Hacía las garantías de los derechos laborales de los empleados en provisionalidad: diferencia de criterios de las altas cortes

Abstract

In Colombia, public employees temporarily linked to being removed from the assigned position go to the judicial operators to define their employment situation, the reality they face is the uncertainty of not having a concrete solution in point of their job stability, due to the the dilemma presented in the rulings issued by the closing bodies, the Constitutional Court and the State Council. On the one hand, the Constitutional Court provides protection to workers by imposing as an obligation at the head of the employing entity the motivation of the administrative acts of termination of provisionally, but the position of the Council of State has been to give the same treatment to workers. Employees linked in provisionally as to employees who hold positions of free appointment and removal, for which it is not a requirement to motivate the acts of termination since they do not enjoy any type of job stability due to the nature of their relationship and the functions they perform in the exercise of his position. Dichotomy that has generated an increase in the action of the judicial system because of the difference criterion used by the high corporations in dealing with this matter. In order to establish certainty about the stability of public employees linked in provisionality, the objective of this work will be to determine what are the foundations that generate confrontation between the decisions of the constitutional court and the state council, in relation to the disengagement of provisional public employees, for this we will study the historical - legal evolution of the notion of work and administrative labor law and in this way point out the transformation of the administrative career in Colombia and how the figure of provisionality is introduced to the Colombian legal system and through the elaboration of a jurisprudential and normative analysis, we seek to clarify what the different interpretations of the closure organs, the Constitutional Court and the Council of State consist of, in resolving conflicts regarding provisional matters.