Abstract
The rules of the Labor Code that structure the legal procedure conceived to protect the fundamental rights of workers in their workplace (called “the tutela”) not only do not recognize any proportionality test but also hinder the applicability of fundamental rights understood as optimising principles, to the extent that the legal rules of such statute curtail and even prevent restorting to the optimising test, among other reasons, because of the protective goal of the tutela, since the protection of the fundamental rights of workers cannot rest on the “weight” of the right that appears to be at the other end of the scale. It is therefore essential that rights must be adjudicated as rules, which contradicts the proposal of most of the authors who promote the tutela in Chile.
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