Education does not correspond to the position held.

It’s no secret that the key to the company’s prosperity at all times has been and remains the professionalism of the workforce. On the other hand, even the most careful selection of personnel - with serious interviews and competitions for filling a vacant position - is not always able to protect the employer from hiring unprofessional personnel. Fortunately, labor law provides a solution for such situations. But before dismissing an employee for an unpleasant article, it is important to find out the features and consequences of this method of terminating employment relations, as well as to comply with a lot of formalities.

Failure to meet qualification requirements as grounds for dismissal: articles of the Labor Code of the Russian Federation

Inconsistency with the position held is one of the grounds for termination of the contract at the initiative of the employer. It is provided for in clause 3, part 1, art. 81 Labor Code of the Russian Federation. The same paragraph also contains a mandatory condition for such dismissal (it is also a confirmation of insufficient qualifications) - the results of the personnel certification.

An employee's qualifications are the degree of his professionalism, the totality of knowledge, skills and experience necessary to carry out the work function assigned to him. The level of qualification required to occupy a certain position is established by the employer, taking into account the norms of the tariff and qualification directory of works and professions and is indicated in the employee’s job description.

Failure of an employee to meet the qualification requirements established based on the results of certification does not necessarily entail the termination of employment relations. The right to resolve the issue of the future fate of the employee in this situation is left to the employer. He, in turn, can choose one of the following paths:

Leave the employee at work if there are good reasons for doing so and there is an opportunity to improve the employee’s qualifications to the required level. For example, you can send him to advanced training courses and then recertify him.
Transfer to another position suitable in terms of level of preparedness. By the way, if there are corresponding vacancies at the enterprise, the employer is obliged to offer the employee a transfer before dismissing him under the clause in question of the law. This obligation is expressly provided for in Part 2 of Art. 81 Labor Code of the Russian Federation.
Fire an employee. At the same time, dismissal at the mutual desire of the parties will be completely legal - this method is beneficial to both the employee and the employer. For the first, a pleasant moment will be the absence of a record of leaving “under the article” in the documents - this can negatively affect further job searches. The employer benefits from a less conflicting option for the employee’s departure; in addition, dismissal by agreement of the parties is associated with a smaller amount of documentation required when preparing.

When resolving the issue of terminating an employment relationship with a person due to non-compliance with qualification requirements, the employer must remember the guarantees provided by the labor law for certain groups of workers and certain cases of absence from work. Thus, it is impossible to terminate a contract on the basis in question with employees:

those on sick leave or vacation;
pregnant women;
women mothers of children under three years of age;
parents raising children under 14 years of age or disabled children under 18 years of age alone;
parents who are the sole breadwinners in a family with a disabled minor child or a child under three years old (the latter - provided there are at least three young children in the family).

Carrying out certification

To certify employees, a certification commission is created by order of the enterprise

The certification procedure - checking the degree to which employees' qualifications meet the requirements for their position - is usually regulated by the company's local regulations. For certain categories of employees (for example, doctors, teachers), the deadlines for mandatory certification are determined by law.

In general, the certification procedure can be represented as follows:

Formation of the composition of employees subject to certification (as a rule, based on length of service or time that has elapsed since the date of the last certification).
Determination of members of the certification commission. It is better if it includes representatives of the trade union and heads of departments, whose employees will undergo certification.
Issuance of an order for certification. The administrative document indicates the date of certification and approves the lists of those being certified and members of the commission.
Familiarization with the order of persons and commission members subject to certification. In this option, familiarization with the administrative document against signature will simultaneously serve as a notification to the employee about the upcoming “exam” (and, as a rule, it is necessary to notify everyone several months in advance).
Direct certification. The meeting should begin with the reading of the characteristics of the employee’s professional merits (in his presence), then the employee is questioned by all members of the commission, clearly demonstrates his knowledge and skills, or presents the commission with previously prepared materials. During the meeting, a certification protocol is kept; the fact that each employee has passed the certification is documented on a separate certification sheet signed by all members of the commission. On the reverse side of the certification sheet, the employee personally indicates his attitude to the results of the certification (agree or disagree) with a date and signature.
According to the rules of some organizations, citizens who do not appear for certification for unexcusable reasons are recognized as having failed certification and are automatically unsuitable for their position.
Following the meeting, the commission has the right to make one of the following decisions:
- the employee meets the qualification requirements for the position;
- the employee has demonstrated a high level of qualifications and is recommended for promotion;
- the employee has demonstrated a sufficient level of qualifications, but he is recommended to improve his skills and improve his qualifications through courses;
- the employee does not meet the qualification requirements for the position.
The final decision of the employer based on the results of the certification can be expressed in the form of an appropriate order.

All documentation compiled during the certification, in the event of a decision to terminate the employee’s work, will become the basis for issuing an order to terminate the employment relationship.

Photo gallery: examples of document preparation

A certification sheet is drawn up for each employee undergoing certification. An order to appoint certification sets the date for certification, approves lists of employees subject to certification and members of the certification commission. Based on the results of the certification, an order can be issued. The minutes of the meeting of the certification commission reflect the entire course of the meeting, including the questions asked. and the answers to them

Procedural aspects of dismissing an employee for inadequacy of the position held

After receiving unsatisfactory results of the employee’s certification, analysis of the legal grounds for dismissal and the manager making a decision on dismissal, the procedure for offering the employee suitable vacancies must be followed. If there are none in the state, it is also better to inform the citizen about this in writing in order to avoid future controversial situations. An employee may express disagreement with the transfer in the form of a statement.

Before dismissing a citizen who is a trade union member, it is required to request a motivated position of the trade union organization on this matter.

The decision to terminate a contract with an employee on the grounds under consideration can be made no later than two months from the date of certification. And you can dismiss an employee no later than the expiration date of a month from the date of receipt of the letter from the trade union.

The employer's subsequent actions in the process of terminating the employment relationship are standard:

Issuance of an order (unified form T-8) to terminate the contract.
Familiarization of the dismissed citizen with the order against signature. If he refuses to familiarize himself with the document, a corresponding act is drawn up.
Issuance of the final payment on the last day of work.
Entering information about the completion of activities into the work book, file, T-2 card.
Issuance of a work book or sending a notification about the right to receive it by post.
Notification of dismissal to interested organizations - military registration and enlistment office, bailiffs - if necessary.

Photo gallery: documents drawn up during dismissal

The employee can express his disagreement with the transfer, which is of utmost importance for launching the dismissal procedure, in the form of an application. The dismissal order must contain a reference to clause 3, part 1, art. 81 of the Labor Code and on the grounds - documents confirming the unsatisfactory results of the employee’s certification. If, based on the results of certification, the employee’s qualifications were recognized as insufficient, the employer is obliged to offer him a transfer to a suitable vacant position if there is one on staff

Sample entry in a work book

In the work book you need to refer to clause 3, part 1, art. 81 TK

What payments are due to an employee and how to calculate them (table)

Dismissal due to a person’s qualifications not matching the position held does not imply any special payments to the employee. The employer must issue the final payment on the last day of work (Article 140 of the Labor Code).

Name of payment	Calculation procedure (formula)	Example
Payment for time worked (including time allowances, premiums and bonuses)	Official salary/amount of working time per month × amount of time worked per month. Official salary × bonus in percentage terms/amount of working time in a month × amount of time worked in a month.	Plumber A.V. Nikolaev will be dismissed in accordance with the results of the certification on September 9, 2016. His official salary is 15,000 rubles. per month. According to the production calendar, September 2016 will have 22 working days. Of these, Nikolaev worked for 7. Payment for time worked will be: 15,000 rub./22 days × 7 days = 4,773 rub. The company has a Regulation on employee incentives, according to which all employees who have worked for this employer for more than a year are paid a salary bonus of 7% monthly. The payment of bonuses in accordance with the legal regulations does not depend on the reason for the employee’s dismissal. The amount of the bonus on the day of dismissal will be: 15,000 rub. × 7%/22 days × 7 days = 334 rub.
Reimbursement for earned but unused vacation days	Average daily earnings × number of days of non-vacation. Average daily earnings = income for the previous 12-month period/12 months/29.3 days. Number of unused days = (total number of vacation days/12 months × number of full months worked in the period) - number of vacation days used.	For the period 09.2015–08.2016, Nikolaev earned (excluding social and compensation payments) 192,600 rubles. During this time he was not on vacation or sick leave. Average daily earnings will be: 192,600 rub./12 months/29.3 days = 548 rub. The current working period for calculating vacation for Nikolaev is from April 1, 2016 to March 31, 2017. He is entitled to 28 days of vacation annually. Full months worked for the period - 5. The number of vacation days subject to compensation will be: 28 days/12 months × 5 months = 11.6 days. Vacation compensation will be: 548 rub. × 11.6 days = 6,357 rub.

Judicial practice: examples

As judicial practice shows in claims for reinstatement after dismissal under clause 3, part 1, art. 81 Labor Code, the most common mistakes made by employers are:

making a decision to terminate an employment agreement on the basis of the employee’s lack of production experience or lack of special education, which was not put forward as a mandatory requirement for occupying a position;

The order for the dismissal of accountant M. due to a discovered inconsistency with the position held (clause 3, part 1, article 81 of the Labor Code of the Russian Federation) states that she does not have a higher education. The court found that the plaintiff had a secondary specialized education and did not have any comments on her work during her work. No evidence was established to indicate that the plaintiff was unable to cope with the work. In the ruling on the claim of D., the Supreme Court of the Russian Federation indicated that in a case of dismissal of an employee there must be objective evidence that would confirm the employee’s non-compliance with the professional standards of this particular job. If there are no specific facts confirming the plaintiff’s inadequacy for the position held, then he is subject to reinstatement in his previous position.

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dismissal without certification;

Citizen N. was dismissed under clause 3 of Art. 81 of the Labor Code of the Russian Federation due to inconsistency with the position held. Certification of the plaintiff's suitability for the position held or work performed was not carried out; in order to justify the plaintiff's dismissal, the defendant referred to the plaintiff's lack of a Dental Nursing certificate.
Resolving the stated requirements, the court of first instance came to the correct conclusion that dismissal on the grounds specified in paragraph 3 of Art. 81 of the Labor Code of the Russian Federation, is possible only after certification of the employee. (Cassation ruling of the St. Petersburg City Court dated February 1, 2011 N 33–424/2011)

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failure to comply with the procedure for offering an employee a transfer to a vacant position in the state corresponding to his qualifications.

When dismissing an employee for unsuitability for the position held, it is important to comply with several procedural points at once: conduct certification in accordance with the law, offer the employee a transfer to a position suitable for his qualifications. In addition, during certification it is necessary to take into account some features of the assessment of qualifications - only those who are objectively unable to perform the functions assigned to them are subject to dismissal, in fact cannot cope with the work and are not able to achieve the required level of knowledge or skills in the near future.

I have a higher legal education, experience working in court, a bank, and an enterprise. Despite the fact that my main specialization is criminal law and procedure, all of my professional activities are related to business law, starting from personnel issues and ending with lending problems. For a long time I have been writing reviews of foreign and domestic media on business topics.

From a legal point of view, dismissal of an employee due to inconsistency with the position is a rather dubious procedure. It is very difficult to prove an employee’s inadequacy for the position he occupies - this is due to the specifics of the work and the field in which he works.

General provisions

As one of the grounds sufficient for the employer to terminate cooperation with a specialist, the Labor Code names the employee’s inadequacy for the position held or the work he performs due to his insufficient qualifications, confirmed by certification results. This norm is established by Art. 81.

Job inadequacy is defined as the employee's inability to properly perform the assigned job. This is expressed in the fact that the work does not have a satisfactory result, labor standards are violated, the products of such a specialist, if he works at the enterprise, are completely defective.

However, insufficient qualifications are a reason for which, in essence, there is no fault of the employee, just as it is not his fault, for example, in his state of health. These two reasons are only a criterion by which one can judge that a person does not correspond to the position. Dismissal with this wording is not only a complex procedure, it is also quite dubious in a legal sense. To be legal, it requires compliance with a huge number of conditions and sufficient grounds in the order when dismissing an employee for inadequacy of the position held.

If you still plan to fire an employee precisely for this reason, then first determine the category to which he belongs. There are several groups of workers who cannot be fired for this reason. For example, according to Art. 261, it is impossible to dismiss a pregnant woman on this basis, except in cases where the enterprise is dissolved. That is, no matter how low the competence and qualifications of the expectant mother are, she will continue to work.

The management also cannot fire a specialist who has no experience for this reason, due to the fact that he has only recently worked. That is, a young worker, a specialist who came to production after training, as well as minors remain on the company’s staff, even if they lack qualifications. Moreover, a specialist cannot be fired, even if he does not have a diploma of special education, if by law it is not necessary to have one. However, if education is required, but the employee does not have it, and production suffers, then dismissal is quite possible. You also cannot fire someone who is on vacation or temporarily unable to work. This general rule from Article 81 is applicable in this case.

Marriage and labor standards

Insufficient qualifications - this concept must have some kind of quantitative expression. For example, the lack of qualifications of a mechanic, assembler or blacksmith can be expressed in the fact that he allows systematic defects, or does not fulfill the norm. But then there must be clearly established standards and GOSTs by which this can be judged, and which do not contradict the law.

How to determine inconsistency in a profession whose results are not quantifiable, especially when it comes to clerks and people in intellectual professions? The products of their labor are not easy to detect, especially if the person performs job duties and does not violate the organization's routine. Here the quality of executed orders should be analyzed. If a person, in general, copes with them and has no complaints, it is almost impossible to justify his incompetence.

Offer another job

The Labor Code of the Russian Federation allows this dismissal with one fundamental reservation, whether the enterprise has another position suitable for this employee, and whether it was offered to him. Clause 3 of Article 81 states that such dismissal cannot be considered legal if the employee has not received such an offer, even if the new job is lower in position or less paid. In paragraph 31 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, it is stated that the directorate must provide evidence of the employee’s refusal to transfer to this position or the absence of a vacancy in such positions.

Here it should be clarified that the job must be suitable for the employee, that is, it is not enough to offer the secretary a position as an electrician if he does not have the skills or education for this. But if there were relevant positions, but they were abandoned, you can dismiss them. Moreover, the employee is not at all obliged to agree to it.

Union participation

The dismissal procedure becomes significantly more complicated in case of inconsistency with the position held, if a person who is a member of a trade union is dismissed, since Part 2 of Art. 82 of the Labor Code of the Russian Federation clearly stipulates the participation of an elected trade union body in this process. In this case, the procedure goes like this: the management sends a draft order and copies of documents that justify the decision to dismiss to the organization for consideration. From this moment on, the trade union body has a week to make a decision on this issue, justify its opinion and send it in writing to the employer.

If the employer does not consider the union's opinion motivated, he may not pay attention to it. Moreover, the article does not specify which opinion should be considered unmotivated. If the parties do not agree on their decisions, they must hold consultations within three days, the results of which are documented in the form of a protocol. If there is no agreement at this stage, the employer has 10 days to make a final decision, after which it is up to the state labor inspectorate. She may decide to reinstate the employee to his position.

How to determine lack of qualifications?

For this purpose, there is a Qualification Directory of Positions (JSC), which is designed to systematize the work of personnel management and regulate labor relations. Of course, it does not have a verbatim listing of all modern positions, but using it involves drawing analogies between similar positions.

The use of the directory should be considered using specific examples. Let's say a secretary has been working at a company for two decades. At some point, the director orders him to learn a computer at his own expense and threatens him with dismissal for not having the appropriate qualifications. However, the secretary uses the computer quite successfully; he is only unfamiliar with some complex programs.

p>First, let’s figure out what exactly the position of this secretary is called, and what duties he must perform. The ECSD lists several secretarial positions. For example, the manager's secretary, according to the directory, must use a computer to present information to superiors, collect and process it, and also print for the manager. That is, the handbook does not specify which programs the secretary should use. Moreover, when applying for a job, the main requirement for someone working with a computer is knowledge of the MS Word package.

If a company, for some reason, decides to switch to other software products and needs retraining of personnel, then Art. 196 of the Labor Code of the Russian Federation clearly obliges the employer to retrain personnel for their needs and improve their qualifications. From this we can conclude that qualifications that were acceptable when the secretary was hired, and became insufficient over time, cannot unconditionally be considered a reason for dismissal. The employer has the right to improve this qualification not at the expense of the employee, but at the expense of the organization.

Employee certification

Certification is the most difficult, ambiguous and “slippery” moment of the procedure for dismissing an employee whose qualifications do not meet the required ones. The non-compliance must be proven by the certification commission, which is formed at the enterprise, and based on the results of the certification, it creates a special conclusion. The procedure for the creation and operation of the commission is approved by the directorate of the organization, if there are no special government acts regarding employees. For example, employees of unitary state enterprises are certified according to their own program, approved by the Government of the Russian Federation dated March 16, 2000 N 234 (SZ RF. 2000. N 13. Art. 1373). Civil servants go through it, guided by Decree of the President of the Russian Federation of 03/09/1996 N 353 (SZ RF. 1996. N 11. Art. 1036), etc.

The question of creating a commission is also ambiguous, the problem is who should participate in it? After all, non-governmental organizations often simply do not have provisions on the certification commission in their documentation, and without this it is impossible to create one. In addition, a small organization simply will not have specialists who could become members of this commission. For example, how to make a conclusion about the insufficient competence of an economist who is the only one on the company’s staff?

When considering a case in court, the question will arise: how could the members of the commission decide on its inconsistency if their own competence is lower than that of the defendant? A video engineer, electrician or system administrator can hardly judge the knowledge of an economist. Therefore, most likely such a commission will concentrate on the personality of the person being certified, complaints against him or other factors that are not the subject of discussion at the specialized commission. As a result of such a trial, a biased assessment of the employee’s qualifications will be established, which will make it possible to recognize its conclusions and decisions as null and void. However, upon dismissal, the inconsistency with the employee’s position in the document remains in the document, since the court cannot change it.

Of course, this does not apply to those cases when it is necessary to dismiss a law enforcement officer, customs service or civil servant for this reason. In this case, laws approved by the state apply, methods and clear regulations for the actions of the certification commission have been developed, since such employees undergo certification once every 4 years.

conclusions

Dismissing an employee, even if he does not correspond to his position, (and especially an employee of a non-governmental organization) in compliance with all legal norms is a risky, time-consuming and partly futile matter, since it can be easily challenged legally.
The decision to dismiss is ultimately made personally by the head of the company, therefore, he is fully responsible for it. Members of the commission who participated in the illegal dismissal cannot be held accountable.
Since the incompetence of an employee is most often expressed in failure to comply with standards and production of defects, it can practically be regarded as a failure to fulfill labor duties. This is a disciplinary offense and, therefore, it falls under Art. 192 – 193 of the Labor Code of the Russian Federation on the imposition of penalties. An employee who has several penalties can be dismissed using clause 5, part 1, art. 81 Labor Code of the Russian Federation.
For an employee who has a number of penalties, the employer can, out of a sense of humanism, give a choice between dismissal “under the article” or settlement “at will” (Article 78 of the Labor Code of the Russian Federation), especially since this option will be more gentle for both parties. The employee does not receive a stain on his reputation, and the employer avoids potential troubles and difficulties with the dismissal procedure.

Among the grounds for dismissal of an employee at the initiative of the employer, the current labor legislation provides for the employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by certification results. This basis is established by clause 3, part 1, art. 81 of the Labor Code of the Russian Federation.

Expanding the terms

Before talking about the criteria that determine the incompatibility of an employee with the position held or the work performed, it is necessary to clarify the term “employee qualifications,” especially since it is not clearly defined in the legislative acts of the Russian Federation. The concept in question is present in several articles of the Labor Code of the Russian Federation. For example, Art. 57, as a mandatory clause of the employment contract, names the employee’s labor function, which means work according to the position in accordance with the staffing table, profession, specialty indicating qualifications, and the specific type of work assigned to the employee. Article 132 establishes the dependence of an employee’s salary on a number of factors, including his qualifications. The value reflecting the level of professional training of the employee is called the qualification category (Article 143 of the Labor Code of the Russian Federation).

The level of professional training of an employee, determined by the regulatory documents of the organization, necessary to perform the duties assigned to him (appropriate education), as well as the work experience required for this position are called qualification requirements. They are indicated for each position. Qualification requirements, together with the main responsibilities and knowledge necessary to occupy the position, are called qualification characteristics.

Article 21 of the Labor Code of the Russian Federation establishes the right of an employee to receive wages in accordance with his qualifications, complexity of work, quantity and quality of work performed. In this regard, the qualification characteristics established for employees occupying the same positions must be the same. The sources for determining qualification characteristics can be tariff and qualification reference books, which include a list of positions, specialties and professions indicating the main responsibilities of the employee, the content of the work, and its volume.

The responsibilities of employees must be specified in the employment contract or job description, which is recommended to be drawn up as an annex to the employment contract. The job description can also set requirements for length of service and work experience in the relevant positions. Uniformity and clarity in specifying the requirements for a position (profession), as well as the employee’s responsibilities, will allow the certification commission to objectively assess the employee’s suitability for the position held or the work performed and make an informed decision.

So, in labor legislation, qualification is understood as the level of preparedness, skill, suitability of an employee to perform work in a certain position or profession, determined by rank, class, rank and other categories.

The qualifications of an employee being hired are established based on educational documents, as well as documents confirming the employee’s experience in the position (profession) for which he is hired.

Sometimes an employee’s inadequacy for his position is discovered during his working life. The reasons may be changes in the technological process, improvement and complexity of equipment, the introduction of new technology, computerization of production activities. But you shouldn’t immediately talk about the employee’s lack of qualifications. The law provides the employer with the opportunity to increase it, and to do this at the expense of the organization, and not from the funds of the employee himself.

In cases where an employee does not improve his qualifications, does not master new technologies, computer equipment and, as a result, is not able to perform the duties assigned to him at the proper level, the question of his inadequacy for the position held or the work performed can be raised.

If the issue of the inadequacy of some employees for their position (job) is considered, then not only qualifications are taken into account, but also the impossibility of performing work in their specialty due to committing immoral offenses in everyday life (for example, if we are talking about a teacher), etc.

When labor standards can be established in quantitative terms, everything is simple. And if we are talking about an employee’s inadequacy for a position that requires intellectual work, it is difficult to talk about defective products, violations of standards, etc. Then you need to analyze:

The quality of execution of specific instructions from the manager;

Cases of violation of deadlines for completing tasks;

Is the employee successfully coping with the overall amount of work;

Does the level of his qualifications correspond to professional qualification requirements?

If there are no complaints, much less disciplinary sanctions, it will be almost impossible to establish and substantiate the employee’s incompetence. Again, you need to look at how competently and clearly the tasks are set by management, and whether the amount of work is evenly distributed between employees of one structural unit. Is this realistic in all cases?

You should know it. How is a lack of qualifications determined?

Firstly, the qualification requirements for positions are established by the Unified Qualification Directory of Positions for Managers, Specialists and Other Employees, approved by Resolution of the Ministry of Labor of Russia dated August 21, 1998 N 37 (hereinafter referred to as the ECSD). Resolution of the Ministry of Labor of Russia dated 02/09/2004 N 9 approved the Procedure for applying the ECSD, clause 1 of which directly indicates that this Directory is intended to resolve issues related to the regulation of labor relations, ensuring an effective personnel management system for organizations, regardless of ownership and legal forms activities. If a position in an organization is called something else, then when considering the issue it is necessary to “link” it to similar positions established in the ECSD.

Secondly, you need to know how non-compliance with the job due to insufficient qualifications is expressed - in systematic defects or failure to comply with labor standards. Consequently, at the enterprise, rationing issues must be clearly regulated and not contradict the relevant standards established by the current by-laws, GOSTs, etc.

During work, a specific employee of the organization is tested for professionalism and suitability for work in modern conditions during certification.

Theoretically, personnel certification is a procedure for determining the qualifications, practical skills, and business qualities of an employee and establishing their compliance or non-compliance with the position held. Certification is carried out in order to rationally arrange personnel and use them effectively. Based on the results of the certification, a decision is made that changes or maintains the position of the certified employee.

Experts consider the three most important goals of personnel performance assessment to be:

1. Improvement of current work.

2. Determination of production goals and objectives.

3. Establishing training needs.

The main objectives of certification are:

Objective assessment of employees’ performance and determination of their suitability for the position held;

Contributing to improving the efficiency of the organization;

Identification of prospects for using the potential capabilities of managers and specialists;

Formation of highly qualified personnel of the organization;

Ensuring the possibility of personnel movement;

Stimulating the professional growth of employees.

Mandatory certification is established by special federal laws in relation to a small number of certain categories of employees in certain sectors of economic activity. These include workers:

Carrying out activities related to operational dispatch control in the energy sector;

whose activities are related to the movement of trains and shunting work on public railway tracks;

Responsible for ensuring the safety of navigation;

Those employed at hazardous production facilities;

Persons employed at chemical weapons storage facilities and chemical weapons destruction facilities;

Aviation personnel;

Performing work with sources of ionized radiation;

Library staff;

Employed at space infrastructure facilities;

Teachers and managers in educational institutions;

Certification involves a differentiated approach to different categories of employees in accordance with the level of complexity of the tasks being solved or job duties and responsibilities reflected in their job descriptions.

Certification of employees in non-managerial positions is usually carried out according to the following basic parameters:

Attitude to work;

Teamwork;

Problem solving skills;

Communication skills;

Skill level.

But management specialists are also assessed according to the following criteria:

Responsibility;

Initiative;

Leadership;

Personnel Management;

Planning and organization skills.

Based on the results of the certification, management determines whether a person has the competence required for a given workplace. If it is, the employee receives an appropriate salary. Employees whose competence is much higher than what is required in their position, as a result of certification, become the first candidates for higher positions. If it turns out that the employee has insufficient competence, then a program for his training and development is formed or a decision is made to replace him.

It cannot be assumed that by conducting certification, the employer provides itself with the right to dismiss unwanted employees. Certification is a strictly formalized procedure, and the slightest deviation from the prescribed procedure can negate all its results. Here is what needs to be taken into account so that the court does not subsequently have doubts about the legality and validity of the certification:

1. The procedure and conditions for certification are determined by the relevant Regulations approved by the head of the organization, unless any other procedure is established for a particular category of employees by special regulations. For example, heads of federal state unitary enterprises are certified in accordance with the Regulations on the certification of heads of federal state unitary enterprises, approved by Decree of the Government of the Russian Federation of March 16, 2000 N 234; federal civil servants - in the manner established by the Regulations on the certification of state civil servants, approved by Decree of the President of the Russian Federation of 01.02.2005 N 110, etc.

All employees subject to certification must be familiarized with the Regulations against signature. To avoid possible misunderstandings, it is recommended to include a clause in the employment contract with the employee regarding the obligation to undergo certification.

2. The Regulations must cover all issues of organizing and conducting certification. Items that must be included include exactly which employees must undergo certification, how often it is carried out, what criteria will be used to evaluate those being certified, who is included in the certification commission, what documents are drawn up before, during and after certification, what results it can produce bring. The entire certification procedure must be described in detail.

The following sections can be included in the Certification Regulations:

General provisions;

Preparation for certification;

Carrying out certification;

Assessment of the certified employee;

Legal consequences of certification;

Procedure for consideration of labor disputes.

Auxiliary acts ensuring the organization and conduct of certification are the internal labor regulations of the organization, Regulations on the structural divisions of the organization, job descriptions of employees.

To implement the stages and procedures of certification, orders from the head of the organization on its implementation, reviews of the employees being certified, certification sheets, certification schedules for categories of employees and structural units, samples of minutes of meetings of the certification commission and other documents are required.

Certification can be carried out either planned - in accordance with the schedule approved by the certification commission or the head of the organization, or unscheduled - on the initiative of the employee himself or his immediate supervisor. The timing of scheduled certification of employees of different organizations differs from each other, but, as a rule, certification of employees should be carried out at least once every five years.

To carry out certification you must:

Form an attestation commission;

Make lists of those certified and a schedule for their certification;

Prepare the necessary documents for the work of the certification commission;

Approve the prepared list of questions for certification tests.

What kind of commission...

An important question is: how and with whose participation should the certification commission be created? Firstly, in many non-governmental organizations there is simply no provision for an attestation commission “as unnecessary”, and without it a commission in a private company in most cases cannot be created. Secondly, it matters how qualified workers will be included in the commission, especially in a small company. Thirdly, what profession and specialty will the members of this commission have. So, it is quite possible to challenge the decision of the certification commission on the listed grounds: the conclusions of this commission about the employee’s business qualities are subject to assessment in conjunction with other evidence in the case. Such nuances must be taken into account when forming the certification commission. If the results of the certification may become the basis for the dismissal of an employee, the certification commission must include a representative of the primary trade union organization (Article 82 of the Labor Code of the Russian Federation).

The certification commission consists of a chairman, deputy, secretary and members of the commission. Its composition is approved by the head of the organization. He also approves the certification schedule, which is brought to the attention of each person being certified no later than a month before the event. The schedule indicates the date and time of the certification, as well as the date of submission of the necessary documents for each certified person to the certification commission.

In accordance with the Regulations on Certification, no later than two weeks before the start of the certification, the following documents are submitted to the certification commission for each employee being certified:

A questionnaire characterizing the personality of the person being certified;

Final sheet with test results;

A review of the employee subject to certification, signed by his immediate supervisor.

A review is the main document characterizing the level of theoretical and practical skills of an employee, his personal and moral qualities, as well as the suitability of this level for the position held. The review should reflect not only indicators common to all categories of personnel, for example, level of education, length of service in a given position, etc., but also the individual characteristics of the person being certified - the degree of independence in the performance of official duties, the quality of their performance and responsibility for the assigned tasks. business, the ability to adapt to a new situation and apply new approaches to solving problems that arise, the ability to organize the work of subordinates, etc.

The regulations on certification of various organizations contain the following list of indicators for assessing the qualifications of employees:

Education;

Work experience in the specialty;

Professional competence;

Work ethics, handling style;

Ability to be creative and entrepreneurial;

Ability to carry out commercial activities;

Self-esteem ability.

The assessment of the professional qualifications of the certified employee is based on the conclusion about his compliance with the provisions of the job description, determining the share of his participation in solving the assigned tasks, the complexity of the work performed and its effectiveness. The results of the employee's certification are entered into the certification sheet.

An individual interview is conducted in the presence of the person being certified and his immediate supervisor.

In order to avoid disputes, the basis for developing regulations on personnel certification can be taken from the norms of the Decree of the State Committee for Science and Technology of the USSR and the State Committee for Labor of the USSR dated 05.10.1973 N 470/267 “Regulations on the procedure for certification of management, engineering and technical workers and other specialists of enterprises and organizations of industry, construction, agriculture, transport and communications" (hereinafter referred to as Resolution No. 470/267). This resolution is still a universally valid regulatory act, because applies to all sectors of the national economy. According to clause 12, the person being certified is required to attend the commission meeting. If you fail to appear, the certification may be postponed, but not more than two weeks. If the employee fails to appear again without good reason, he or she is considered uncertified.

From the Regulations on the certification of state civil servants of the Russian Federation dated February 1, 2005 N 110 (as amended by Decree of the President of the Russian Federation dated March 19, 2013 N 208) it follows that certification is carried out with the invitation of the certified person to a meeting of the certification commission. If the person being certified fails to appear at a meeting of the said commission without a valid reason or refuses certification, the employee will be subject to disciplinary action in accordance with the legislation of the Russian Federation, and the certification will be postponed to a later date (clause 16).

As can be seen from these fundamental documents, there is no need for the manager to confirm the disrespect of absence. However, if the case goes to court, in order to win it, the organization will have to present:

The current certification regulations, adopted in accordance with all the rules;

A document confirming that the employee, against signature, has familiarized himself with both the local act and the notification (or schedule) of the certification.

The regulations on the certification of a specific organization may indicate: “If it is impossible for individual members of the Commission or the certified employee or invited persons whose presence is necessary to attend a meeting of the Commission, these persons are obliged to notify the Secretary of the Commission about this no later than one day before the meeting of the Commission.

Valid reasons for employee absence:

Illness of the certified employee or members of his family, confirmed by the relevant medical document;

Business trip of the certified employee;

Annual paid leave of the certified employee;

Other cases of non-appearance that the Commission may consider valid." If an employee refuses to receive notification of certification, the employer must draw up an appropriate act so that the meeting of the certification commission is held in the absence of the employee.

According to established practice, in relation to personnel of organizations in various sectors of the economy and management, the certification commission gives one of the following assessments of the activities of the certified person:

Corresponds to the position held;

Corresponds to the position held, subject to improvement of work and implementation of the recommendations of the commission with re-certification after a year;

Doesn't suit the position.

However, the certification commission also gives its opinion on issues related to the fuller use of the potential of employees who have passed the certification:

Can an employee be included in the personnel reserve;

The need for training and advanced training;

Personnel movements;

Changes in wages.

In accordance with the local regulations in force in the organization on the certification of employees, certification commissions can make one of the following decisions:

Important. The conclusions of the certification commission about the employee’s business qualities are subject to evaluation in conjunction with his other characteristics. The business qualities of an employee should, in particular, be understood as the ability of an individual to perform a certain job function, taking into account his or her professional qualifications (presence of a certain profession, specialty, qualification) and personal qualities, for example, health status (which may affect the quality of work ), a certain level of education, work experience in a given specialty, in a given industry (see paragraph 10. Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2: “If the court finds that the employer refused to hire due to circumstances related with the business qualities of this employee, such a refusal is justified").

3. Maintain the terms of the employment contract with the imposition of an additional obligation on the employee - to eliminate the shortcomings noted by the certification commission and undergo re-certification within a year from the date of the decision.

4. Change the content of the employment contract regarding the employee’s labor function.

5. Terminate the employment contract.

At the same time, persons who do not have special training or work experience established in the section “qualification requirements”, but have sufficient practical experience and perform their job duties efficiently and in full, on the recommendation of the certification commission, as an exception, can be appointed for the relevant positions in the same way as persons with special training and work experience.

Thus, when making a decision, the certification commission must take into account not only the formal compliance or non-compliance of the employee with the position held or the work performed, but also the real possibility of performing the work assigned to him.

Therefore, the certification commission, having identified the absence of certain knowledge, skills and abilities in an employee, must point this out to him and, taking into account the nature and extent of deficiencies in the employee’s training, determine a deadline for their elimination. The question of dismissal can be raised only if, after the expiration of this period, the employee continues to perform the assigned work poorly. The issue is resolved by a simple majority of votes of the commission members in an open vote; if the votes are equal, the employee is recognized as appropriate for the position.

There is a result. What's next?

The certification results are communicated to the employee being certified immediately after voting. Having familiarized himself with the voting results and the commission’s recommendations, he signs the certification sheet; after which this document, certified by a seal, is stored in the employee’s personal file (if it is maintained) until the next certification.

The decision of the certification commission is documented in a protocol, which is signed by the members of the certification commission present at the meeting. Notification of the certification results must be given to the employee or sent by mail (registered mail) no later than five days after the day of certification, unless otherwise provided by the current document. An extract from the protocol of the certification commission is attached to the personal file.

The head of the department in which the certified employee works is obliged to inform the general director of its results within a week after the certification. The submission must indicate recommendations on the continuation (termination) of the employment relationship, transfer, change (maintenance) of the scope of work performed, the amount of wages, and the need to improve the employee’s qualifications.

Based on the decision prepared by the certification commission, information about the results of the certification performed is reflected in section IV of the employee’s personal card in Form N T-2.

The manager issues an order in which the results of the certification are analyzed, measures are approved to improve work with personnel, implement the recommendations of the certification commission, and also conduct the next certification of employees. It is not necessary to approve the results of certification and resolve personnel issues in one order, since the latter relates to an order regarding personnel.

According to the order on measures based on the results of certification, it is necessary to prepare orders for each item: on transfers, incentives and other appointments.

The Labor Code does not establish the time period during which, based on the results of certification, the employer has the right to make a decision to continue, change or terminate labor relations with employees. In practice, the transfer of an employee to another job or his dismissal based on the results of certification is allowed after two months after its completion.

If an employee is found unsuitable for his position, the head of the company may dismiss him on the basis of paragraphs. 3 hours 1 tbsp. 81 of the Labor Code of the Russian Federation. Dismissal on such grounds is a rather complex and legally “slippery” procedure. A lot of conditions provided for by law must be met for the dismissal to be lawful.

The first significant point, if insufficient qualifications of an employee are nevertheless established, should be considered his belonging to one or another preferential category of personnel. There are several categories of employees who cannot be dismissed on this basis:

Pregnant women, except in cases of liquidation of the organization. Consequently, no matter how low the qualifications of a pregnant woman, she cannot be fired (Part 1 of Article 261 of the Labor Code of the Russian Federation);

Workers who do not have sufficient experience due to a short period of work (young workers and specialists) - clause 3 of the Decree of the President of the Russian Federation on certification of civil servants dated 02/01/2005 N 110 (as amended by Decree of the President of the Russian Federation dated 03/19/2013 N 208), as well as minors (Article 269 of the Labor Code of the Russian Federation);

An employee during the period of his temporary disability and while on vacation, with the exception of the case of liquidation of the organization or termination of activities by the employer - an individual (Part 6 of Article 81 of the Labor Code of the Russian Federation).

The next very important condition is the presence or absence in the organization of another job suitable for the given employee, as well as whether such work was offered to him. Dismissal due to the discovered inconsistency of an employee with the position held or the work performed due to insufficient qualifications, in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, is allowed only if it is impossible to transfer a person with his consent to another job. Without compliance with this condition, dismissal cannot be recognized as legal - the employee must be offered another job or position (including lower-paid work or a lower position) that he can perform for health reasons and qualifications. Therefore, the employee must provide a list of all available vacant positions.

Therefore, the order must contain an order to the personnel department to offer employees a transfer to other positions available in the organization. If the employee agrees to the transfer (such consent must be expressed in writing), an order for the transfer is issued in accordance with Art. 72.1 Labor Code of the Russian Federation. If he refuses the transfer, or there are no suitable vacancies in the organization, he can write “I refuse the offered job” on the offer itself or submit an application addressed to the head of the organization. In this case, he is fired. The head of the organization must issue an order in the unified form N T-8 (N T-8a).

Taking into account the above, the order makes the following entry: “Dismissed due to inadequacy of the position held due to insufficient qualifications, confirmed by the results of certification, and refusal to transfer to another position, clause 3 of Article 81 of the Labor Code of the Russian Federation.” The basis for issuing an order may be, for example: an order to carry out measures based on the results of certification, minutes of a meeting of the certification commission, a proposal to transfer to another job, an employee’s statement of refusal to transfer to another job.

Based on the order, a corresponding entry is made in the employee’s work book. If an employee is dismissed, the order and work book indicate - “due to inadequacy of the position held”; if a worker, then - “due to incompatibility with the work performed.”

The order should be drawn up in one copy. After the document is signed by the manager, the employee must be familiarized with it against signature (Article 84.1 of the Labor Code of the Russian Federation).

If, as a result of certification, a discrepancy is revealed with the position held (work performed) of an employee who is a member of a trade union, then his dismissal is carried out taking into account the reasoned opinion of the elected trade union body (Part 2 of Article 82 of the Labor Code of the Russian Federation). It should be taken into account that the employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the trade union body.

To summarize, we can say that termination of an employment contract with an employee in accordance with clause 3, part 1, art. 81 of the Labor Code of the Russian Federation based on the results of certification is not necessary. The inadequacy of an employee for his position is determined by objective data, and not by the employee’s subjective attitude towards his job responsibilities. The main condition for dismissal under clause 3 of Art. 81 of the Labor Code of the Russian Federation - absence of guilt in his actions, i.e. when failure to fulfill or improper fulfillment of duties under an employment contract is due to the lack of necessary knowledge, skills, and appropriate qualifications. If education, qualifications, skills, experience allow the employee to properly perform his job functions, but the employee, through his own fault, performs them improperly, then the specified grounds for dismissal are not applicable. In this case, the employee must be dismissed for violations of labor discipline. For example, during the year he was late for work several times, which was reflected in his time sheet. Then it was recorded that this employee appeared at the workplace in a state of alcoholic intoxication. At the same time, he performed his official duties in full. As a result of the scheduled certification, the employee was dismissed, but no evidence was presented of failure to perform his job function due to his insufficient qualifications. In the event of a legal dispute, the termination of the employment contract will be declared illegal by the court.

Conclusions:

1. Inadequacy for the position held or the work performed due to insufficient qualifications can be defined as the objective inability of the employee to perform the work properly assigned. The inability to qualitatively perform the work stipulated by the employment contract is manifested in unsatisfactory results, systematic defects, failure to comply with labor standards, etc.

2. The provision recorded in the minutes of the meeting of the certification commission that the employee is not suitable for the position held is not enough to dismiss him. The court evaluates the results of the certification in conjunction with other evidence in the case (clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). For each such fact, you need to have a supporting document - a memo from the employee’s immediate superior, an act signed by at least two witnesses, customer complaints. In court, not only the final documents will be useful, but also certification materials - test results, expert assessments, performance characteristics, employee reports on the work done, etc.

3. To dismiss an employee due to inadequacy of the position held or the work performed, systematicity in the improper performance of his job duties is necessary.

4. Dismissal of an employee if he is not suitable for his position or work performed (especially from a private organization) in compliance with all legal norms established by law is a complex, time-consuming and partly risky matter, since almost every step of the employer can be challenged. So, before dismissing an employee, an organization will often have to spend a lot of effort and time, do a huge and, one might say, jewel-like job, in order to create a certification system that will eliminate any possibility of reinstatement of the dismissed person at work with all the ensuing consequences. Or it's just not worth trying...

It often happens that an employee is not suitable for the position he occupies, so this becomes the first reason why an employer can fire a worker. Depending on what kind of relationship develops in the team and with the employee himself, instead of one workplace, he may be offered another. If the employee does not meet any criteria, then the employer may make a decision called dismissal for unsuitability for the position held. The problem, of course, is painful and requires a special approach. In this case, you need to remember that everything must be properly documented, since in another case the employee will be able to challenge the decision and receive decent compensation for moral damage caused. This happens very often.

What are the general provisions?

The Labor Code states that inadequacy for a position is nothing more than a lack of qualifications to perform a certain job. But in fact, a person may be absolutely not to blame for this, for example, he cannot perform work due to his health. Also, the administration of the enterprise should not fire a young specialist who has just arrived and does not yet have the proper work experience, according to this article, the only exceptions can be those specialists who do not have the proper education and the enterprise suffers losses because of this. You cannot fire a person who is on vacation or temporarily incapacitated. In all other cases, dismissal due to inadequacy of the position held is possible.

Who can be fired for inadequacy of the position?

Before releasing an employee from his place of work, it is necessary to familiarize himself with all the laws, since some points may be considered unlawful, and then the employer will have to pay a large sum of money as compensation. The main condition for hiring is that the future employee has certain skills, experience and knowledge, therefore, if all this is not available and the employee cannot perform his job at the proper level, and production incurs losses, then it is quite possible to fire the employee. In this case, it will sound like dismissal under an article for inadequacy for the position held.

Each employer has its own specific criteria and requirements that are met, and the employee, before getting a job, must carefully read them. If qualifications are not enough, then he can gradually increase his level, otherwise the employer can conduct certification and familiarize the employee with its results in writing.

What are the grounds for dismissal?

All grounds on which a person can be dismissed from their position are divided into several categories:

An employee may hold a position, but at the same time be on sick leave for a long time. It is very difficult to dismiss a worker for this reason; in this case, he must have a very long disability, and if his illness is curable, then the employee is not subject to dismissal.
The second reason is the low level of qualifications. Here the employer may also face significant problems. The fact is that an employee can file an application for consideration in court, because not everyone is satisfied with such wording as dismissal for inadequacy of the position held. In order for an employee to constantly improve his skills, the employer must send him to special courses. If, nevertheless, the employee does not improve his qualifications, then in this case it would be appropriate to conduct certification to test the knowledge and skills of the organization’s employee. Certification consists of exams that are divided into two types: mandatory and at the request of management. For example, doctors must undergo mandatory certification within a certain period, and if the results are negative, they are fired based on the results of the certification. The inconsistency with the position held, as they say, is obvious in this case.

Who cannot be fired for being unsuitable for their position?

There are several employees who cannot be fired due to non-compliance with the requirements of the position and the employer:

An employee who was on vacation at the time of certification.
Employees who are going on maternity leave.
Employees who can provide a certificate stating that they have been sick for a long time.
Employees who are already on maternity leave.
Single mothers who have children under fourteen years of age.

The law pays special attention to employees who are minors. Dismissal under the article for inadequacy of the position held in this case should be considered by a special labor authority.

Controversial issues that may arise during dismissal for inadequacy of the position

To ensure that dismissal does not cause too many problems for the employer, who has decided to take advantage of his employee’s long absence due to health reasons, the manager will need to obtain special evidence, for example, certificates and a medical examination of the employee can be used, where all health deviations will be described in detail. To get more accurate results, the employer has every right to contact the employee to ask for an additional medical examination. Dismissing an employee for inadequacy for the position held after certification is also not always a suitable option; the manager must give his subordinate the opportunity to improve, for this he will need to take additional courses and retake the exam again.

All controversial issues can be resolved in another way, for example, you can offer the employee a different position. If the employee does not want to start another job, then the employer can safely decide to dismiss him. It is very important to know that the employer will have to protect himself in every sense of the word, therefore the law recommends collecting all evidence in writing about the employee’s unsuitability. Dismissal for unsuitability for the position held is a serious decision, so the entire professionalism of the employee must be properly assessed. There can be no bias in this case. To make such a decision, a special commission is created. All papers that will be issued for consideration by the commission must contain the signature of the employee, since after the employee goes to court, he can say that he did not take any exams or courses. An employee may refuse to sign any documents, but in this case a special act must be drawn up, which will contain other signatures indicating that the signature of the person being dismissed is not there due to his refusal.

How is certification carried out?

If an employee does not undergo certification, as required by law, dismissal may follow due to inadequacy for the position held. Certification helps to check the level of qualifications of employees, and there are a certain number of professions where certification is a prerequisite. It includes several stages:

Employees who must undergo certification are determined.
Members of the certification commission are determined; this should include representatives of trade unions, heads of departments, and employees who are preparing to undergo certification.
An order for certification must be created. Everyone who takes part in it must familiarize themselves with the order.
The certification itself is carried out directly, where a characteristic is given for each employee who presents his report and shows his professional skills and abilities.
During certification, a special protocol is drawn up, where all members of the commission sum up the results and sign.

If an employee does not show up for certification for an unexcused reason, then he automatically does not pass it, and the manager has every reason to dismiss him under the article for inadequacy of the position held.

Maintaining documentation is a very important point, because it is on the basis of it that the manager has every right to terminate all cooperation with the employee and issue an order to terminate the employment relationship.

What can an employer do after certification?

If an employee has not passed the certification and has shown that he cannot perform the duties required of him, it is not at all necessary that this will be followed by the dismissal of the employee due to inadequacy of the position held. Everything will depend on what decision the employer makes. For example, a manager may keep an employee at work, but require him to take additional courses and recertify. The manager can also familiarize the employee with all available vacancies and offer to move to another position that may be closer to the employee of the organization.

The issue can be resolved in a more suitable way for both parties. For example, few people will like an entry in the work book about dismissal due to inadequacy for the position held, and the employee may have problems finding employment in another organization. Therefore, in most cases, both the manager and the employee make a decision to dismiss by agreement of both parties with the wording “At their own request”.

What is the procedure for dismissing an employee?

As soon as the manager has a reason why he can fire his employee, be it a health problem or failure to pass certification, a special order is issued. But the employer must study the Labor Code of the Russian Federation in detail; dismissal for non-compliance with the position held also requires compliance with a special procedure. The boss may offer his subordinate to move to another position, but if the organization does not have such an opportunity, then he will need to take a written application. It is also considered an important factor that the decision to terminate the employment contract can be made after two months after certification. If the decision to release an employee from work is made, then a dismissal order is issued to the organization. Inconsistency with the position held is indicated as the reason for termination of the contract. The citizen will be required to read this order and sign, after which he will receive the final payment on the last day of his work. All information that the contract is terminated and the employee’s work activity in this organization is terminated is entered into the work book, which is handed over to the former employee.

Algorithm of action during the dismissal process

Dismissal due to inadequacy of the position held is a rather serious procedure. That is why the manager needs to adhere to the following steps:

It is necessary to conduct an exam; you can familiarize yourself with all the aspects of such a test in the Regulations on Certification.
Treat the employee with understanding and offer him other available vacancies.
All necessary documents are collected, which are the main reasons for dismissal, and an order is attached to these documents.
After dismissal, a note is made that the employee is fired, and the reason why he is leaving is clearly indicated. It is imperative to indicate that the employee was unable to cope with his duties and did not pass the certification.
Dismissal due to inadequacy of the position held does not provide for any additional payments; the employee can count on his salary and on payments for vacation if he did not have time to take it off.
All payments are made on the last day when the employee leaves, and all relevant entries are made in the work book.

As soon as the procedure for dismissal for non-compliance with the position held is carried out, all employment agreements between the manager and the employee are terminated.

Cases in judicial practice

Often, a serious conflict arises between an employee and an employer, which can be resolved exclusively through legal proceedings. For example, an employee may not be satisfied with the results of the certification. In this case, the manager is advised to consider the dismissal of his employee very carefully. After all, it often doesn’t cost an employee anything to prove that the employer is simply surviving him. But if the manager behaves correctly and provides the employee with other vacancies in the organization, and in case of refusal, documents everything, then the court will definitely take this fact into account. In judicial practice, there are also situations when the employer insists on dismissing an employee and does not allow him to undergo certification; in this case, the court will definitely be on the side of the employee. The court will definitely ask the question why the manager believes that the employee does not have the right to hold a particular position, and a simple answer will not be accepted, since it will be necessary to provide evidence. If the court considers that the employer has exceeded his powers and his behavior does not correspond to official relations, then the dismissed citizen will be able to be reinstated in his position, and the manager will also be required to pay monetary compensation for moral damage.

When considering such an issue as dismissal for inadequacy of the position held, judicial practice also knows a lot of options when managers turn out to be right and win the dispute. But in order to make such a decision, the organization must take appropriate measures:

When hired, the employee knew perfectly well all the job descriptions that he had to carry out at the proper level, and they were signed by the employee himself.
The employee knew that the organization had mandatory certification, and he was familiar with the procedure for conducting it, but at the right time he could not prove his qualifications. The results of the certification must also be signed by the employee.

If all documents have been collected properly over a long period of time, then the issue of dismissal will be resolved quickly and impartially.

Summing up, we can conclude that dismissal for non-compliance with the position held is a labor-intensive process and requires compliance with all legal norms. The final decision to dismiss an employee can only be made by the head of the organization, therefore he bears full responsibility for such a decision. An employee's incompetence can lead to manufacturing defects, so the manager can impose penalties on his employee. Several such penalties will entail dismissal under a special article of the Labor Code, which cannot be challenged in court. The issue of dismissal can be resolved amicably; for this, the head of the organization can offer his employee dismissal at the mutual desire of both parties. In this case, everyone wins. The employee will be able to find another job without any problems, and the employer will be able to avoid unnecessary difficulties.

The basis for dismissal, such as inadequacy for the position held, is known and used by many employers. However, some of them do not take such dismissal seriously enough, and this is a rather complex and time-consuming procedure - due to the fact that it is necessary to take into account the results of certification. Nevertheless, dismissal on the basis mentioned is the only acceptable one, so it is still better for the employer to spend time and effort and create a certification system - otherwise dismissal on this basis may be considered illegal. We will tell you in this article what an employer needs to know and what he must do before dismissing him for inadequacy for the position held.

Employee qualification

According to clause 3, part 1, art. 81 of the Labor Code of the Russian Federation, a relationship with an employee can be terminated at the initiative of the employer if the employee does not comply with the position held or the work performed due to insufficient qualifications, confirmed by certification results.
To establish insufficient qualifications, you need to understand what qualification is: by virtue of Art. 195.1 of the Labor Code of the Russian Federation is the level of knowledge, skills, professional skills and work experience.
The characteristics of the qualifications required for an employee to carry out a certain type of professional activity are currently established by uniform qualification reference books and professional standards. Initially, the employer can determine the level of qualifications based on educational documents, as well as documents confirming work experience in the position (profession, specialty) for which the employee is hired. The main document confirming work experience, of course, is the work book. It can also be certificates, certificates and other documents confirming that the employee has received additional education or other additional knowledge, or completed advanced training courses.
As for the employee’s skills and professional skills, they are tested during their work activity.

Note! The employer must establish qualification requirements in job descriptions or an employment contract based on the requirements of professional standards, if they are mandatory for a given position (specialty), or qualification reference books. If professional standards have not yet been approved, and there are no exact characteristics in the reference books, employers establish the required level of knowledge, skills and work experience on their own.

So, in the course of work, the employer may discover that the employee does not cope well with his job responsibilities, makes mistakes, does not meet the deadlines for completing tasks, etc. And here the question may arise about the employee’s inadequacy for the position held.
But before taking any action, the employer should still find out why the employee cannot cope with his responsibilities. It is possible that responsibilities are unevenly distributed among employees, labor standards are too high, the employee was not sent for training or advanced training when necessary (for example, when changing technological processes in the organization, introducing new technology, improving equipment), etc.
In addition, in connection with the adoption of professional standards, the requirements of which are mandatory for certain categories of employees, or the independent decision of the employer to apply professional standards to determine qualification requirements for employees, the requirements for the level of education may also change. When hired, the candidate’s level of education met the requirements, but subsequently became insufficient.

Note! If the requirements for an employee's qualifications change, the employer will have to make changes to job descriptions and other local acts of the organization. Changes are made either by agreement of the parties in accordance with Art. 72 of the Labor Code of the Russian Federation, or unilaterally established by Art. 74 Labor Code of the Russian Federation.

And in the first case, when it is necessary to establish the level of professionalism and suitability for work, and in the second, when it is necessary to confirm the discrepancy between the level of education and the requirements for qualifications, the employer must conduct certification. And only on the basis of its results can an employee be dismissed as not suitable for the position held.

We carry out certification

Certification can be defined as a procedure carried out to evaluate the work of an employee, determine his business qualities and qualifications in order to establish his suitability for the position held. Other goals of certification are to improve the performance of the organization as a whole, determine production goals and objectives, and identify employee training needs.
Mandatory certification is established by federal laws in relation to certain categories of workers. These include civil and municipal employees, teachers and heads of educational institutions, as well as:
– rescuers (Articles 23, 24 of the Federal Law of August 22, 1995 N 151-FZ “On emergency rescue services and the status of rescuers”). The main provisions for certification of rescuers are approved by Decree of the Government of the Russian Federation of December 22, 2011 N 1091;
– prosecutorial employees who have class ranks or occupy positions for which the assignment of class ranks is provided (clause 2 of Article 41 of the Federal Law of January 17, 1992 N 2202-1 “On the Prosecutor’s Office of the Russian Federation”). The regulation on the procedure for certification of prosecutorial employees of bodies and institutions of the Prosecutor's Office of the Russian Federation was approved by Order of the Prosecutor General's Office of the Russian Federation dated June 20, 2012 N 242;
– aviation personnel (clause 4 of article 8 of the Air Code of the Russian Federation);
– heads of unitary enterprises (clause 2 of article 21 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises”);
– workers of a hazardous production facility (Clause 2, Article 9 of the Federal Law of July 21, 1997 N 116-FZ “On the Industrial Safety of Hazardous Production Facilities”);
– library workers (Article 26 of the Federal Law of December 29, 1994 N 78-FZ “On Librarianship”). The procedure for conducting periodic certification of employees is approved by Order of the Ministry of Culture of the Russian Federation dated June 24, 2016 N 1435;
– persons holding positions related to ensuring the safety of navigation, flights and the movement of ground vehicles (clause 9 of the Decree of the Government of the Russian Federation of August 30, 1993 N 876). Certification of such employees is carried out on the basis of the Regulations on the procedure for certification of persons holding positions of executive managers and specialists of organizations and their divisions transporting passengers and cargo, approved by Order of the Ministry of Transport of the Russian Federation, the Ministry of Labor of the Russian Federation dated March 11, 1994 N 13/11, etc.

For your information. In accordance with Part 2 of Art. 81 of the Labor Code of the Russian Federation and clause 31 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution N 2), certification is carried out in the manner established by labor legislation and other acts containing labor standards rights, local regulations adopted taking into account the opinion of the representative body of workers.

Regardless of whether the certification procedure is defined by regulatory legal acts or not, the organization must have a document regulating it, for example a regulation. There is no regulatory legal act establishing general rules for conducting certification, therefore, when developing regulations in organizations for which this procedure is not established by law, special regulatory legal documents can be used. One of them is Resolution of the State Committee for Science and Technology of the USSR N 470, State Committee for Labor of the USSR N 267 of 10/05/1973 “On approval of the Regulations on the procedure for certification of management, engineering and technical workers and other specialists of enterprises and organizations of industry, construction, agriculture, transport and communications.”
The regulations on the certification procedure should establish:
– categories of workers in respect of whom certification must be carried out and who are not subject to certification;
– timing of certification;
– types of certification (regular, extraordinary);
– powers of the certification commission;
– criteria for evaluating employees;
– procedure for certification;
– results and consequences of certification.
At the same time, some provisions may be established in a separate document, for example, evaluation criteria, the procedure for the work of the certification commission.

Note! The composition of the commission can be permanent or formed before each certification. It is approved by order of the head. Moreover, if the certification is carried out in order to establish the employee’s suitability for the position held when deciding on his dismissal on the basis of clause 3, part 1, art. 81 of the Labor Code of the Russian Federation, a representative of the elected body of the corresponding primary trade union organization must be included in the commission (Article 82 of the Labor Code of the Russian Federation).

The regulations are approved by the head of the organization by issuing an order or affixing the stamp “I approve” signed by the head and the seal of the organization. Employees subject to certification must be familiarized with the provisions upon signature. In addition, the obligation to undergo certification may be specified in employment contracts.

Certification results

The results of the certification are documented in the protocol of the certification commission, on the basis of which the employer makes a final decision on its results. The commission makes a conclusion whether the employee is suitable for the position held or not.

For your information. In the clarifications of the Ministry of Labor on the application of professional standards dated 04/04/2016, it is noted that when applying qualification reference books and professional standards, persons who do not have special training or work experience established in the section “Qualification Requirements”, but have sufficient practical experience and perform efficiently and in the full extent of the official duties assigned to them, on the recommendation of the certification commission, they are appointed to the appropriate positions in the same way as persons with special training and work experience.

That is, if the educational requirements are not established by federal laws and regulations, an employee who does not have the required education, but has sufficient experience and knowledge, may be recognized by the certification commission as appropriate for the position held.
Based on the results of the certification, the employee may also be recommended:
- training;
- transfer to another position.
If the employee is recognized as unsuitable for the position held, the employer may be recommended to dismiss him under clause 3, part 1, art. 81 Labor Code of the Russian Federation.

Limitations during certification

The certification procedures provided for by regulatory legal acts prohibit the certification of certain categories of workers.
For example, according to the Regulations on the procedure for certification of employees holding positions of teaching staff belonging to the teaching staff, approved by Order of the Ministry of Education and Science of the Russian Federation dated March 30, 2015 N 293, the following are not subject to certification:
– employees who have worked in their position for less than two years;
- pregnant women;
– women on maternity leave;
– employees on parental leave until the child reaches the age of three.
Certification of employees on maternity leave and child care is possible no earlier than two years after their return from these leaves. The Labor Code does not establish such restrictions.
According to the said Regulations, the following certification does not include: persons who have worked in their position for less than one year; young specialists during the period of compulsory work as assigned after graduation from educational institutions; pregnant women and women with children under one year of age. In addition, executive employees of enterprises and organizations whose appointment and dismissal are carried out by higher authorities are not subject to certification.
At the same time, the Labor Code contains norms that introduce a ban on dismissal under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation (part 6 of article 81, article 261).

Thus, even if these employees do not pass the certification, they cannot be fired.

Dismissal procedure

So, if, based on the results of certification, an employee is found not to be suitable for the position held, the employer can fire him. This is not an obligation - the employer can offer the employee a transfer to a position that matches his qualifications, or send him for training.
If the employer decides to fire an employee, he must first offer him a transfer to another available job (either a vacant position or a job that meets his qualifications, or a vacant lower position or lower paid job), which the employee can perform taking into account his health condition. All eligible vacancies available to the employer in the area must be offered. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Note! When dismissing an employee under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation, the employer must be ready to provide evidence that the employee refused to be transferred to another job or it was not possible (for example, due to the lack of vacant positions or jobs) to transfer the employee with his consent to another job available to this employer (p 31 Resolution No. 2).

If the employee agrees to be transferred to another position, the employer enters into an agreement with the employee to the employment contract, on the basis of which an order for the transfer is issued, and a corresponding entry is made in the work book.
If the employee does not agree, he is subject to dismissal. Termination is formalized by an order, the basis of which includes the details of the protocol (conclusion) of the certification commission on the employee’s inadequacy for the position held. Based on the order, entries are made in the employee’s work book and personal card.

For your information. When dismissing on this basis, in some cases it is necessary to take into account the opinion of the trade union. This, in particular, applies to workers who are members of a trade union (Part 2 of Article 82 of the Labor Code of the Russian Federation), workers under the age of 18 years (Article 269 of the Labor Code of the Russian Federation), workers participating in a collective labor dispute or strike (Article 415 of the Labor Code of the Russian Federation ), elected to the commissions on labor disputes (Articles 171, 373 of the Labor Code of the Russian Federation), etc.

What do you need to know?

As already noted, dismissal under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation is a rather complicated matter. Employees often appeal this decision and are often reinstated, not always because the employer has not proven that the employee is poorly performing his duties, but because the dismissal procedure or certification procedure was violated.
Thus, upon dismissal, it is important to confirm that the employee, who, based on the results of certification, was found not to be suitable for the position held, was offered a transfer to the available vacant positions. When conducting certification, you should keep in mind that the certification procedure, timing, composition of the commission, documents drawn up, etc. must strictly comply with the established procedure. In addition, the employee must be familiarized with the certification regulations, notified about the certification, he must be present during it and become familiar with its results.

Note. Considering disputes in connection with dismissal under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation, the court evaluates the conclusions of the certification commission about the employee’s business qualities in conjunction with other evidence in the case (clause 31 of Resolution No. 2).

And of course, the judges carefully examine the grounds and conclusions of the commission about the employee’s inadequacy for the position held.
For example, when considering a case on the reinstatement of an employee, the court found that the questions specified in the attestation sheet did not meet the requirements of the employee’s job description, and the protocol did not contain the employee’s answers to the questions of the commission members (Appeal ruling of the Krasnoyarsk Regional Court dated December 24, 2014 in case No. 33 -12241).
In another case, the employer violated the certification procedure, namely, the employee was not familiar with the certification regulations and other documents related to this procedure. The certification commission made an incorrect conclusion about the discrepancy between her level of education and her position. The court found that:
– from the examination sheet with the employee’s answers it is impossible to draw a conclusion about the correctness or incorrectness of her answers;
– from the testimony of a member of the certification commission, it is impossible to draw a conclusion about what the incorrectness or incompleteness of the answers to the questions posed consisted of and to what extent the answers of the certified person objectively indicate the inadequacy of her position.
The commission's conclusion was mainly based on the fact that the disabled worker presented an individual program for her rehabilitation, according to which, due to health reasons, she was unable to perform traveling work and solve complex tasks. However, the court considered that this circumstance should not have influenced the conclusions of the certification commission about the suitability or non-compliance of the employee for the position held, since the state of health may be a circumstance relevant for dismissal under Art. 73 of the Labor Code of the Russian Federation, that is, on a different basis.
As a result, the above circumstances indicated violations of the procedure for employee certification. The court questioned the objectivity of the certification commission’s conclusions and the legality of the employee’s dismissal; it was reinstated (Appeal ruling of the Moscow City Court dated February 24, 2015 in case No. 33-639/15).
In addition, when considering such cases, courts take into account whether all conditions were created for the employee to perform his job duties, whether he received incentives during his working career (and vice versa, whether he was brought to disciplinary liability).
And even if the employee’s insufficient qualifications are established, the employer should check whether he belongs to a preferential category of employees who cannot be dismissed on the specified grounds.

To summarize, we note once again that dismissing an employee based on the results of certification under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation is not at all necessary. And if there is no other way out, then be prepared to justify your decision. Also keep in mind that the main condition for dismissal on this basis is the absence of guilt in the employee’s actions (improper performance of job duties is caused by a lack of necessary knowledge, skills, and qualifications).
If an employee does not perform his duties properly, not because he is not sufficiently qualified, but because of his own fault, then disciplinary measures must be applied to him.

E.V. Davydova
Journal expert
"Human Resources Department
commercial organization"

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