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Work harassment between workers and its lack of
regulation in article 172 of the Labor Code
Acoso laboral entre trabajadores y su falta de
regulación en el artículo 172 del Código de Trabajo
Daniel Steven Mosquera Garay
Independent Legal Researcher
City:
Guayaquil
Country:
Ecuador
Karelys del Rocio Albornoz Parra
Independent Legal Researcher
City:
Guayaquil
Country:
Ecuador
Original article (analysis)
RFJ, No. 11, 2022, pp. 65 - 96, ISSN 2588-0837
ABSTRACT:
The
main goal of this article is to expand the
definition of harassment between workers and its types from
the perspective of labor law, studying the different doctrines
that support the legal figures in question, to understand
more precisely the, we proceed to expose the background
and evolution throughout the history of harassment between
workers and how this has not been incorporated doctrinally
within the regulatory standard. The problem arises since Ecuador
lacks the exercise of action toward the worker to confront labor
harassment among peers. The different modalities of the labor
harassment that affect and affect the worker will be described
in the city of Guayaquil, Ecuador, which composes the necessity
to visualize the increase of the labor harassment on the lack of
exercise of action that does not have the harassed one where
the lack of a procedure of approval is questioned to prevent and
to diminish the labor harassment between workers.
DOI 10.26807/rfj.v11i11.317
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KEYWORDS:
Worker, work, harassment, risk prevention,
labor law.
RESUMEN:
El presente artículo tiene como meta principal po
-
der ampliar la definición de acoso laboral entre trabajadores y
sus tipos bajo la perspectiva del Derecho laboral, estudiando las
diferentes doctrinas que sustenten las figuras jurídicas en men
-
ción, para poder entender con mayor precisión las antes men
-
cionadas procedemos a exponer los antecedentes y la evolución
a lo largo de la historia del acoso laboral entre trabajadores y
como esta no ha sido incorporada de forma doctrinaria den
-
tro de la norma regulatoria. La problemática surge debido a que
Ecuador carece del ejercicio de acción hacia el trabajador para
enfrentar el acoso laboral entre pares. Se describirá las diferen
-
tes modalidades del acoso laboral que inciden y que afectan al
trabajador, por el amento del acoso laboral en la ciudad de Gua
-
yaquil, Ecuador, La cual compone la necesidad de visualizar el
aumento del acoso laboral sobre la falta de ejercicio de acción
que no la tiene el acosado donde se cuestiona la falta de un pro
-
cedimiento de visto bueno para prevenir y disminuir el acoso
laboral entre trabajadores.
PALABRAS CLAVE:
Trabajador, trabajo, acoso, prevención de
riesgos, derecho laboral.
JEL CODE:
J01, J16.
INTRODUCTION
The emergence of the regulation of harassment
originated in the eighties and has been in force since 2017 in
our Labour Code, however, its incorporation was very rapid
without taking into consideration a clear definition of each of
the types of harassment at work that favors the worker.
This research has three sections, the first of which
deals with the approach, formulation of the problem,
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systematisation, objectives, justification, hypotheses, and
variables. Furthermore, it will analyse workplace bullying, its
theoretical bases, foundations, and background, which will
serve as a contribution to the objectives of the research, through
scientific studies and referential bibliography.
When addressing the issue of
mobbing
in Ecuador,
it should be mentioned that over time and up to the present
day, workers have faced different social complications, being
susceptible to numerous changes, threats, and intimidation,
which affect them in one way or another (Cordero, 2016).
Workplace bullying is as old as work itself; it is one
of the most worrying psychosocial risks because its
symptoms do not disappear even when exposure has
ceased for a long time. (Rodriguez, 2013, n. p.)
The scholar Brodsky (2019), a pioneer in the study of
the problem of workplace bullying, states:
He is the first author to refer to the harassed worker,
in a study prompted by the enactment of a new law
on working conditions in Sweden in the same year.
His book focused on the hardship of the rank-and-file
worker’s life in the context of work-related accidents,
physical exhaustion, excessive working hours,
monotonous tasks, and problems that are nowadays
addressed in stress research. (p. 7)
These working conditions were the main reason why
the worker felt exhausted, as there was no protection of his
rights, which led to the violation of his rights, and these errors
were understood to be the reason for the harassment of the
worker at work.
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1. HARASSMENT AT WORK
Workplace bullying is first studied in the field of
interpersonal relationships. Leymann (2019), a Swedish
scientist explains: “who from a clinical approach in psychology
established the term
mobbing
as the official term for harassment
at work” (p. 6).
Doctrinarian Leymann was one of the initiators, this
definition is connected to what is currently happening in the city
of Guayaquil, which corresponds to being the first psychology
clinician to use the term
mobbing
worldwide. Using him as a
target so that the other harassers in the group can also torment
him. There is a real subjugation of the victim. Therefore, what
it will produce in the worker are strong and uncontrollable
disorders in his health, both physical and psychological.
1.1 Organisational climate
In this regard, Méndez (2006) gives us a definition
indicating that “it refers to the working environment of the
organisation” (p. 7) (quoted by García, 2009, s. p.). It should
be understood that there are negative attitudes, which seek to
attack the worker, who is the one who provides his services
to the organisation and contributes his skills to the company,
in such a way that can be frowned upon by the harasser and
denigrating the performance of the worker within the working
hours, whose strength makes him more competitive and
maintains a total commitment to the work, therefore, this
would cause
mobbing
.
1.2. Organisational Behaviour
Robbins (2012) states that:
“
It is a field of study that
investigates the impact of individuals, groups, and structures on
behaviour within organisations, with the purpose of applying
the knowledge gained to improve the effectiveness of an
organisation” (n. p.).
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Every organisation consists of a hierarchical system,
where there are certain areas in which one area decides what is to
be done, therefore those who oversee executing these decisions,
and another area that will supervise the aforementioned. The
exercise of power is inherent to the organisational structure,
regardless of the size of the organisation, it is a fact that
there will always be someone who seeks to obtain power and
demonstrate that they have it.
1.3. Stages of workplace bullying
From an organisational point of view, there are four typical
stages in the development of bullying that describe the
emergence and evolution of most bullying processes. For Villa
et al. (2019) they are:
1.
The occurrence of a critical incident:
Conflict is the
trigger state for bullying. It develops in a very short
time.
2.
Systematic persecution:
Actions are identified whose
purpose is to cause harm, in a systematic way.
3.
The intervention of superiors:
When managers find
out about this, they tend to take on prejudices against
the victim and attribute the problem to her personal
characteristics. As a solution, they try to get rid of
her, persecute her, discredit her and blame her.
4. Leaving
work:
The victim tries to defend herself,
and because of this and the after-effects of the
harassment, her situation worsens. Finally, she leaves
her job and seeks medical and psychological help.
(p.
19)
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1.4. Subjects involved in workplace bullying (acoso escolar)
1)
Stalker
2)
Victim
1.4.1. Stalker
In this regard, Méndez (2004) argues that: “He is
an organisational psychopath who employs subtle attack
techniques, manipulates his environment with the aim of
destroying the dignity of the victim and his professional
discrediting within the organisation” (cited by Vargas, 2018,
p. 10).
The above-mentioned quote describes the anomaly of
the harasser whose techniques are detrimental to the victim,
making it impossible for him/her to carry out his/her duties
and inhibiting him/her, resulting in professional discrediting
within the organisation.
1.4.2. Victim
In this regard, Avila (2014) quotes Rodriguez (2013)
who argues that: “the victim is singled out, made to feel guilty
of something until he/she excludes him/herself, with the
argument that he/she is not capable of performing his/her
duties
”
(p. 6).
In an abstract way of thinking, it can be deduced that
the prerequisites for harassment at work are that the victim
feels self-excluded in the face of arguments that the activities
he or she performs are insufficient.
1.5. Types of workplace bullying
According to the doctrine, the types of harassment at
work are divided into:
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a)
Horizontal mobbing is characterised by the fact that
the bully and the victim are in the same hierarchical
rank.
b)
Vertical
mobbing
is so-called because the bully is either
on a higher hierarchical level than the victim or on a
lower level than the victim.
c)
Upward
Mobbing
: Occurs when a senior employee is
attacked by one or more subordinates.
d)
Top-down
mobbing
: Occurs when an employee at
a lower hierarchical level receives psychological
harassment from one or more employees who occupy
higher positions in the company’s hierarchy; strategic
harassment: This is characterised by the fact that the
mobbing is
part of the company’s strategy.
e)
Management
Mobbing
: This is carried out by the
management of the organisation.
f)
Perverse
mobbing
: This refers to a type of
mobbing
that
does not have a work-related objective.
(Garcia, 2009)
From the above mentioned we have the different types
of harassment at work, each one with its different legal criteria,
which makes the interpretation clear and can be further
improved in the labour area such as the labour code.
2. MODALITIES OF WORKPLACE HARASSMENT BETWEEN
WORKERS
Professor Diazgranados (2015) states the following: “Any
insulting or outrageous verbal expression that harms the
moral integrity or the rights to privacy and good name of those
involved in an employment relationship” (p. 30).
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It is all conduct that goes against the victim and, above
all, is based on the victim’s righteousness and good name.
When the victim is totally weakened and transmits insecurity,
the perpetrator will see this as a bad thing, wanting to surround,
besiege and block everything that the worker says or does.
Regarding the modalities of harassment at work, the
author defines it as anything that physically and emotionally
wears the worker down, which makes their behaviour very
good in the eyes of others, but the harasser sees it as a breaking
point to be able to torment the victim. A victim is usually an
intelligent person, and this situation causes the affected person
to have a decrease in intellectual development, concentration,
and performance. The need to be able to have a job means that
he or she must put up with daily aggravations: insults, isolation,
assignment of tasks, and mockery in front of other colleagues.
2.1. Labour persecution
Professor Diazgranados (2015) on labour persecution indicates
that it is:
Any conduct whose characteristics of reiteration or
evident arbitrariness allow inferring the purpose of
inducing the resignation of the employee or worker,
through disqualification, excessive workload, and
permanent changes of schedule that may produce
demotivation at work. (p. 30)
The bully’s behaviour is still very frequent and causes
disaffection. Therefore, workers feel persecuted and pressured
to the point of no longer socialising, even becoming asocial. The
profile of the bully is that of a psychopath in the company, with
mediocrity, envy, and narcissism being the most common traits.
The lawyer Diazgranados (2015) argues that:
“
Two
aspects of this second type of workplace harassment stand out:
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the first is that the persistence of the conduct is fundamental
for its configuration and the second is that the purpose is to
induce the resignation of the worker
”
(p. 30).
Persecution at work is all conduct that is imposed
consecutively by the harasser, who, by being reiterative
and constant in his actions, achieves what he wants, such as
harassment at work in such a way that he panics and does not
socialise with anyone in the company so that he does not carry
out his activities in the best possible way. Such acts do not
matter to the harasser, because he has the backing of his group.
The violation of workers’ rights continues to occur in our city
and the harasser’s aim is notorious: to mentally block the victim
in order to invade his private life with inappropriate comments
and prevent him from working.
3. WHY MOBBING ARISES IN THE WORKPLACE
The one that is initiated by a bully or group of bullies
in front of the victim or victims, because the bullied person is
different from the bullies; this difference can come because the
victim is brighter or better known in his or her professional field
than the bully; envy of the bully that presents him or her in his
or her dark side as an insecure person (Rojo and Cervera, 2006).
For the undersigned, this is also something fundamental
that must be taken into account, and the behaviour of the
perpetrator or also known as the harasser must always be seen,
because from the moment that a worker within the organisation
causes harm and is repetitive, the aim is to be able to progress
with attrition until they achieve their objective, which is to
isolate the victim in such a way that they feel harassed and
make them feel insecure. The purpose of which is to be able
to progress with wear and tear until he achieves his objective,
which is to isolate the victim in such a way that he feels harassed
and makes him feel insecure about himself.
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4. ETHICAL BUSINESS CONFLICTS IN WORKPLACE
BULLYING
Professor Valencia (2017) mentions that “ethical-
business conflict is the one that arises when there are behaviours
derived from the relations between employers and workers,
which can be called
Workplace Harassment” (n. p.).
Conflicts that are business ethics make it an obligatory
circumstance for the company to work in a well-functioning
way. At the same time, it is held in high esteem, including acting
in the best possible way for its correct functioning. This allows
it to remain a great motivator to do things in the best possible
way and a guide for its process.
5. COMMON FORMS OF MOBBING
5.1. Active
Within the usual forms, the specialist Vidal (2017) testifies that
they are:
Lies and slander about the victim; badmouthing the
victim behind her back; hoaxes about the victim’s private
life; public disqualification, humiliation, and ridicule;
exposing the victim to group criticism; referring to the
victim using nicknames; veiled and malicious allusions;
use of sarcasm, innuendo, insinuations, but not directly
expressed. (p. 9)
The doctrine guides us in the direction of labour
harassment and teaches us how
mobbing
is carried out, but
what is still missing in the Labour Code is a deeper and clearer
understanding of
mobbing
and its types. There is still a lack of
clarity and a gap in the Labour Code as is seen among workers.
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5.2. Passive
Passive forms of bullying are also common:
Looks of contempt; Intentional silences; Ignoring
the victim; Not greeting her; Not sitting next to her;
Not looking her in the face when talking to her;
Hiding information from the victim; Not inviting her
to meetings; Not assigning work to the victim; Not
respecting her level of training or seniority in the job;
Not inviting her to work parties or celebrations; Not
giving her the floor in meetings. (Vidal, 2017, p. 9).
The passive methods are taken very abruptly by
the harasser, who transmits fear to the victim and above all
locks him/her in an imperfect world and belittles any type of
activity he/she carries out within the company. This is done
consecutively to make the victim feel inferior and with low self-
esteem.
6. FORMS OF EXPRESSION
Among the forms of expression, Professor Leymann
(n. d.) explains that during the study of mobbing.
It has described 45 hostile behaviours 49 which can be
of different natures, usually falling into five groups, and
relate to Harassment activities to reduce the victim’s
possibilities to communicate adequately with others,
including the harasser himself; Harassment activities
to prevent the victim from having the possibility to
maintain social contacts; Harassment activities aimed at
discrediting or preventing the victim from maintaining
his personal or work reputation; Harassment
activities aimed at reducing the victim’s occupation
and employability through professional discrediting;
Harassment activities affecting the victim’s physical or
psychological health. (quoted by Vidal, 2017, p. 10).
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Harassment behaviour is unworthy of dignity and,
above all, detrimental to the working environment. It is not
possible to continue to disadvantage the victim and devalue his
or her work.
Vidal and Daza (2017) classify expressions as follow:
Actions against the reputation or personal dignity of
the person concerned; by making insulting comments
against him/her. Actions against the exercise of their
work, by entrusting them with work that is excessive or
difficult to perform when not unnecessary, monotonous,
or repetitive, or even work for which the individual is
not qualified, or which requires a lower qualification
than that possessed by the victim
shunting
; or, on the
other hand, depriving them of the performance of
any type of work; confronting them with role conflict
situations by denying or hiding the means to perform
their work, asking them for contradictory or excluding
demands, forcing them to perform tasks against their
moral convictions, etc.); Many of the actions involve
manipulation of communication or information with
the person concerned involving a wide variety of
situations. (p. 11)
It is understood that every action of the bully goes hand
in hand with attrition and in turn causes a bad reputation in the
eyes of other colleagues who may become the next victims.
6.1. Attacks on the victim’s social relations with social
isolation
For Villa et al. (2019) attacks on social relationships are:
Restricting peers from talking to a person; Refusing
to communicate with a person by not communicating
directly with him/her; Not speaking to a person;
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Treating a person as if he/she did not exist. (p. 12)
The interest is in agreeing to every activity that does the
job and clearly damaging their mental health and keeping them
away from communication altogether because the recovery
treatment of these people who are victims of bullying continues
to increase.
6.2. Attacks on the victim’s private life
Villa, et al (2017) explain that they are:
Constant criticism of a person’s private life; Telephone
terror; Making a person look stupid; Implying that a
person has psychological problems; Making fun of a
person’s disabilities; Imitating a person’s gestures, and
voices; Making fun of a person’s private life. (p. 12)
7. TACIT PARTNERS IN MOBBING
Apaza (2017) states:
There is a group of collaborators of the gang, who are
not as violently active but who help the bullying by
spreading rumours and refusing to help the bullied.
They are the so-called tacit collaborators of mobbing
because with their actions they enhance the isolation of
the victim and discredit him/her, they act as facilitators
and cover-ups of the harassment. (p. 25)
For the undersigned, the collaborators are those
colleagues in the organisation who help the perpetrator to
continue harassing the victim, and who in turn need to cover
up for all the acts that the harasser carries out until he achieves
his objective, while he gets what he wants, the harasser and his
group of collaborators expands as the harassment progresses,
especially in long-term harassment, up to 15 people, all of them
assisting in the harassment process.
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8. MOTIVES OF THE WITNESS OF WORKPLACE
HARASSMENT FOR NOT GIVING HELP TO THE
VICTIM
Other participants in the bullying process are
witnesses or bystanders, who for many reasons do not give help
to the victims. Villa et al. (2019) express that they are: “They can
be the following victims: They understand or have experienced
bullying Psychological manipulation; Violence: Cowardice and
fear; Lack of critical and analytical thinking skills; They do not
dimension the consequences” (p. 17).
They are those who prefer to remain silent and not to be
part of the harassment at work because they could be victims;
out of fear and fear of the harasser, they prefer to ignore him/
her. They leave their colleague aside and do not help in whatever
is necessary to repel the attack that the bully carries out daily.
9. PSYCHOLOGICAL OR MORAL HARASSMENT
The jurist Pereiro (2016) indicates that psychological
harassment is conduct that: “Attacks the dignity and moral
integrity of the person and always involves psychological
mistreatment and emotional abuse” (p. 5).
Psychological harassment is conducting those harms
and can disqualify any type of activity carried out by the
worker. The victim is put at risk and becomes psychologically
and emotionally destabilized.
9.1. Difference between bullying, harassment, and burnout
syndrome
Pérez Terry (2019) states that both: “
If it occurs from
superior to subordinate it is harassment, while harassment
occurs between people with the same hierarchical level in the
company” (n. p.).
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Harassment should be understood as any form of
endangering the worker and therefore this is voluntary so
that there is no confusion about harassment at work. This is
something that many people put up with in order not to lose
their jobs.
According to Psicología Velázques (2017) “Burnout
syndrome can be confused with a situation of harassment
for these reasons, poor management of the company and
consequently work overload, as well as false expectations on
the part of the worker” (n. p.)
.
It should be borne in mind that this figure is not related
to harassment at work and therefore they are totally different.
9.2. Harassment in the workplace as a violation of human
dignity
Rodriguez and Larenz (2015) argue that workplace
bullying is an attack on human dignity:
It is the fundamental principle of law, from which all
regulation stems, it is reciprocal respect, the recognition
of the personal dignity of the other and, therefore, of
the indemnity of the person of the other in all that
concerns his or her external existence in the visible
world, life, physical integrity, health, and in his or her
existence as a person, freedom, prestige person. (p. 9)
Such is the case that the worker is in great danger and
devaluing each one of his activities, thus undervaluing his
potential, and can even more so harass the victim as a group,
provoking psychological deficiencies and causing internal
damage to his mental health by making him look bad in the
eyes of others, being the victim of ridicule, etc. Ecuadorian
jurisprudence does not give a clear answer on harassment at
work, which is why it is necessary to continue to study this
subject in greater depth.
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On the other hand, in comparative law, there is a solution
and a specific law, such as the Colombian law, which protects
the rights of workers. Because they are the weaker party and
there is greater job stability, which means that the rights and
principles of the worker can be violated. It is necessary to take
the doctrine as a reference, as I have already explained, and to
issue rulings that serve as a precedent for harassment in the
private sector.
9.3. Personality and self-esteem in victims of bullying
To Alcides et al. (2009): “Personality studies the
determinants of personality and the agents that lead people to
act as they do and establishes indicators to predict behavior”
(p. 4).
9.4. Intent to cause harm
For Vidal et al. (n. d.) The intention to cause harm is:
A situation in which a person, or several persons,
systematically and recurrently, over a prolonged period,
use extreme psychological violence against another
person or persons in the workplace with the aim of
destroying their communication networks, destroying
their reputation, disrupting the performance of their
work and de-motivating them at work. (p. 2)
This is still seen as a form of malice, i.e., the active
subject must have the knowledge and will to cause harm so that
the passive subject leaves his or her job as a result. Therefore, it
is misunderstood to speak of mobbing or harassment at work,
as we would be dealing with other forms of harassment such
as work-related stress. Above all, the harassed person must be
discouraged from quitting his or her job.
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10. THE RELATIONSHIP BETWEEN MOBBING OR
HARASSMENT AT WORK WITH STRESS
For the doctrine of the relationship of mobbing to
stress, Leymann (2009) considers that “German research on
psychologically oriented stress, in particular, it can be argued
that mobbing can be seen as a certain kind of far-reaching and
dangerous social stress” (n. p.).
This means that Anglo-Saxon research has focused
more on what corresponds to the biological character of stress,
because of confusion over the content of the terminology and
it is not clear whether mobbing is the source of stress or the
source of stress.
10.1. The relationship with mobbing
In Swedish research conducted in 1982, it is specified
that mobbing should be considered an exaggerated conflict.
Leymann (2009) states that:
Mobbing evolves from a conflict after a certain period,
sometimes very quickly, sometimes after weeks or
months, leading to the characteristics described. In
social psychology, research on aggression and conflict
is voluminous. (p. 8)
The doctrine teaches us that clarification is still being
sought, but so far, they have not focused on the damage
caused to the health of the victims, which is why the number
of cases of harassment at work continues to increase and life
endangerment is maintained without protection, which could
even lead to the death of the victim as the perpetrator can no
longer tolerate harassment at work in the company.
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10.2. Key aspects of workplace bullying
For the jurist Villa (2019) one of the key aspects is that:
They can be very cunning, ingenious, and sometimes
very subtle, to such an extent that other employees,
although they witness the harassment, may not be able
to identify it. What these techniques have in common
is that they seek to harass, slander, and attack the
victim’s work, convictions, and private life by isolating,
stigmatising, and threatening him or her. (s. p.)
The liveliness used by the bully is fully overwhelming,
imposing, and perverse. The existence of the problem is what
really attracts him to commit bad habits and the repudiatory
contact he receives from his classmates, being the centre of
attraction with shouting and physical aggression towards his
classmates.
10.3. Causes of mobbing or harassment in the workplace
The various causes of workplace bullying and its major
relevance are mentioned by Carvajal and Dávila (2019) as they
mention that:
Depending on the personality of the victim and the
bully; Depending on the inherent characteristics of
human interactions in organisations, and Depending
on the specific organisational climate and environment
of an organisation. (p. 8)
From another point of view, Villa and Trujillo (2019)
explain that:
Another cause of mobbing is to demonstrate the bully’s
power as a means of intimidating other staff in order to
maintain and gain a foothold. (p. 12)
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In this regard, Villa et al. (2019) stress that: “Jealousy
and envy felt by bullies are the most frequent causes of
mobbing” (p. 34).
This is the behaviour that the perpetrator uses to hook
the victim and then reduce irrelevant information, because it is
understood that he has already obtained his information and
they always have the pretext of being able to slander the victim,
causing the victim to withdraw into his world and finally decay.
This type of harassment is still totally negative for
the working environment in private companies. As the writers
explain, it is something that we must bear in mind that the
affected party in the labour relationship is the worker. When
providing his or her professional services to a company, the
company should not allow this type of harassment by another
colleague.
Therefore, reform of our labour code is necessary.
Due protection and compliance with the labour principles of
the worker. Finally, it is also the Machiavellianism, cowardice,
and cynicism of the harasser that leads him to use the group for
his attacks on the harassed and to hide behind it so that in case
of being discovered, his responsibility is blurred.
10.4. Consequences of workplace bullying
The treatises. Carvajal and Dávila (2013) explain that:
Harmful effects of mobbing on individuals,
organisations, and society have been demonstrated.
Most of the studies investigate the individual
and organisational consequences, with the most
representative studies focusing on the effects on
individuals. (p. 93)
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A first outcome that triggers many illnesses is stress at
work, which can occur as a cause or because of bullying. For
the victim, the immediate manifestation will be reduced self-
confidence, a tendency towards job abandonment, isolation,
and absenteeism, whereby, if the person loses his or her job, he
or she loses the will to look for a new one.
11. HARASSMENT AT WORK IN ECUADORIAN
LEGISLATION
In November 2017, the Labour Code incorporated
into the Labour Code the concept of labour harassment for the
termination of the employment relationship as just cause for
both the employer and the employee.
The typification of harassment in the legal body
of labour law brings with it the technique of the benefit to
identify and to a certain extent control the continuation of the
illegal practice of discrimination against workers; although it
is true that for a long time there has been economic-material
reparation for dismissal, it is also true that from a human point
of view the worker has never received justice (Carvajal, 2018).
When talking about harassment at work in Ecuadorian
legislation, it is necessary to point out that it is already
established, but there is still no extension of the definition of
harassment at work, which is still a big problem for workers
in private companies, and that in turn, it is possible to achieve
due protection and reduce the number of cases of harassment
at work. Because it is not necessary to provide the necessary
legal means for the worker to assert his or her rights and not to
let them go unpunished.
11.1. Employer’s obligations
Within the employer’s obligations, according to
Ordóñez (2015): “The employer’s obligations, like those of the
worker, can be classified as economic, including the payment
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of remuneration, profits, and additional remuneration; and
ethical-psychological, we have the protection and assistance of
the worker” (p. 51).
Of the obligations that the employer has, there are
those that must undoubtedly be fulfilled, and that the employer
must comply with because, as it is contemplated in the Labour
Code, it should not be overlooked, which by law corresponds
to the worker, because if the worker is harassed periodically,
the employer also has the obligation to put a stop within the
organisation and control harassment between colleagues.
11.2. Rules of Procedure
Figueroa (2017) “defines them as the binding
normative provisions between employees and employers bound
by an individual contract that regulate the role of the parties,
especially the functions of the workers during the course of the
employment contract” (n. p.).
The main activity of the internal work regulations
is to enforce the established regulations and to enforce the
functioning of the company or organisation because they are
valid and must be complied with internally in the company, and
the worker must fully comply with them so that there is order
within the company.
11.3. Definition of mobbing
Unnumbered Art. - Any behaviour that violates
the dignity of the person, exercised in a repeated
and potentially harmful manner, committed in the
workplace or at any time against one of the parties
to the employment relationship or between workers,
which results in the undermining, mistreatment, or
humiliation of the person concerned, or which threatens
or harms their employment situation. Harassment
may be considered a discriminatory action when it is
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motivated by one of the reasons listed in article 11.2 of
the Constitution of the Republic, including union and
trade union affiliation. (National Assembly of Ecuador,
2019, art. unnumbered).
Conduct reported as harassment at work shall be
assessed by the labour authority, depending on the circumstances
of the case and the seriousness of the conduct reported. The
competent authority shall assess the circumstances according
to the capacity of the circumstances to put a worker under
pressure to marginalise, resign or leave his or her job.
The definition of harassment at work is understood in
a general way and two elements of the definition are focused
on a responsibility that is inconsistent for the employer since
it does not allow the worker who is a victim of harassment at
work to act and assert his or her rights. This does not benefit
the worker who is harassed, but rather ends up harming him/
her and confining him/her to a world of loneliness, depression,
anxiety, and fear.
11.4. Approval
For Bósquez et al. (2021) the approval is:
The legal institution called “visto bueno” is nothing
more than a conclusion, since it is a request that can be
made by any of the parties involved in the employment
relationship, i.e., employer or worker, historically it
arose to stop the abuse committed by employers when
they dismissed the worker without any reason and
without any procedure other than imposition. (p. 9)
Since the legal emergence of this institution, the
competent authority for its knowledge has been the Inspector, in
such a way that they are the ones who carry out the procedures,
in which the facts that they wish to make known are set out, as
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well as the evidence that serves as a basis for the existence of
the harassment of the worker, so that the authority investigates,
analyses and resolves, admitting or denying the request.
Argentina
Brazil
Chile
Uruguay
Paraguay
Bolivia
Colombia
Ecuador
México
General
law
X
X
X
X
X
X
✔
X
X
Generic
Law
✔
✔
✔
X
X
X
X
X
X
Job
code
Ref.
X
✔
X
X
✔
X
X
X
✔
Const/
C. T/
Jurisp
X
✔
X
✔
X
✔
✔
✔
X
Table 1:
Comparative Law
Source:
Gutiérrez (2020, n. p.)
According to the comparative table of Professor
Gutiérrez, we realise that, at the level of labour law, the countries
of Ibero-America have a big problem regarding harassment
among peers. This leaves a big gap and a great lack of protection
of work
ers’ rights, and it is not only necessary to apply the
Constitution of the Republic as the highest body. It is wrong
that there is no clarification on the subject in the labour code
and therefore it does not fully cover one of the basic principles
such as the indubio pro labore.
In the Argentinean legislation, there is no specific
regulation, there are only generic laws, such is the case in
countries like Brazil, where there is no specific law either, and
they do not give protection to the
victim of harassment at work
when it is perpetrated by his or her partner. This is the case
only in Colombia, where there is a specific law that protects
victims of harassment at work.
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12.
METHODOLOGICAL GUIDELINES AND RESULTS
The methodology used in this research is historical,
analytical-synthetic, with a qualitative and quantitative
approach, a mixed deductive and inductive method, using as
research techniques the survey to collect information, as well
as interviews with legal professionals specialised in domestic
arbitration, and determine whether the hypothesis put forward
to the researched problem is viable.
As for the universe of the research, it is in a single
segment, which are the legal professionals who are accredited in
the Forum of Lawyers of the Province of Guayas of the Republic
of Ecuador.
Of the 375 lawyers surveyed in the city of Guayaquil,
35% strongly agree that bullying among peers continues to be
a problem, 24% agree that bullying continues to be a problem
in the city of Guayaquil, 24% agree, 20% disagree and 24%
strongly disagree.
In question two in this regard, it is noted that 18% say
they strongly agree that, since the incorporation of the Labour
Code on harassment at work, it has achieved its purpose of
reducing the incidence of cases, while 21% say they agree, 32%
say they disagree and 28% strongly disagree.
Question three on this question shows that 27% of the
respondents said that they fully agree with the workers and that
they would be able to prevent the victim’s rights from being
further undermined.
In question five with respect to this result, 32%
of respondents totally agreed that it was a mistake of the
legislator to create a definition of mobbing in the Labour Code
and not to specify its types, 27% agreed, and 21% disagreed,
and 20% totally disagreed.
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In question six, about this result, 40% totally agree that
harassment at work harms the worker in their performance
in their area of work, 38% agree, 13% disagree, and 9% totally
disagree, from which it can be understood that harassment at
work among peers is a major problem in private companies in
Guayaquil.
In question seven, 53% strongly agreed, 25% agreed,
13% disagreed and the remaining 9% strongly disagreed. From
this result, it can be interpreted that there is an acceptance of
the need for a clearer definition of peer harassment at work in
the Labour Code and that the victim should also have the right
to take action to report it.
Question eight shows that 27% of the respondents
maintained their position of strongly agreeing that the offender’s
behaviour could decrease once article 172, paragraph 8 of the
Labour Code is reformed, 25% agree, while 22% disagree. This
is followed by 26% who strongly disagree with the idea that
peer harassment in private companies could be reduced.
In question nine, according to the percentages obtained
in this question, 30% said they totally agreed that there is no
real protection for workers who suffer harassment at work from
their colleagues, 24% said they agreed, 21% said they disagreed,
and the remaining 25% said they totally disagreed.
46% of legal professionals say they strongly agree
with the ratification of Convention 190 on violence and
harassment, 19% agree, 18% disagree and the remaining 17%
strongly disagree.
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CONCLUSIONS
According to the interpretation of the doctrine on
harassment at work, it is always provoked by a harasser,
which in this case is the colleague who seeks to cruelly harass
the harassed worker and belittle his work with insults, and
aggressions to the point of diminishing his dignity and self-
esteem, causing isolation within the work environment. There
are different types of harassment at work, such as verbal
harassment, which manifests itself when the harassed person is
assaulted with foul language, physical harassment with blows,
and psychological harassment, which makes the victim lose
concentration and keeps him or her isolated. In conclusion, the
doctrine is clear in detailing the different types of harassment
at work and it is necessary to expand the different types of
harassment in numeral 8 of article 172 of the Labour Code, in
order to avoid the general form obstructs the best application
to the different specific circumstances in which harassment at
work occurs.
According to the percentages given by the Ministry of
Labour, in the period 2017
12,057 complaints
were received
, in
2018 they amounted to 13,600, and in 2019 14,780 complaints
about harassment at work and good bystanders, an alarming
figure that since its incorporation into the Labour Code has
been increasing. This way, in the last three years, harassment at
work continues to be a major problem in the work environment
in the city of Guayaquil.
According to the results of the surveys carried out with
legal professionals, and specialists in labour law, it was possible
to verify the hypothesis and the objectives of the research, the
most affirmative results being that 37% of the professionals
surveyed totally agree
that the problem of harassment at work
lies in the fact that the Labour Code is not clear. It has been
verified that, although there is
a procedure of approval with
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the aim of preventing and reducing workplace harassment
among workers, there is no action to be able to denounce to the
Ministry of Labour by the victim worker against the harassing
colleague, thus violating labour guarantees and principles.
78% of the legal professionals surveyed and 100%
of the judges who specialised in labour matters interviewed
support the need to reform numeral 8 of article 172 of the
Labour Code, since the definition of labour harassment is very
general, and for this reason, the types of labour harassment
such as verbal, physical and/or psychological harassment are
not specified either. This means that the worker’s labour rights
and principles are violated. We must also bear in mind that in
our current regulations, the exercise of action is only available
to the employer against the harassing worker, but it is necessary
that the Labour Code also establishes that the harassed worker
can go to the Ministry of Labour to file a complaint against his
harassing colleague, prior to the relevant notifications to his
employer and if he ignores these notifications.
Moreover, it is recommended that the Labour Code be
reformed in its numeral 8 of article 172, replacing it with the
current numeral and expanding the definition and its types,
so that in this way the worker who is a victim of workplace
harassment also has the right to act. According to the doctrine
and the results of the surveys and interviews carried out, the
law is not clear and precise in the way in which these rights
should be considered in cases of harassment at work so that the
rights of the victim are not violated.
It is necessary that law students, legal researchers, and
legal professionals can continue to study this issue in order to
promote criteria and positive changes that have waited more
than 3 years the legislation governing workplace harassment in
Ecuador, existing legal gaps despite its incorporation made in
2017 in the Labour Code.
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For reforming the Code and to establish the extension
of the definition of harassment at work between workers and
that not only the employer has the right to bring an action for
approval, but also the worker who is the victim of harassment
at work by his or her colleague. This is relevant to guarantee
respect for the rights established in the Constitution of the
Republic of Ecuador and other rules governing labour law.
Then, to propose regular awareness-raising talks to workers
to reduce harassment at work. Finally, for designing a training
plan that contributes to the prevention of workplace bullying in
private companies.
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Received:
05/10/2021
Accepted:
14/05/2022
Daniel Steven Mosquera Garay:
Independent Legal
Researcher
Email:
danielmos1@hotmail.com
City:
Guayaquil
Country:
Ecuador
ORCID:
https://orcid.org/0000-0002-1220-6618
Karelys del Rocio Albornoz Parra:
Independent Legal
Researcher
Email:
kalbornozp@ulvr.edu.ec
City:
Guayaquil
Country:
Ecuador
ORCID:
https://orcid.org/0000-0002-9546-4259