial Agreements.
Therefore, the Organic Law for Labor Justice is the rule that must be applied by any authority when a wrongful termination claim has been filed by a person with HIV-AIDS. Consequently, this type of labor dismissal may not be forbidden.
At most, when the claimant fulfils its obligation to prove that the dismissal was a consequence of his/her sickness, the authority may condemn the former employer to pay a special compensation equivalent to 12 times the last salary received, regardless of the ordinary fine for untimely dismissal.
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