Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
October - December 2023. e-ISSN 2550-6862. pp 57-71
DOI https://doi.org/10.31876/er.v6i44.851
The occasional contracts of the LOSEP are a form of
labor precariousness in the health sector
Los contratos ocasionales de la LOSEP una forma de precarización laboral
en sector salud
Franklin Roger Miranda Romero*
Ana Cristina Pachano Zurita*
Received: July 12, 2023
Approved: September 09, 2023
Abstract
In public health, i.e., in hospitals or health centers, occasional
contracts are usually issued for new personnel. However, this
type of contracting violates several inherent principles of the
workers, causing labor and family instability. This form of
contracting does not strengthen the stability of the worker; on
the contrary, it generates precariousness, since it does not
provide the security and opportunities that those professionals
with an appointment have. For this reason, the general
objective of the following research is to analyze the figure of
occasional contracting as a factor affecting job security in the
public health sector. The study seeks to know the scope of the
occasional contracts of the Organic Law of Public Service
(LOSEP) as a form of labor precariousness which will form a
kind of inequity and discrimination of professional staff
working within this modality compared to the benefits that
have the permanent appointment, which is achieved through
a qualitative methodological approach with methods such as
analytical-synthetic, historical-inductive and logical.
Keywords:
contracts, labor, casual, precariousness.
Cite this:
Miranda, F., Pachano, A. (2023).
Los contratos ocasionales de la
LOSEP una forma de precarización
laboral en sector salud.Espirales
Revista Multidisciplinaria de
investigación científica, 7 (47),
* Estudiante De Derecho, Universidad
Indoamérica.
mfranflin@indoamerica.edu.ec
https://orcid.org/0000-0002-2587-1588
* Abogada De Los Juzgados Y Tribunales De
La República Del Ecuador, Magister en
Derecho Laboral y Seguridad Social,
Abogada en Libre Ejercicio, Docente
Universidad Indoamérica,
anapachano@uti.edu.ec
https://orcid.org/0000-0003-0677-7593
The occasional contracts of the LOSEP are a form of labor precariousness in the health sector.
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
October - December 2023. e-ISSN 2550-6862. pp 57-71
58
Introduction
The minimum term of the employment relationship through occasional contracts
generates uncertainty at a personal and family level, due to the imminent termination
of a worker; being one of the main concerns, the economic support of the household.
The research will break down the issues related to the occasional contracts of the
LOSEP that fall into a form of labor precariousness in the health sector, to determine
the mechanisms by which these denominating entities should strengthen the creation
of competitive examinations and merits proposed within the Ministry of Labor at the
national level.
In this way, the aim is to reduce the precariousness of labor in which professionals hired
in the Ecuadorian health sector find themselves. Thus, the rights of the worker, as well
as those of public servants, will be key concepts to understand the content and
application of occasional contracts of this type.
The State, through the Ministry of Health, will be in charge of hiring processes, whether
occasional or through competitive and merit-based examinations. The first type of
hiring is the most used mechanism, representing a quarter within these processes;
Resumen
En la salud pública, es decir, en hospitales o centros de salud,
habitualmente se expiden contratos ocasionales para su nuevo
personal. Sin embargo, este tipo de contratación vulnera
varios principios inherentes de los trabajadores ocasionando
inestabilidad laboral y familiar. Esta forma de contratación no
fortalece la estabilidad del trabajador, al contrario, genera
precarización, ya que no brinda la seguridad y oportunidades
que poseen aquellos profesionales con nombramiento.
Siendo este motivo, el objetivo general de la siguiente
investigación que es analizar la figura de contratación
ocasional como factor de afectación en la seguridad laboral
dentro del sector de la salud pública. El estudio busca conocer
el alcance que tienen los contratos ocasionales de la Ley
Orgánica de Servicio Público (LOSEP) como una forma de
precarización laboral lo que va formar una especie de
inequidad y discriminación del personal profesional que
labora dentro de esta modalidad en comparación con los
beneficios que tienen los de nombramiento definitivo, lo cual
se logra a través de un enfoque metodológico cualitativo con
métodos tales como el analítico- sintético, el histórico –
inductivo y lógico.
Palabras clave:
contratos, laboral, ocasionales, precarización.
Franklin Roger Miranda Romero, Ana Cristina Pachano Zurita
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
October - December 2023. e-ISSN 2550-6862. pp 57-71
59
which reflects an inefficient system that, in its effect, causes job insecurity and instability,
as workers are disengaged from their positions directly and immediately (Salazar, 2019).
Occasional contracts produce two problems: instability among civil servants and a drain
on state resources (Abad, 2020). Within this framework, the LOSEP would not be linked
to the precepts of the Constitution of Ecuador because it only guarantees the rights of
public servants, whose contracts are of long duration or indefinite (Valencia, 2021).
Ecuador is a Constitutional State in which rights and justice are intended to prevail,
however, it does not provide labor stability to certain public servants covered by
occasional contracts. Despite having the legal obligation, it does not comply with the
provisions of Articles 33 and 327 of the Constitution of Ecuador (2008) that refer to
work as a right and the prohibition of labor precariousness, respectively.
According to article 13 of our Constitution of the Republic of Ecuador, it is the
obligation of the State to provide the fundamental rights to the people, one of them
and the one that has to do with the present topic, is the food support, same that has
concordance with our labor code in which it is indicated that the workers have rights
that are unrenounceable. For this reason, it is important to indicate that, in the history
of labor matters, the objective is to guarantee economic income in a direct manner,
with the purpose of adequately satisfying family needs with a decent salary, in exchange
for a job.
Despite this, at present, people hired in public institutions who provide occasional
services live in a deep, unjustified, illegitimate and unconstitutional labor instability,
thus causing them a social, economic and also psychological problem, because at the
end of the contract they have to wait with uncertainty whether or not the contract will
be renewed (Jara, 2021).
According to our Constitutional Court (2015), through the issuance of occasional
contracts for the provision of services, the worker is not offered job stability, let alone
an advancement in his or her administrative career within the institution. Similarly,
benefits are not perceived, nor the same opportunities as someone who has an
appointment. This is also found in a part of Article 58 of the LOSEP (2010) which states:
Public servants subject to this type of contract will not enter the public service
career, for the duration of their contract.
For those employees who have signed this type of contract, leaves of absence
and service commissions with or without remuneration will not be granted for
regular or postgraduate studies within the working day, or to provide services
in another institution of the Public Sector.
This type of contract, by its nature, in no way represents employment stability,
nor an acquired right for the issuance of a permanent appointment, and may be
terminated at any time (...).
The occasional contracts of the LOSEP are a form of labor precariousness in the health sector.
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
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The preceding arguments are an account of what was established as the motive of this
work. Labor precariousness is a fact when it comes to occasional contracts, since there
is no solidity in terms of working conditions; in addition, benefits are lower. This implies
a dehumanization of the worker, since he/she is only approached as a disposable
element within the public system. In this sense, it is imperative that all human talent
units of the entities make plans for social restitution and not only labor restitution.
Materials and methods
The study adopted a qualitative methodological approach, aimed at understanding and
analyzing in depth the experiences, perceptions and contexts in which health
professionals operated under the figure of occasional contracting. In addition, an
exhaustive documentary review focused on the Organic Law of Public Service (LOSEP)
and other relevant regulatory frameworks was conducted to identify the legal bases and
guidelines governing contracting in the public health sector.
The analysis employed an analytical-synthetic approach, breaking down the information
to identify key elements and then synthesizing it into relevant categories and themes.
Using the historical-inductive method, the evolution of casual contracting in the public
health sector was examined over the years, with the aim of identifying patterns and
trends. The logical approach made it possible to establish causal relationships and
correlations between casual contracting and its implications for the job security and
stability of professionals.
Results
History shows that conflicts of interest are present in the relationship between the
employer and the worker, since the former requires occasional labor, while the latter
requests a paid and, if possible, secure job. To achieve this objective, the employer
makes use of the State, which has power within the country's economy. This makes the
worker the weakest link in the chain, especially when it comes to occasional contracts.
It was precisely this dynamic that led to the creation of the LOSEP, a law whose purpose
was to regulate the public service, especially the Ministry of Health, in terms of salaries
and human resources, due to the lack of clarity and effectiveness in the application and
resolution of the legal norm. In order to respond to the highest demands of society,
through a transparent, efficient, effective and good quality public service.
An antecedent to the LOSEP is the so-called Organic Law of Civil Service and
Administrative Career, enacted in 2005, which will contemplate the areas of human
resources and hiring with the purpose of strengthening a technical system of
administrative resources with emphasis on the professionalization of public servants, in
order to improve the effectiveness and efficiency of state institutions. This law addresses
some issues, among the most important of which are the requirements for job
placement and, the one that concerns the subject in question, occasional hiring based
on the Law of Personal Services by Contract enacted in 1973, issued by supreme decree.
Franklin Roger Miranda Romero, Ana Cristina Pachano Zurita
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
October - December 2023. e-ISSN 2550-6862. pp 57-71
61
On the other hand, due to the pandemic of the COVID-19 virus, the National Assembly
enacted the Organic Law of Humanitarian Support which in its Article 25 talks about the
so-called stability of the workers of our health entities:
As an exception, and for this occasion, health workers and professionals who have
worked during the coronavirus health emergency (COVID-19) with an occasional
contract or provisional appointment in any position in any health care center of the
Integral Public Health Network (RIPS) and its respective complementary networks, after
the merit and opposition contest, will be declared winners of the respective public
contest, and consequently will proceed with the immediate granting of the definitive
appointment (2020).
This article explains it as follows: the merits will have a score of 50% corresponding to
the degree that must be duly recognized by the so-called Secretariat of Higher
Education, Science, Technology and Innovation (SENESCYT), only for the duly verified
profiles that apply and within the prerequisites for hiring. While, the part of the
opposition will also have a score of 50% that will be assigned with the due presentation
of the occasional contract or a provisional appointment duly notarized that is registered
in the Integral Health Network.
In spite of this, sentence No. 18-21CN/21 declared Article 25 of the Humanitarian Law
unconstitutional because it did not have the necessary technical or economic support
for its application (Constitutional Court, 2021).
Occasional contracts have their own characteristics, one of which is the duration. That
is to say, if the duration of the contract exceeds the limit of twelve months established
in art.58 of the so-called LOSEP law (2010), it means that this public service entity has
made the worker's right precarious, through the abuse of this type of contractual
modality, which is detrimental to the worker's realization as a human being.
As a consequence, the characteristic of the State foreseen in Art. 1 of the norm that is
the Constitution (2008), which refers to the State as guarantor of rights and justice, is
disrupted. This is due to the lack of application of the constitutional principles found in
Art. 11 (2008) of the Constitution, which states that "all persons are equal and shall
enjoy the same rights, duties and opportunities" and is represented as a tool for the
optimization of human rights.
What is meant is that the right to equality implies the creation of a modern society that
will respect in all its dimensions the dignity of individuals and also of collectivities, where
justice and equity, as well as freedom, peace, independence, solidarity, territorial
integrity and good living must prevail. Thus, it will ensure the right to life, culture, work,
social justice and education.
Under the content of the LOSEP (2010), and the nature of the so-called occasional
contracts and the institutional needs that public entities must have, they have the power
to hire under the modality, as well as to terminate the existing employment relationship
The occasional contracts of the LOSEP are a form of labor precariousness in the health sector.
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
October - December 2023. e-ISSN 2550-6862. pp 57-71
62
unilaterally, when there are sufficient reasons that are provided for in the law and
regulations. If this time is extended, a precariousness of the right to work arises.
In other words, the celebration of several occasional contracts breaks the rule stipulated
by the LOSEP. For this reason, the Constitutional Court of Ecuador in its decision 296-
15-SEP-CC established that the authorities of the Ministry of Health misused the
occasional contracts by exceeding their duration, creating situations of labor
precariousness.
The Ministry of Health, through its officials, repeatedly enters into occasional contracts
and does not pay attention to their consequences. Thus, the right to work becomes
precarious and contraventions are generated with respect to public order regulations,
as opposed to the so-called human rights. Although the entity does not have the
authority to misapply the law, this will affect its image and consolidation, since the
certain labor expectations of its workers are not satisfied because they do not have the
opportunity to compete and get a secure job.
These facts always represent an abuse of authority that will violate the legal security
provided in Art. 82 of the Constitution (2008) which states that members of society must
use the Ecuadorian State for the application of internal and supreme regulations. That
is, human beings from birth enjoy prerogatives that are in human nature such as
innocence, freedom, dignity, and life, among them we find legal certainty which is one
of the most precious goods of the State and must be guaranteed to citizens. In this
sense, the Constitution demands respect for and compliance with legal certainty.
The Constitution (2008) enacts, "work is a right and a social duty, and an economic right,
source of personal fulfillment and basis of the economy" in its (art. 33). The legal system
in Ecuador will recognize and also guarantee the right to work with dignity in all its forms
with all that it implies, that is, rights and obligations of the parties, to provide a decent
life for citizens. This article is complemented by the so-called Andean Charter (2002)
which defines professional work as "an opportunity to enjoy a dignified life and satisfy
personal and family interests such as clothing, food and housing" (art. 24).
Similarly, the Constitution of Ecuador guarantees non-discrimination and integration in
relation to labor rights. This implies that Ecuador is a country that, at a legal level, offers
its citizens a decent life based on "the opportunity to earn a living through a freely
chosen or accepted job" (Maldonado, 2022). However, there is still a lot of work to be
done, because although the regulations indicate certain rights for workers, there are
public institutions that do not apply them and violate the worker.
The disadvantage that the worker has with respect to the employer is still notorious.
According to Rangel (2022), labor law is of a protectionist nature since, within the labor
relationship, the worker does not have the same aptitudes to be able to compete with
the employer. In this way, and from any kind of conflict, the party that is harmed will be
the worker, and for this reason the State has the obligation to protect the labor welfare
of the weakest.
Franklin Roger Miranda Romero, Ana Cristina Pachano Zurita
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
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Additionally, Salazar (2019) indicates that the right to work in its fair conceptualization
is an efficient mechanism for overcoming poverty, because to the extent that there is
more employment or decent work, families will have better income and access to goods
and services that can exclude them from the condition of poverty.
Meanwhile, labor law is a branch of law that regulates the relations of human beings
within the scope of their work, i.e. the function as such that they perform in a relationship
of dependence, with individual and collective consequences for the general progress
of the people (Balbín, 2022).
Thus, we can say that the right to work, characterized by being inherent to the human
being, is a priori duty of the State as the main guarantor of rights and that, in addition
to guaranteeing its access, it must pursue sufficient means to make it a channel for the
satisfaction of needs, so that, in this way, the dignified life, well-being and security of
the human being are strengthened.
At present, public sector entities do not stabilize the professional and this affects the
institution due to the high turnover of personnel, in this sense the resources of the State
are worn out, since the personnel, occasionally hired, who have already adapted to their
functions are separated from the institution when their contract is not renewed, "with
which the State enters a circle of constant renewal and waste of resources" (Abad, 2020).
In Ecuador, there is evidence of late progress with respect to labor rights. Although the
Constitution will guarantee the right to work and the protection of public sector
employees, there is little or no control or agreement in practice. Because each process
of job creation is carried out according to the government of the day. In this way, a
centralism is favored in which the priority is given to the supporters of the government
in power, which is the reason for the creation of secretariats and ministries that, at most,
will provide a job position for a period of twelve months or a maximum of twenty-four
months under the modality of occasional contract. This transforms the labor
environment into a field of uncertainty for stability. This process contradicts Article 326
paragraph 5 of the Constitution of the Republic of Ecuador (2008), which relates to the
generation of a decent work environment.
The situation worsens when the National Assembly during the year 2010 enters into
force the Organic Law of Public Service (LOSEP) that comes to try to improve the right
to stability of public servants, but as indicated, leaves in the hands of the always efficient
public administration the responsibility of hiring occasionally, applied in a discretionary
manner according to the will of the politicians in office, which in the LOSSCA an already
repealed law did not contemplate this type of contract.
According to Article 227 of the Constitution, public administration is a service provided
to the community and is governed by principles of quality, hierarchy, efficiency,
deconcentration, coordination, planning, decentralization and evaluation.
According to Article 229, paragraph 2 of the Constitution of Ecuador, the law must
define the body that will be responsible for human resources and remunerations that
The occasional contracts of the LOSEP are a form of labor precariousness in the health sector.
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
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govern the entire public service sector, which, in turn, regulates promotions, incentives,
discipline, stability and termination of functions.
Article 3 of the Organic Law of Public Service states that the provisions of this law apply
to remuneration and human resources in the public administration, including the
Ministry of Public Health (MSP), and are subject to the provisions of the Ministry of Labor
Relations.
Article 51 paragraph a) of the LOSEP will indicate that within the competencies of the
Ministry of Labor Relations is to exercise the leadership in remunerations of the so-called
public sector and also to issue the technical norms for human resources in accordance
with the law.
Article 56 of the LOSEP determines that the so-called Human Talent units are the ones
that will elaborate the annual planning of human talent according to their respective
programs and plans. These processes will be executed for the coming year to be
approved 30 days prior to the budget proforma.
According to Article 57 of the LOSEP, its objective is to regulate the creation of posts
in the institutions it governs.
Article 115 of the Organic Planning and Public Finance Code establishes that no entity
of the sector may enter into commitments or contracts without a budgetary certification
of finances issued by this public entity.
Article 143 of the LOSEP states that the payroll entity may enter into occasional
contracts with a favorable report from the Human Talent Administration Unit (UATH),
which must justify the need for the occasional work with a certification of the
requirements fulfilled according to the LOSEP and its regulations. This certification will
allow to know if there are due economic resources with the corresponding item that
would be linked to the budget, but it must also be observed that this hiring does not
increase the wage bill. UATH will be responsible from the very beginning for the new
personnel to be hired, including the induction process.
The so-called public servants are those who are assigned a position to meet the priority
needs of the population; always with the objective of safeguarding the collective
interests in an appropriate manner. Muñoz (2020) defines them as "a natural person
who provides personal services to a State entity for the purpose of receiving
remuneration" (p.6).
The Ecuadorian Constitution (2008) establishes the following with respect to the so-
called public servants: "all persons who in any way or in any capacity work, provide
services or exercise a position, function or dignity within the public sector shall be public
servants" (art. 229).
Public servants acquire obligations and rights, as well as personal commitments when
they are hired by the State. These workers offer their personal, lawful services under the
concept of a retribution with the same rights as appointed employees, but without
having stability. Therefore, a relationship of dependence and subordination is created,
Franklin Roger Miranda Romero, Ana Cristina Pachano Zurita
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
October - December 2023. e-ISSN 2550-6862. pp 57-71
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which means that the State entity will be in charge of arranging working hours, as well
as defining the administrative activities of each employee (Jara, 2021).
In our country, the State is the largest generator of jobs in the so-called health system
through the Ministry of Health and the Ecuadorian Institute of Social Security. Figures
indicate that, by October 2021, the number of people hired in the health sector is
130,537 compared to 95,031 in the private sector. Of the number of workers in the
health sector, the majority have an occasional contract (PAHO and Ministry of Public
Health, 2021). This number is alarming because it reflects the precariousness of the
sector.
Therefore, the fundamental rights of workers in the health sector are not in accordance
with the provisions of the Constitution of Ecuador (2008) regarding a dignified life, much
less with the provisions of the Organic Law of Public Service regarding the so-called
occasional contracts.
Organizational psychology would show that a major cause for concern is the context
faced by public servants subjugated by criteria of effectiveness and efficiency, this
scenario results in a perception of insecurity regarding the persistence in employment,
and the possibilities in the future to keep it and their own permanence, this is influenced
by the time required of them and the commitment to the organization (Valencia, 2021).
Labor stability is one of the primordial principles that erect the laws regarding labor and
disaggregate other rights in the practices of flexibility with social ranges and broad
valuation of workers' rights (Muñoz, 2020).
Maldonado (2022) makes clear the position of the World Health Organization regarding
stress at work as one of the causes that affect the emotional stability of workers and this
seriously damages the proper performance of their activities in the workplace. Stress is
generally reflected when working conditions are not adequate.
In several postulates every person should have the right to a job, as a way to reach the
conquest of certain elementary rights that are fundamental to have a life with minimum
dignity. This emphasizes as an opportunity through a job that is freely chosen to give
the security of a dignified life. In the progress of this right according to (Muñoz, 2020),
the authorities are obliged to guarantee a correct orientation that can give way to take
the appropriate measures to create a suitable environment where fruitful employment
opportunities are created, where they must ensure that there is no discrimination with
all aspects of work that can be generated.
The right to equitable and satisfactory working conditions and the rights related to
contracts are closely related to the right to a favorable working environment without
violating their rights (Muñoz, 2020). Governments have the obligation to guarantee
salaries in accordance with professional training, which must be evaluated in harmony
with the existing economic values within this labor regime, fair remuneration and equal
opportunities. Workers must be guaranteed a minimum wage that allows a decent life
for them and their families through laws that predispose the employer to a fair treatment
The occasional contracts of the LOSEP are a form of labor precariousness in the health sector.
Espirales. Revista multidisciplinaria de investigación científica, Vol. 7, No. 47
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that guarantees the aforementioned (Gavilánez, 2021). The conditions that should be in
a job should be safe, healthy and not degrade the dignity of the human being.
Employees should be offered reasonable working hours, adequate rest and leisure time,
as well as periodic vacations (Valencia, 2021).
All professionals should have the right to free association in order to improve the
conditions of their work and increase the standards of living and quality of life. These
workers should access and have the right to form or join an association of their choice
(Salazar, 2019). Employees as free people have the right in a peaceful manner to claim
their labor rights as long as it is done in accordance and attached to the laws that govern
us. Collective labor rights cannot be subject to restrictions by States (Gavilánez, 2021).
The LOSEP (2010), states that: the execution of the so-called occasional contracts must
be issued exceptionally by the appointing authority, and within this scheme meet the
needs of the institution that are not permanent, with a prior but motivated report from
Human Resources, with a technical report verifying that there is always a budget item
and also the availability of financial resources (art. 58).
It will be deduced that the jurisdiction is the one that gives the formality for the
appointments of the servants, in this case in the Ecuadorian State who performs this
function is always (Ministry of Labor Relations). In turn, there should be budgets to carry
out the hiring and thus give the benefits allowed by law to which all so-called public
servants are subject, so the State must have mechanisms that can perform this efficiently
and timely.
This type of contract cannot grant leaves of absence and therefore temporary
appointments, for which they are not allowed to study according to Article 58 of the
LOSEP, which leaves an abyss between their rights and their needs to be able to
advance their professional growth. - 58 of the LOSEP which leaves an abyss between
their rights and their needs to be able to advance in their professional growth to be
able to pursue a master's degree or a doctorate.
According to LOSEP (2010):
If an institution, in this case the MSP, does not have enough professionals, it may rehire
once only for up to one year; the authority, within its competence, may not dismiss
pregnant women. In this case, the validity of the contract shall last until the end of the
breastfeeding period (art. 58).
It is important to emphasize that, according to Abad (2020), the occasional service
contract does not generate employment stability, since its duration cannot exceed
twelve months and the hiring of personnel under this modality cannot exceed 20% in
the institutions, since if this time is exceeded, it is an obligation on the part of the
organization that the personnel may access the merit and competitive examination.
The economic benefits enjoyed by employees with occasional contracts under this type
of service will be established in the same regulation (LOSEP) in the third paragraph:
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Public servants in the health sector who are under this modality will have a dependency
relationship and will be entitled to all the economic benefits contemplated for
appointed personnel, with the exception of indemnities for elimination of position or
departure or incentives for retirement (Salazar, 2019).
The rights of health workers governed by the occasional contract are the same as those
of appointed personnel, except for severance pay, whether for elimination of items or
incentives for retirement; this is quite right because this type of contract is of a specific
duration (twelve months) (Gavilánez, 2021).
The fourth paragraph of Article 58 of the Public Service Law (2010) makes it impossible
for employees to remain in their position, i.e.: "Public servants subject to this type of
contract shall not enter the public service career, for the duration of their contract".
Although the personnel of the health institution governed under this modality will not
be able to enter the public service career, also during the duration of their contract
nothing will prevent them from taking part in a public merit-based competitive
examination (Muñoz, 2020).
The right of the casual worker in the health area in Ecuador.
The right to work with an occasional contract in the health area of Ecuador occupies a
subordinate place in public law, this is found in our legal system in articles 22, 23 and
24 of the duties, rights and prohibitions of the LOSEP which are the duties, rights and
prohibitions that are regulated in public institutions as the main axis in what our
constitution says, as well as in the rules of lower hierarchy (Jara, 2021).
For the termination of the labor relationship that exists between both parties of the
contracts made in the public sector we will find it in the respective Regulation that has
the so-called Organic Law of the Public Service (2010) in its Article. - 146, determines
the following grounds:
Fulfillment of the term. - Workers will terminate their contract in this modality with the
fulfillment of the established term, which is one year, and may be renewed for an
additional year; the worker will be entitled to an indemnity whose amount will be in
accordance with the values pending to be received, which will be established in the
sectorial regulations.
Mutual agreement between the two parties. - This service contract can be terminated
by the will of the parties, the LOSEP (2010) determines that the employee by means of
a letter of resignation addressed to the Manager or director of a certain health institution
makes known his desire not to continue in the job, and that the resignation submitted
in writing is approved.
Voluntary resignation submitted. - For a voluntary resignation to exist, it must be
expressed in writing, and ratified with a printed signature at the end of the document,
which must be sent to the highest authority of the public institution and a copy to the
Human Resources department (Jara, 2021).
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Inability of the contracted person to provide services. - This refers to the fact that the
person who has a contract on occasion, that due to illness or accident at work or not,
the service rendered will be unilaterally terminated; he/she will not be able to support
him/herself in order to receive remuneration or assistance, as it does not happen in the
case of workers with an appointment, as they can benefit from a retirement due to illness
(Muñoz, 2020).
Loss of citizenship rights declared by law. - In order to comply with this literal, it must
be necessary that there is a motivated judicial sentence that deprives the freedom of
the employee for committing a crime, only then the loss of citizenship rights is given,
here insolvency does not apply.
Unilateral termination of the contract by the competent authority. - It states that the
highest authority of the public institution has the power to request that the contract be
terminated at any time, without giving explanations or justifying its reason, such request
must be notified to the employee with the unilateral termination of the contract
(Maldonado, 2022).
Insufficient qualification established through the performance evaluation process: It is
the power of public institutions to conduct annual performance evaluations of their
employees, and those who have a score below 70%, have the right to appeal to the
commission formed by the institution, after the appeal and if in the new evaluation did
not meet the established percentage, their occasional service contracts may be
terminated (LOSEP, 2010).
Dismissal. - Dismissal refers to the act of removing a person from the position he/she
occupies, due to a negative performance of the space where he/she is performing a
certain task, generally because of negligent or corrupt actions, and an administrative
summary must be carried out by the competent authority, thus unilaterally terminating
the contract (Muñoz, 2020).
Death. - With the death of the employee, it is understood that the employment
relationship is terminated (LOSEP, 2010).
For causes that are legally written in the contract. - Since the main characteristic of the
occasional service contract is that it can be terminated unilaterally, this must be
stipulated in the contract signed by the employer and the employee in order for it to
be legal (Maldonado, 2022).
Permanent and total incapacity for work. - The incapacity, whether permanent or total,
that does not allow the work activity to be carried out in a normal manner will be
understood as the termination of the contract (Gavilánez, 2021).
Fortuitous event. - That happens or makes the work impossible, such as a fire, an
earthquake, a storm, an explosion, plagues in the countryside, outbreak of war and in
general, any other adversity or event that is extraordinary and could not be avoided by
the contracting parties. (Muñoz, 2020).
Franklin Roger Miranda Romero, Ana Cristina Pachano Zurita
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69
Conclusions
The competitions must be for professionals with a good preparation and be highly
qualified for its execution and due compliance in health as established within section II
Public Administration of art. 228 of the Constitution of Ecuador.
Occasional contracts do not always guarantee the faithful fulfillment of the right to work,
to a dignified life, to a good living, to due economic stability, in the public
administration as established by the Ecuadorian Constitution and the law.
The present study focuses on the public hiring of personnel with occasional contracts in
the health sector. The data show that after twelve months, professionals working under
this type of contract are separated from the workplace and that there is little likelihood
of renewing these contracts due to a lack of budgetary allocations. Therefore, labor
precariousness is more than evident and, consequently, the deterioration of personal
and family economic conditions.
The strategies created by the State are not efficient and do not ensure the right to have
a job in the health sector, therefore, they do not respond to the needs of the population.
As a result, the improvement of the needs of the institutions is not promoted, since no
budget allocations are created, nor is there a call for competitive examinations and
merits, in order to recover the health sector.
According to this analysis, occasional contracts violate the norm since Ecuador is called
a State guarantor of rights. The violation is represented through the destabilization of
public institutions due to the constant rotation of personnel.
The analysis of these occasional contracts according to their modality goes against
constitutional rights, when the worker is maintained with this type of contract for a long
time, the objective for which this modality was dictated would not be fulfilled, which
basically was to temporarily satisfy an institutional contractual need. Therefore, the
rights of the workers would be jeopardized because they would not have the
opportunity to have access to an appointment within the institution.
..........................................................................................................
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