Terminating an Employee During Probation in Ecuador: A Lawyer's Guide to Compliance

As a business owner in Ecuador, you understand that the first 90 days of employment are a critical evaluation window. The probationary period, or período de prueba, is a legal tool designed for this assessment. However, while terminating a contract during this phase is procedurally simpler than a standard dismissal, it is far from a mere formality. Mishandling this process is a common and costly mistake. This guide provides a precise, actionable framework based on Ecuadorian law and hands-on experience to ensure your actions are legally sound and defensible.

The período de prueba is governed by the Código del Trabajo (Labor Code). Its purpose is to allow the employer to assess an employee's skills and fit, and the employee to evaluate the role and company culture. This period is a standard component of most indefinite employment contracts (contratos de trabajo por tiempo indefinido).

The Legal Framework: Precision is Non-Negotiable

The legal foundation for the probationary period is established in Artículo 15 del Código del Trabajo. This article sets a maximum duration of ninety (90) days from the start date of employment. It is crucial to understand that this period is immutable; it cannot be extended or renewed under any circumstances.

While the primary benefit for the employer is the ability to terminate the contract without cause or severance pay (indemnización por despido intempestivo), this right is contingent upon strict adherence to the correct procedure. The legal justification for this type of termination is found in Artículo 169, numeral 1 del Código del Trabajo, which lists "Por acuerdo de las partes" and "Por conclusión de la obra, período de prueba..." as valid reasons for ending an employment relationship.

The Termination Process: A Step-by-Step Protocol

Executing a termination during probation requires a methodical approach. Overlooking a single step can expose your business to legal challenges and sanctions from the Ministerio del Trabajo.

Step 1: Scrutinize the Employment Contract

Before taking any action, review the signed contract. Confirm that the probationary period clause is included and aligns with the 90-day maximum stipulated by law. Any contractual ambiguity could be interpreted in the employee's favor.

Step 2: Maintain Internal Documentation (Your Shield in a Dispute)

While you are not legally required to provide a reason for a probationary termination, maintaining an internal file is a critical risk-mitigation strategy. Should a former employee allege the termination was discriminatory, this documentation becomes your primary defense. It should include:

• Notes from performance discussions or feedback sessions.
• Objective metrics on performance, attendance, or conduct.
• Records of any informal warnings or corrections provided.

This demonstrates that the decision was based on a professional evaluation, not a prohibited or arbitrary reason.

Step 3: Draft and Deliver the Termination Notice

The written termination notice, the notificación de terminación por período de prueba, is the most vital document in this process. It must be delivered to the employee on or before the 90th calendar day of their employment. Delivery on day 91 effectively nullifies the probationary clause, converting the termination into a standard dismissal that may require severance pay.

The notice must contain:

• Employer's legal name and RUC (Registro Único de Contribuyentes).
• Employee's full name and ID number (cédula de identidad).
• The start date of employment.
• A clear statement that the contract is terminated by virtue of the probationary period, citing Artículo 15 del Código del Trabajo.
• The effective date of termination.

Delivery Protocol: The notice must be delivered in person. Have the employee sign a copy acknowledging receipt (recibido).

• Hyper-Specific Detail 1: Handling a Refusal to Sign. If the employee refuses to sign, do not engage in a confrontation. Instead, have two witnesses present who can sign the employer's copy of the notice, attesting to the delivery and the employee's refusal. For an even more legally robust option, engage a notary public to deliver the notice. This process, known as a diligencia notarial, provides irrefutable proof of delivery and typically costs between $40 and $60 USD.

Step 4: Calculate and Pay the Final Settlement (Liquidación)

Termination during probation does not absolve the employer of paying all accrued benefits. The final payment must include:

• Salary Owed: Wages for all days worked up to the termination date.
• Proportional 13th Salary (Décimo Tercer Sueldo): Calculated from the start date to the termination date.
• Proportional 14th Salary (Décimo Cuarto Sueldo): Calculated proportionally.
  • Hyper-Specific Detail 2: Regional Payment Nuances. Remember that the calculation period for the décimo cuarto differs by region. For the Sierra and Amazonía regions (including Cuenca and Quito), the period runs from August 1st to July 31st. For the Costa and Galápagos regions, it runs from March 1st to February 28th. Ensure your calculation aligns with your business's registered location.
• Accrued Vacation Pay (Vacaciones no gozadas): The employee is entitled to the proportional payment for vacation days accrued (calculated as one-twelfth of the remuneration received during the employment period).
• Any other pending payments: Such as overtime, commissions, or other contractual benefits.

Step 5: Register the Settlement Act (Acta de Finiquito)

This is the most frequently mishandled step. The final settlement must be detailed in an official document called the Acta de Finiquito. This document is generated and registered online through the Ministry of Labor's platform, the SUT (Sistema Único de Trabajo).

• Hyper-Specific Detail 3: The Critical 15-Day Deadline. As per Acuerdo Ministerial MDT-2023-140, the employer has a strict deadline of fifteen (15) days from the employee's last day of work to register the signed Acta de Finiquito on the SUT platform. Failure to meet this deadline results in automatic fines levied by the Ministry.

Once the finiquito is paid, the employee should sign the Acta. This signed document is then uploaded to the SUT to finalize the process and officially close the employment record.

Common but Avoidable Pitfalls

• Confusing Probationary Termination with Desahucio: The aviso de desahucio is a 15-day notice an employer must provide when terminating an indefinite contract after the probationary period. This notice is not required for a probationary termination. This is a common point of confusion.
• Day 91 Errors: Delivering the notice even one day late is a fatal procedural flaw. Mark the 90-day deadline on your calendar from day one.
• Verbal Terminations: A verbal notice has no legal standing in Ecuador. The process must be documented in writing.
• Ignoring the SUT Registration: Simply paying the employee is not enough. The official registration of the Acta de Finiquito is a mandatory legal requirement to formally conclude the employment relationship.

Checklist for a Legally Sound Probationary Termination

• [ ] Verify the 90-day probationary period end date.
• [ ] Review the employment contract for the probation clause.
• [ ] Compile internal performance documentation.
• [ ] Draft a formal written termination notice citing Artículo 15.
• [ ] Deliver the notice in person on or before day 90.
• [ ] Secure a signed acknowledgment of receipt or use witnesses/notary.
• [ ] Accurately calculate all final settlement payments (liquidación).
• [ ] Generate the Acta de Finiquito via the SUT platform.
• [ ] Pay the employee the full settlement amount.
• [ ] Obtain the employee's signature on the Acta de Finiquito.
• [ ] Upload the signed Acta and proof of payment to the SUT within the 15-day deadline.

⚠️ Red Flags: When to Immediately Consult an Attorney

Stop the process and seek legal counsel if:

• The employee is pregnant, on maternity/paternity leave, or has a registered disability. These employees have enhanced legal protections (inamovilidad laboral) that may supersede probationary rules.
• The employee is a union leader (dirigente sindical).
• You suspect the termination could be perceived as discriminatory (based on race, gender, religion, etc.).
• The employee refuses to accept payment or sign the Acta de Finiquito.
• You have missed any deadline or procedural step outlined above.

Adherence to the precise protocols of the Código del Trabajo is not optional; it is the foundation of sound labor management in Ecuador. By following this detailed guide, you can navigate probationary terminations with confidence, protecting your business from unnecessary legal risks and financial penalties.