Is it possible to receive more pay for vacations than for eviction when fired?: a worker did not rest for ten years in Ecuador

For many workers, arriving on free days of the week is the ideal disconnection, either to dedicate them to their family, personal projects or other reasons. But, it is not the only way to be deactivated from work: vacations are the alternative and it is an inalienable right that both public and private collaborators have in Ecuador.

In the public sector there are 30 days a year after eleven months of continuous service and in the private sector fifteen days off after each year of work.

However, not all workers enjoy their annual vacation and the reasons are different. The labor expert vannessa velasquez and the professor of the Faculty of Labor Sciences and Human Talent of the Uisek, Ider SalgadoThey mention several situations.

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For example, when it comes to workplace abuse or harassment, that is, in situations where the employer forces the worker not to take vacations without justifying it. Or when the employee prefers to accumulate them with the objective that when he is fired they recognize that value.

Both cases have been dealt with in the legal studies of Velásquez y Salgado, where They highlight the importance of the worker enjoying his vacations for “mental health” and not for “strategy”. But, they also call on employers to respect that right stipulated in the article 69 of the Labor Code and article 29 of the Organic Law of Public Service.

“Holidays are an inalienable right, unfortunately in some public entities they are not scheduled. Just as budget planning is done, vacations also have to be planned. Of course, there is a right to deny it due to the necessity of the human talent unit, just once, but I have seen public officials with 120 and 180 days of vacation. And the same happens in the private part. There is a terrible violation,” says Salgado.

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In recent years, Salgado dealt with the case of a citizen who worked for around fifteen years in a private company. This collaborator did not enjoy vacations for ten years. He had a salary of $2,000 and accumulated 167 days off.

This worker resigned and only received $13,000 for vacations and approximately $8,000 for eviction. “The company wanted to die,” emphasizes Salgado, who points out that there are employees who see vacations as payment and not as a right, which he says is unfortunate.

“The right is vacations, not pay. The payment is exceptional when I end the relationship without having taken a vacation, ”says the labor expert.

This type of situation can be framed, according to specialists, in the 86 complaints for vacations and/or permits and in the 71 complaints for vacations not taken between 2020 and 2022 in the public sector, according to figures from the Ministry of Labor.

Most of these complaints are found in the province of Pichincha, in both categories, there are 42; followed by Guayas with 25; Manabí with 20; Tungurahua with 21; Azuay with 18; Imbabura with 17 and Loja with 14.

In the private sector this categorization is not made on the website of the Ministry of Labor, but only in October 2022 have dealt with 111,668 general complaintswhich includes compensation, teleworking, retirement, discrimination and others.

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Velásquez points out that the public official can only be compensated in money when they cease their functions, that is, the liquidation of those vacations that the worker did not get to enjoy. In addition, in the public sector vacations can only be accumulated up to sixty days.

Unlike the private worker, who in article 75 of the Labor Code, mentions that they may be added for up to three consecutive years, in order to accumulate them in the fourth year.

But, what happens with the workers who have more accumulated years? According to experts, if the employee is forced, without justification, he can file a complaint at the Ministry of Labour. If it is favorable, the employer must grant those rest days and could even receive a warning.

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And in the case that the collaborator does not want to take them Considering that the settlement will be higher, each Human Resources department must talk with the worker to make use of your right and explain that you have a period, according to the Labor Code.

For example, article 73 says: “the contract will state the period in which the worker will begin to enjoy vacations. There being no written contract or such indication, the employer will let the worker know, three months in advance, the period in which the vacation will be granted.”.

Although the ideal and healthy thing for Salgado is to use that right. “It’s a mental drain and as many entities, international organizations have said, that those rest and long periods such as holidays and vacations have to be respected since they constitute a worker’s right. Then we see ourselves with occupational diseases derived from work stress. Now if it is a fundamental worker and he goes on vacationfor example in August, then from May or April I start planning its replacement or advance the work so that he goes on vacation ”, he comments.

The International Labor Organization (ILO) estimates that a year 2.78 million workers die from work-related causes, of which 2.4 million are related to diseases and the rest are due to work accidents.

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This same international organization revealed impressive cases such as that a man worked in Japan until 110 hour weeks and died of a heart attackwith 34 years of age.

“It is not optional for the employer to deny vacations if there are no legal causes. Vacations must be enjoyed by the worker. Rest is necessary”, emphasizes Velásquez.

Salgado agrees with this, who indicates: “Unfortunately there is a practice, they tell you: don’t go, I’d rather pay you. Or the same worker, he prefers to be paid. But there is nothing more important than mental health.” (YO)