How to prove the inadequacy of an employee for the position. Judicial practice: examples

It often happens that an employee does not correspond to the position he occupies, therefore 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 job, he may be offered another. If the employee does not fit according to any criteria, then the employer can make a decision, which is called dismissal for non-compliance with 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 otherwise the employee will be able to challenge the decision and receive decent compensation for the moral damage caused. This happens very often.

What are the general provisions?

The Labor Code states that the inadequacy of the position is nothing more than a lack of qualifications to perform a certain job. But in fact, a person can be absolutely not guilty of this, for example, he cannot perform work due to his health condition. 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, under this article, the only exception can be those specialists who do not have proper education and the enterprise bears losses because of this. You cannot fire a person who is on vacation or temporarily incapacitated. In all other cases, dismissal due to inconsistency with the position held is real.

Who can be fired for inappropriate 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 illegal, and then the employer will have to pay a round 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 work 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 the article for non-compliance with the position held.

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

What are the grounds for dismissal?

All the grounds according to which you can dismiss a person from their position are divided into several categories:

1. An employee can hold a position, but at the same time be on sick leave for a long time. It is very difficult to fire a worker for this reason, in which case he must have a very long disability, and if his illness is curable, then the employee cannot be fired.
2. The second reason is the low skill level. Here the employer can also face significant problems. The fact is that an employee can submit an application for consideration to the court, because not everyone is satisfied with such a wording as dismissal for inconsistency with the position held. In order for an employee to constantly improve his qualifications, the employer must send him to special courses. If, nevertheless, the employee does not improve his qualifications, then in this case it will be true to carry out certification to test the knowledge and skills of the employee of the organization. Attestation is an examination that is divided into two types: mandatory and optional management. For example, physicians must undergo compulsory certification in a certain period, and if the results are negative, then dismissal is made based on the results of certification. The inconsistency of the position held, as they say, is obvious in this case.

Who shouldn't be fired for being inappropriate for their position?

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

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

Special attention in the law is paid to employees who are minors. Dismissal under the article for inconsistency with the position held in this case should be considered by a special labor authority.

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

So that the dismissal does not entail too big problems for the employer, who decided to take advantage of the long absence of his employee for his health reasons, the manager will need to secure 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. Dismissal of an employee for non-compliance with the position held after certification is also not always a suitable option, the manager must give his subordinate an 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 another position. If the employee does not want to start another job, then the employer can safely decide on dismissal. It is very important to know that the employer will have to protect himself in every sense of the word, therefore the legislation recommends collecting all evidence in writing about the unsuitability of the employee. Dismissal for non-compliance with the position held is a serious decision, therefore, the entire professionalism of an 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 the consideration of 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 and courses. An employee may refuse to sign any documents, but in this case, a special act must be drawn up, where other signatures will be located, indicating that the signature of the dismissed is not due to his refusal.

How certification is carried out

If an employee does not pass certification, as required by law, then dismissal may follow due to inadequacy for the position held. Attestation helps to check the degree of qualification of employees, while there are a certain number of professions where attestation is a prerequisite. It includes several stages:

1. The employees who must pass certification are determined.
2. The members of the certification commission are determined; this should include representatives of trade unions, heads of departments, employees who are preparing to undergo certification.
3. An order for attestation must be created. Everyone who takes part in it should familiarize themselves with the order.
4. 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.
5. During the certification, a special protocol is drawn up, where all members of the commission sum up the results and put their signatures.

If an employee does not appear for certification for an unjustified reason, then he automatically does not pass it, and the manager has every reason to apply dismissal to him under the article for inconsistency with the position.

Keeping records is a very important point, because it is on the basis of it that the manager has the full 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 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 for the position held. Everything will depend on what decision the employer makes. For example, a manager may leave an employee at work, but require him to complete additional courses and recertify. Also, the manager can familiarize the employee with all available vacancies and offer to move to another position, which may be closer to the employee of the organization.

You can also resolve the issue in a more suitable way for both parties. For example, few people will like an entry in a work book about dismissal due to inconsistency with the position held, and the employee may have problems with employment in another organization. Therefore, in most cases, both the manager and the employee make a decision on dismissal by agreement of both parties with the wording "of their own free will."

How is the employee dismissal procedure carried out?

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 necessarily study in detail the Labor Code of the Russian Federation, dismissal for inconsistency with the position held also requires adherence to a special procedure. The boss can offer his subordinate to move to another position, but if the organization does not have such an opportunity, then you will need to take a written application. An important factor is the fact that a decision to terminate an employment contract can be made two months after certification. If the decision to release the employee from work is made, then a dismissal order is issued by the organization. Inadequacy for the position held is indicated as a reason for terminating the contract. The citizen will be obliged to familiarize himself with this order and put his signature, after which he will receive the final payment on the last day of his work. All information that the contract has been terminated and the employee's work activity in this organization is terminated is recorded in the work book, which is handed out to the former employee.

Algorithm of actions in the process of dismissal

Dismissal for non-compliance with the position held is a rather serious procedure. That is why the leader is required to adhere to the following steps:

1. It is imperative to conduct an exam, you can familiarize yourself with all the points of such a test in the Regulation on Attestation.
2. Treat the employee with understanding and offer him other vacancies.
3. All the necessary documents are collected, which are the main reasons for dismissal, an order is still attached to these documents.
4. After the dismissal, a note is made that the employee is dismissed, and the reason for which he is leaving is clearly indicated. It is imperative to indicate that the employee could not cope with his duties and did not pass the certification.
5. Dismissal due to inconsistency with the position held does not provide for any additional payments, the employee can count on his salary and on vacation payments if he did not have time to take it off.
6. 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 fulfilled, all labor agreements between the manager and the employee are terminated.

Cases in judicial practice

Often, a serious conflict arises between the employee and the employer, which is 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 be very careful about the dismissal of his employee. After all, it often costs an employee nothing 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 to document everything, then the court will certainly take this fact into account. In judicial practice, there are situations when the employer insists on the dismissal of the employee and does not allow him to pass certification, in which case the court will certainly be on the employee's side. The court will surely ask the question why the manager believes that the employee is not entitled to occupy this or that 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 authority and his behavior does not correspond to the official relations, then the dismissed citizen can be reinstated in his position, and the manager will still be obliged to pay monetary compensation for moral damage.

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

1. When recruiting an employee, he knew all the job descriptions that he had to fulfill at the proper level, while under them there is the signature of the employee himself.
2. The employee knew that the organization has a mandatory certification, and he was familiarized with the procedure for its implementation, but at the right time he could not prove his qualifications. The certification results must also be signed by the employee.

If all documents were collected for a long time properly, 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 laborious process and requires compliance with all legislative norms. The final decision on the dismissal of an employee can only be made by the head of the organization, therefore, he is fully responsible for such a decision. The incompetence of an employee can lead to a production defect, 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 the two parties. In this case, everyone wins. The employee can easily get a job at another place, and the employer can avoid unnecessary difficulties.

If the employer is going to relieve the employee of his position on his own initiative, for this he needs good reason. Labor legislation does not provide so many opportunities for this: the lack of desire or consent of an employee to leave his job can be leveled only by his state of health or inadequacy for the position held. And even in such situations, the dismissal must comply as much as possible with the procedure regulated by law, otherwise it may be challenged in court.

Justification in the Labor Code of the Russian Federation

The law states that an employee can be dismissed from his position without taking into account his consent or desire, if his qualifications are not suitable for performing the labor functions that this position provides, which must be confirmed by the official certification procedure (clause 3 of article 81 of the Labor Code of the Russian Federation).

In clause 1 of Art. 195 of the Labor Code of the Russian Federation defines the concept of professionalism of workers, provides requirements for assessing its level.

IMPORTANT! Specific parameters of compliance are developed directly by the employer for each position in his staffing table, but they should not conflict with the qualification characteristics given in official documents, in particular, in the tariff and qualification reference book.

What is the difficulty of proving the inappropriateness of the position

For the employer, such dismissal is always a serious test. This is due to several factors.

1. Dismissals initiated by the employer, if they are contested in the courts, always arouse special attention from those considering the case. Inconsistency in the procedure or insufficient proof of the reason for the dismissal can lead to the restoration of the employee and serious material costs for the party who dismissed him.
2. It is not always possible to prove the lack of qualifications simply and unambiguously:
   • hiring an employee already proves that the employer is aware of the level of his training, which he initially arranged;
   • if the initial level of qualifications of the employed employer was recognized as insufficient, the employee could be categorically dismissed during the probationary period, if the test was not appointed, it means that the employer chose to hire an employee without checking his business qualities;
   • an extraordinary certification for an individual employee, in case of doubt about his competence, cannot be assigned: certification should be carried out as planned and for all employees of the corresponding level or this unit.

Procedure for an employer who is not satisfied with the employee's qualifications

In order to implement the step-by-step path of dismissal on such a basis, the employer must carry out preliminary work, that is, the company must develop the appropriate documents and adopt the necessary standards:

• for each position, you need to develop qualification requirements, fixing them in internal documents;
• the company must adopt a regulation on compulsory certification of all employees, which must be carried out at least once every 5 years;
• a special commission is authorized to carry out certification (you can use the services of specialized certification centers).

Algorithm for the employer

1. A publication with an indication of the positions subject to verification and their timing.
2. Written notification of employees who are to undergo an attestation check under their personal visa.
3. Conducting the inspection itself in accordance with the Regulations adopted in the organization.
4. If the conclusion of the attestation commission indicates a failure to pass the check, you need to get a correctly drawn up conclusion about this.

ATTENTION! If the employer does not want to part with such an employee, then instead of dismissal, he has the right to send him to refresher courses, additional training or another form of training. An employee's refusal to undergo such training will become a legitimate basis for further action on dismissal.

5. The employee must necessarily receive an offer to take another position for which his qualifications will be sufficient. The list of vacancies must be complete, including all suitable positions, including significantly lower paid ones. The proposal must be in writing, it must be drawn up in 2 copies (the employee must make a note on the receipt of the proposal on the copy that remains with the employer).
6. If there are no suitable vacancies in the staffing table. To confirm this fact, the employer needs an act on the absence of the relevant positions.
7. The employee's refusal to take up any of the offered vacancies must also be made in writing. In the received list of proposals, opposite each proposed vacancy, there must be a resolution of the employee "disagree", certified by his personal signature.
8. After that, you can draw up according to clause 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation "Inconsistency with the position held, confirmed by the results of certification."
9. The employee must be informed in writing about the upcoming dismissal of the employee, indicating in the document the date of the future termination of the contract and the reasons that caused it. The employee must sign the receipt.
10. On the day of dismissal, the employee is issued a work book and a copy of the dismissal order, and is also paid:
    • all the salary due to him;
    • if all the days of the prescribed vacation have not been used;
    • severance pay in the average monthly amount.

IMPORTANT INFORMATION! Any documentation related to the appointment and passage of certification must be signed by the employee himself. If he refuses to leave his signature, the employer in each individual case must confirm such a refusal by drawing up an act with two witness signatures.

Additional "safety net" for the employer

If the lack of qualifications for which it is planned is obvious, it manifests itself not only during certification. For additional confirmation of the insufficient level of the employee, you can stock up on the following documents:

• (notes) of the immediate supervisor, testifying to the poor performance of their duties;
• acts that a defect was detected in the employee's work;
• written customer complaints;
• other documentary evidence, for example, for a driver it may be a deprivation of rights;
• if the organization has a trade union, it is worth securing its consent to dismiss the negligent worker.

The subtleties of dismissal due to the discrepancy between certain categories of workers

1. If, on this basis, the employer is going to dismiss a minor employee, in addition to all the steps listed, permission from state bodies will also be required: the commission for minors and the labor inspection.
2. If the dismissed employee is liable for military service, then the employer must inform the military commissariat where the employee is registered about his dismissal. This can be done using a certified letter.
3. If an employee who is subject to a material penalty (for example, the payment of alimony) is dismissed from office, then the bailiff must find out about the dismissal in a timely manner (within three days). You can send a certified letter or a notification by courier, keeping a copy with the mark of the executive body (or a certificate of delivery of a certified letter).

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

Expanding terms

Before talking about the criteria that determine the inconsistency of an employee with a position or work performed, it is necessary to disclose the term "employee qualifications", especially since it is not clearly defined in the legislative acts of the Russian Federation. The concept under consideration 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, the specific type of work entrusted to the employee. Article 132 establishes the dependence of the employee's salary on a number of factors, including on his qualifications. The value that reflects the level of professional training of an employee is called a 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, which is necessary to fulfill the duties assigned to him (appropriate education), as well as the length of service required for this position are called qualification requirements. They are indicated for each of the positions. Requirements for qualifications, together with the main responsibilities and the knowledge necessary for taking a position, are called qualifications.

Article 21 of the Labor Code of the Russian Federation establishes the right of an employee to receive wages in accordance with his qualifications, labor complexity, quantity and quality of work performed. In this regard, the qualification characteristics established for employees holding the same positions must be the same. Sources for determining qualification characteristics can be tariff and qualification reference books, which include a list of positions, specialties and professions with an indication of the employee's main responsibilities, the content of 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 seniority and work experience in the relevant positions. Uniformity and clarity in specifying the requirements for the position (profession), as well as the duties of the employee will allow the certification commission to objectively assess the employee's compliance with the position or work performed and make an informed decision.

So, in labor legislation, qualification is understood as the level of preparedness, skill, fitness 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 to be hired are established according to educational documents, as well as documents confirming the employee's experience in the position (profession) for which he is accepted.

Sometimes the inconsistency of the employee with the position held is revealed during his work activity. The reasons may be changes in the technological process, improvement and complication of equipment, the introduction of new technology, computerization of production activities. But you shouldn't immediately talk about the lack of qualifications of the employee. 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 those cases when 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, it is possible to raise the question of the inadequacy of his position or work performed.

If the issue of the inconsistency of some employees with the position (work) 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, when it comes to a teacher), etc.

When labor standards can be quantified, it's simple. And if we are talking about the inadequacy of an employee with a position that requires intellectual work, it is difficult to talk about defective products, violations of norms, etc. Then you need to analyze:

The quality of execution of specific orders of the head;

Cases of violation of the deadlines for completing tasks;

Is the employee successfully coping with the total volume of work;

Does the level of his qualification correspond to the professional qualification requirements.

If there are no complaints, let alone disciplinary sanctions, it will be almost impossible to establish and substantiate the incompetence of an employee. Again, you need to look at how competently and clearly the tasks are set by the management, whether the amount of work is evenly distributed among the employees of one structural unit. Is it real 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 Reference Book for the Positions of Managers, Specialists and Other Employees, approved by the Resolution of the Ministry of Labor of Russia dated 21.08.1998 N 37 (hereinafter - EKSD). Decree of the Ministry of Labor of Russia dated 09.02.2004 N 9 approved the Procedure for the application of the EKSD, clause 1 of which directly indicates that this Guide is intended to address issues related to the regulation of labor relations, ensuring an effective personnel management system of organizations, regardless of ownership and organizational and legal forms activities. If the position in the organization is called somehow differently, then when considering the issue it is necessary to "tie" it to similar positions established in the EKSD.

Secondly, you need to know how the inconsistency with work due to insufficient qualifications is expressed - in systematic marriage or non-fulfillment of labor standards. Consequently, at the enterprise, the issues of rationing should be clearly regulated and not contradict the relevant norms established by the current by-laws, GOSTs, etc.

During work, a specific employee of the organization is checked for professionalism and suitability for work in modern conditions is carried out in the course of certification.

In theory, attestation of personnel 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 retains the position of the certified employee.

Experts consider the three most important goals for assessing the performance of personnel:

1. Improvement of current work.

2. Determination of production goals and objectives.

3. Determining the need for training.

The main tasks of certification are as follows:

An objective assessment of the activities of employees and the establishment of their suitability for the position;

Assistance in improving the efficiency of the organization;

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

Formation of highly qualified personnel of the organization;

Providing the possibility of movement of personnel;

Stimulating the professional growth of employees.

The compulsory certification is established by special federal laws in relation to an insignificant number of certain categories of employees in certain branches of economic activity. These include workers:

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

The activities of which are related to the movement of trains and shunting work on public railways;

Responsible for ensuring the safety of navigation;

Employed at hazardous production facilities;

Employed in chemical weapons storage facilities and chemical weapons destruction facilities;

Aviation personnel;

Carrying out work with sources of ionized radiation;

Library staff;

Employed in space infrastructure facilities;

Educators and leaders in educational institutions;

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

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

Attitude to work;

Teamwork;

Ability to solve problems;

Communication skills;

Skill level.

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

A responsibility;

Initiative;

Leadership;

Personnel Management;

Planning and organization skills.

Based on the results of certification, the management determines whether a person has the competence necessary for a given workplace. If there is one, the employee receives an appropriate salary. Employees whose competence is much higher than necessary in their place, 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, having carried out the certification, the employer secures the right to dismiss unwanted employees. Certification is a strictly formalized procedure, and the slightest deviation from the prescribed order can nullify all its results. Here's what you need to consider so that later the court does not have doubts about the legality and validity of the certification:

1. The procedure and conditions for attestation 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, the 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 the Decree of the Government of the Russian Federation of 03.16.2000 N 234; federal civil servants - in accordance with the procedure established by the Regulations on the certification of civil servants, approved by the Decree of the President of the Russian Federation of 01.02.2005 N 110, etc.

The Regulations must be familiarized with signature of all employees subject to certification. In order to avoid possible misunderstandings in the employment contract with the employee, it is recommended to include a clause on the obligation to undergo certification.

2. The Regulations should cover all issues of organization and conduct of certification. It is mandatory to include items about which employees must undergo certification, how often it is carried out, what criteria will be used to evaluate the attested, who is included in the attestation commission, what documents are drawn up before, during and after attestation, to what results it can lead. It is necessary to describe in detail the entire certification procedure.

The following sections can be included in the Statement of Attestation:

General provisions;

Preparation for certification;

Conducting certification;

Assessment of the certified employee;

Legal consequences of certification;

The procedure for considering labor disputes.

Auxiliary acts that ensure the organization and conduct of certification - the rules of the internal labor regulations of the organization, the Regulations on the structural divisions of the organization, job descriptions of employees.

To implement the stages and procedures of certification, orders of the head of the organization about its conduct, reviews of certified employees, certification sheets, certification schedules for categories of employees and structural divisions, samples of minutes of meetings of the certification commission and other documents are required.

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

For certification it is necessary:

Form an attestation commission;

Draw up lists of those to be attested and a schedule of their attestation;

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

Approve the prepared list of questions for proficiency tests.

What a commission ...

An important role is played by the question: how and with whose participation the certification commission should be created? Firstly, in many non-governmental organizations the provision on the certification commission is simply absent "as unnecessary", and without it a commission in a private company in most cases cannot be created. Second, it matters how skilled workers are included in the commission, especially in a small firm. Thirdly, what profession and specialty will the members of this commission have? So it is quite possible to challenge the decision of the attestation 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. It is necessary to take into account such nuances when forming the certification commission. If the results of certification can 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 attestation commission consists of the 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 certified person no later than a month before this event. The schedule indicates the date and time of the certification, as well as the date of submission to the certification commission of the necessary documents for each certified person.

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

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.

Feedback is the main document characterizing the level of theoretical and practical skills of the employee, his personal and moral qualities, as well as the compliance of this level with the position. The response should reflect not only indicators common to all categories of personnel, for example, the level of education, work experience in this position, etc., but also the individual traits 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 business, the ability to adapt to a new situation and apply new approaches in solving problems that have arisen, the ability to organize the work of subordinates, etc.

The provisions on the certification of different organizations contain the following list of indicators for assessing the qualifications of employees:

Education;

Work experience in the specialty;

Professional competence;

Industrial ethics, handling style;

Ability to be creative, entrepreneurial spirit;

Ability to carry out commercial activities;

The ability to self-esteem.

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, determination of 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 recorded in the certification sheet.

An individual interview is carried out in the presence of the attested person and his immediate supervisor.

In order to avoid disputes, when developing a regulation on personnel certification, you can take the norms of the Resolution of the USSR State Committee for Science and Technology and the USSR Goskomtrud dated 05.10.1973 N 470/267 "Regulations on the procedure for certification of managers, engineering and technical workers and other specialists of enterprises and organizations of industry, construction, agriculture, transport and communications "(hereinafter - Resolution N 470/267). The said decree is still a universal valid normative act, since applies to all sectors of the national economy. According to clause 12, the attested must be present at the meeting of the commission. In case of failure to appear, the certification can be postponed, but not more than two weeks. In case of repeated failure to appear without good reason, the employee is recognized as not certified.

From the Regulations on the attestation of state civil servants of the Russian Federation of 01.02.2005 N 110 (as amended by the Decree of the President of the Russian Federation of 19.03.2013 N 208) it follows that attestation is carried out with the invitation of the attested to a meeting of the attestation commission. If the person being certified does not appear at the meeting of the said commission without a valid reason or if he refuses to attest, the employee is brought to disciplinary responsibility in accordance with the legislation of the Russian Federation, and the attestation is 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 the failure to appear. However, if the case goes to court, in order to win it, the organization will have to submit:

The current regulation on attestation, adopted in accordance with all the rules;

A document confirming the fact of familiarization of the employee against signature with both the local act and with the notification (or schedule) of the certification.

The regulation on certification of a specific organization may indicate: "If it is impossible for individual members of the Commission or a certified employee or invited persons to be present at a meeting of the Commission, the presence of which is necessary, these persons must notify the Secretary of the Commission no later than one day before the meeting of the Commission.

Good reasons for the absence of an employee:

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

Business trip of the certified employee;

Annual paid leave of the certified employee;

Other cases of failure to appear, which the Commission may consider as valid. "If the employee refused to receive a notification about the 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 the established practice in relation to the personnel of organizations in different sectors of the economy and management, the certification commission gives one of the following assessments of the activity 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 in a year;

Does not correspond to the position held.

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

Can an employee be included in the personnel reserve;

The need for training and advanced training;

Personnel movements;

Change in wages.

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

Important. The conclusions of the attestation commission on the employee's business qualities are subject to assessment 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 labor function, taking into account his professional and qualification qualities (the presence of a certain profession, specialty, qualification) and personal qualities, for example, the state of health (which can affect the quality of work ), a certain level of education, work experience in this specialty, in this industry (see clause 10. Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2: with the business qualities of this employee, such a refusal is justified ").

3. To preserve the terms of the employment contract with the imposition of an additional obligation on the employee - to eliminate the deficiencies noted by the attestation commission, and to undergo re-attestation within a year from the date of the decision.

4. Change the content of the employment contract in terms of 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 who have sufficient practical experience and who perform the job duties assigned to them with high quality and in full, on the recommendation of the certification commission, as an exception, may be appointed to relevant positions as well as persons with special training and work experience.

Thus, the attestation commission, when making a decision, 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 entrusted to him.

Therefore, the attestation commission, having identified the employee's lack of certain knowledge, skills and abilities, should indicate this to him and, taking into account the nature and volume of shortcomings in the employee's training, determine the time frame for their elimination. The question of dismissal can be raised only if, after the expiration of this period, the employee still performs the assigned work poorly. The issue is resolved by a simple majority of votes of the members of the commission in an open vote, in case of equality of votes, the employee is recognized as corresponding to the position.

There is a result. What's next?

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

The decision of the certification commission is drawn up in a protocol, which is signed by the members of the certification commission present at the meeting. The notification of the certification results must be issued 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 minutes of the attestation commission is attached to the personal file.

The head of the department in which the certified employee works is obliged to report the results to the general director within a week after certification. The submission must contain recommendations on the continuation (termination) of labor relations, transfer, change (preservation) of the volume of work performed, the amount of wages, the need to improve the employee's qualifications.

Based on the decision prepared by the certification commission, information on the results of the certification carried out 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 certification are analyzed, measures are approved to improve work with personnel, to implement the recommendations of the certification commission, as well as to conduct the next certification of employees. It should not be in one order to approve the results of certification and resolve personnel issues, since the latter refers to the order on personnel.

According to the order on the activities following the certification, it is necessary to prepare orders for each item: on transfers, incentives and other appointments.

The terms during which, based on the results of certification, the employer has the right to make a decision on the continuation, change or termination of labor relations with employees are not established by the Labor Code. 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 recognized as inappropriate for his position, the head of the company can fire him on the basis of paragraphs. 3 h. 1 tbsp. 81 of the Labor Code of the Russian Federation. Dismissal on this basis is a rather complicated and "slippery" procedure in legal terms. There are too many conditions stipulated by law that must be met in order for the dismissal to be legal.

The first significant point, if, nevertheless, an insufficient qualification of an employee is established, it should be considered that he belongs to one or another privileged category of personnel. There are several categories of workers who cannot be dismissed on this basis in any way:

Pregnant women, unless the organization is liquidated. Consequently, no matter how low qualifications a pregnant woman may have, she cannot be fired (part 1 of article 261 of the Labor Code of the Russian Federation);

Employees 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 the certification of civil servants of 01.02.2005 N 110 (as amended by the Decree of the President of the Russian Federation of 19.03.2013 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 during the period of being on vacation, with the exception of the case of liquidation of the organization or the termination of activities by the employer - an individual (part 6 of article 81 of the Labor Code of the Russian Federation).

The next very basic condition is the presence or absence in the organization of another job suitable for this employee, as well as whether such a job was offered to him. Dismissal in connection with the revealed inconsistency of the 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 observing this condition, the dismissal cannot be recognized as legal - the employee must be offered another job or position (including a lower-paid job or a lower position), which he can perform for health reasons and qualifications. Therefore, the employee must provide a list of all available vacancies.

Consequently, the order should contain an order for 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), a transfer order is issued in accordance with Art. 72.1 of the Labor Code of the Russian Federation. If he refuses to transfer, or the organization does not have suitable vacancies, he can write on the proposal itself "I refuse the offered job" 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 according to the unified form N T-8 (N T-8a).

Taking into account the above, the order is made an entry: "Dismissed due to inconsistency in the position held due to insufficient qualifications, confirmed by the results of certification, and refusal to transfer to another position, clause 3 of Art. 81 of the Labor Code of the Russian Federation." The basis for issuing an order may be, for example: an order to carry out activities 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.

On the basis of the order, a corresponding entry is made in the employee's work book. If an employee is dismissed, the order and work record indicate - "in connection with the inconsistency of the position held"; if a worker, then - "in connection with the inadequacy of the work performed."

The order should be drawn up in one copy. After the document is signed by the head, 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, an inconsistency with the position (work performed) of an employee who is a member of the trade union is revealed, then his dismissal is made taking into account the motivated opinion of the elected trade union body (part 2 of article 82 of the Labor Code of the Russian Federation). It should be noted that the employer has the right to terminate the employment contract no later than one month from the date of receipt of a reasoned opinion of the trade union body.

Summing up, we can say that the termination of the employment contract with the employee in accordance with paragraph 3 of Part 1 of Art. 81 of the Labor Code of the Russian Federation on the basis of certification is not necessary. The inadequacy of the employee for the position held is determined by objective data, and not by the subjective attitude of the employee to his work duties. The main condition for dismissal under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation - the absence of guilt in his actions, i.e. when non-fulfillment or improper fulfillment of obligations under an employment contract is due to a 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 basis for dismissal is 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 the time sheet. Then the appearance at the workplace of this employee in a state of alcoholic intoxication was recorded. At the same time, he fulfilled his official duties in full. As a result of the planned attestation, the employee was dismissed, however, no evidence of non-performance of the labor function due to his insufficient qualifications was presented. In the event of a legal dispute, the termination of the employment contract by the court will be declared illegal.

Conclusions:

1. Inconsistency with the position held or the work performed due to insufficient qualifications can be defined as an objective inability of the employee to perform properly assigned work. The inability to perform well the work stipulated by the employment contract is manifested in its unsatisfactory results, systematic marriage, non-fulfillment of labor standards, etc.

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

3. For the dismissal of an employee due to inconsistency with the position held or work performed, it is necessary to systematically in the improper performance of his job duties.

4. Dismissal of an employee in the event of his inconsistency with the position held or the work performed (especially from a private organization) in compliance with all legal norms established by law is a complex, time-consuming and partly risky business, 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 time and effort, to do a tremendous and, one might say, fine work to create such a certification system that will exclude any possibility of reinstatement of a dismissed person at work with all the ensuing consequences. Or it’s just not worth trying ...

In the process of implementing an employment relationship, it may sometimes turn out that an employee does not correspond to the position he occupies due to the lack of initiative, personal or professional skills and abilities, qualifications or education. In this case, the legislation allows the employer to terminate the employment relationship with him. However, the procedure for dismissal for non-compliance with the position held is rather complicated and requires strict adherence to procedural standards and applicable laws.

Dismissal for inconsistency with the position held - legal justification

Legal regulation of the application of various dismissal mechanisms in the Russian Federation is provided primarily by the standards disclosed in the provisions of the Labor Code. In particular, dismissal as a whole is considered in Chapter 13 of the Labor Code of the Russian Federation. Article 77 of the Labor Code of the Russian Federation presupposes a listing of the main reasons for the termination of an employment contract concluded between the worker and the employer. At the same time, dismissal due to inconsistency with the position held refers from this point of view to the termination of labor relations at the initiative of the employer.

The procedure for such dismissal is considered in more detail in the provisions of Article 81 of the Labor Code of the Russian Federation, along with other options for terminating labor relations, which can be initiated by the employer. The provisions of this article expressly provide for the right of the employer to terminate cooperation with the employee if his qualifications do not correspond to the position held and official duties. However, they also establish one significant condition for such dismissal - non-compliance must be confirmed by the results of employee certification.

Accordingly, the employer does not have the right to fire employees on this basis without a specialized certification of their skills. In the event that such certification was not carried out, or was carried out in violation of the current legislation, or contained any signs of discrimination, it may be recognized as illegal. In addition, such a dismissal has many other restrictions that both employees and employers should be aware of.

In what cases is it allowed and how is dismissal for inadequacy of the position legalized?

Dismissal for inconsistency with the position held is formalized at the initiative of the employer if he wants to dismiss an employee who does not have the necessary qualifications or the necessary skills to perform his duties. As mentioned above, such a dismissal can only be carried out based on the results of the attestation, however, the legal regulation of this issue until recently was rather weak, which led to certain legal conflicts.

At the moment, first of all, the regulation of certification and qualification testing of employees is ensured by the provisions of Federal Law No. 238 dated 03.07.2016, which regulates the procedure for passing qualifications assessment by employees and secures them the right to the independence of such an assessment.

In general, for an employer, the procedure for dismissing an employee is as follows:

1. The employer sends the employee for a qualification assessment to a duly accredited qualification assessment center. In this case, the direction of the employee for assessment can be both in the form of a traditional examination, and in the format of electronic communication and workflow, including through the use of the Internet.
2. The employee receives an assessment of his qualifications, either confirming his suitability for the position held, or indicating that he does not have the necessary qualifications to meet the professional standards established at the federal level.
3. The customer of the independent assessment, which can be both the employer and the employee, depending on the situation, receives information with the results of the assessment. In addition, the results of the assessment are entered into a special register of qualification assessment.
4. If the assessment confirms the lack of qualifications of the employee, the employer can proceed to documenting the dismissal under the article for inconsistency in the position held, in accordance with the provisions of the current legislation and indicating the reason set out in paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Earlier, before January 1, 2017, certification was mainly regulated by the internal regulations of the enterprise, with the exception of cases when specialized methods for assessing skills and the obligation to pass such assessments were provided for by the provisions of the current legislation. At the moment, due to the ambiguity of the wording of the provisions of Art. 81 of the Labor Code of the Russian Federation, it is also allowed to carry out a dismissal based on the results of an internal certification carried out at the enterprise, taking into account a number of certain nuances.

The employee can challenge the qualification assessment received by him, which is also provided for by the current legislation. In addition, if an employee passed certification at the enterprise, he always has the right to demand an independent assessment of his qualifications through a certified assessment center and the employer will be obliged to accept the result of this particular test.

Payment for the services of qualification assessment centers in the event of initiation of an employee test is paid at the expense of the employer. In a different situation, for example, if an employee wants to challenge the results of internal certification at the enterprise, the need to pay for the services of an independent assessment center is assigned to him.

Who can not be fired for inappropriateness of the position

The legal norms of labor legislation provide for a number of restrictions concerning, first of all, certain categories of employees subject to additional social protection. In relation to some of these categories, dismissal is prohibited due to inconsistency with the position held or other reasons that occur in Article 81 of the Labor Code of the Russian Federation. At the same time, in order to avoid negative consequences, each employer or personnel specialist should know who cannot be fired for non-compliance with the position held. These special categories and cases in which dismissal under Article 81 of the Labor Code of the Russian Federation will be unacceptable include the following situations:

• Finding an employee on vacation. Before terminating the employment relationship with the employee, the employer must wait for the employee to return from vacation. A notice of dismissal cannot be sent to an employee who is on vacation; accordingly, the date of dismissal must also correspond to the elapsed time since the employee returns from vacation.
• Finding an employee on sick leave due to temporary disability, including caring for a sick child. The employer does not have the right to fire employees who are on sick leave for any reason.
• Pregnancy of a worker. The provisions of the current legislation expressly prohibit the dismissal of pregnant employees at the initiative of the employer, regardless of the circumstances and reasons for such, with the exception of situations of liquidation of the enterprise.
• The care of a single mother for a child under 14 years old or the employee is on parental leave for a child up to 3 years old, or simply providing such care without receiving leave. In these situations, the employer also does not have the right to fire workers due to the inadequacy of their qualifications for their positions.

With regard to minor citizens, dismissal for non-compliance is allowed, however, each such case should be considered with the participation of the commission on juvenile affairs from the guardianship and guardianship authority in order to protect the possible rights of a minor employee.

Separate features of dismissal for inconsistency with the position held

As mentioned above, if the dismissal was carried out without observing the procedure established by law, it can be challenged in court. It should be noted that an employee, by a court decision, can receive the following preferences:

• Receive compensation for moral damage caused by illegal dismissal.
• To demand from the employer payments for the entire period of forced absenteeism from the moment of illegal dismissal and up to the final decision by the court and the entry into force thereof.
• Request reinstatement at work or change the wording of dismissal.

Most often, employees go to court to protect their rights precisely with the aim of making changes and replacing the entry in the work book with a more "convenient" reason for dismissal. Therefore, in most situations, both personnel specialists and employers and employees strive to reach a mutually beneficial agreement and the wording upon dismissal is most often fixed somehow at the initiative of the employee, or by agreement of the parties.

Attention should also be paid to the fact that judicial practice demonstrates a comprehensive consideration of the issues of dismissal for the above reason of employees. In particular, the court analyzes the internal regulations and job descriptions of employees, the norms of professional standards established for the positions in question and the current legislation, if it regulates the work of certain specialists in a special manner. In addition, the mechanism for applying this dismissal by the employer is also taken into account. For example, if only one employee underwent certification, the courts often decide in his favor, since such actions clearly indicate the employer's intention to terminate the employment relationship with a particular employee and may contain signs of discrimination.

Today we will talk about such a method of dismissing an employee as the inadequacy of his qualifications. Often employers assume that this method is universal and convenient for dismissing employees. But when employers make a lot of mistakes.

One of the first mistakes is that the employer does not have special Local Regulations (hereinafter LNA), which should regulate the procedure for creating a qualification commission, the procedure for attestation and the procedure for calculating the results of such qualifications. The presence of such LNA is not important in itself, but only if there is written evidence that workers are familiar with such LNA. Accordingly, in order for there to be no grounds for pairing the results of the qualification carried out, the employer must confirm the presence of the signature of this or that employee in such LNA.

The second mistake that employers often make is that LNA companies are personalized, that is, they are written for a specific employee, and not for the dismissal of all employees on such a basis. Normal documents should provide not specific, but general grounds for determining the level of qualifications of certain employees, and not specific or separately taken. The presence of personalized LNA can become the basis for challenging them, and, as a result, challenging the results of the attestation carried out.

The third mistake that employers make is that LNAs do not contain a reasonable level of requirements for workers. The fact is that the qualification requirements should be applicable to a standard employee, and not to an employee who has advanced qualifications or academic qualifications. Accordingly, if the LNA demands from the employee knowledge that does not correspond to his qualifications, or which are overestimated, then such requirements can be quite successfully challenged by the employee in court.

Separately, it should be noted that employers quite often forget about the presence of trade unions in the organization. If the enterprise has a trade union, then its representatives must be included in the certification commission. At the same time, employers often mistakenly assume that the creation of trade unions is some kind of complex process. In fact, this is not the case; only three people are enough to create a trade union.

A trade union can be created within one day and does not require certain registrations, so workers who can potentially be fired for lack of qualifications can use this method of protection quite effectively by creating a union and requiring the employer to include union representatives in the certification commission.

If, based on the results of certification, the organization dismisses a member of the trade union, then the termination of the employment contract must be additionally coordinated with the trade union (part 2 of article 82 of the Labor Code of the Russian Federation).

Thus, employees can effectively protect their interests.

Inconsistency with the position held, as provided for in article 81 of the Persians, paragraph 3 of the Labor Code of the Russian Federation, where the reason for dismissal is the lack of qualifications of the employee.

This basis for dismissal refers to dismissal initiated by the employer, which means that the employer must comply with the established prohibitions on dismissal of certain categories of employees (Article 81 of the Labor Code of the Russian Federation).

In the absence of a direct prohibition, dismissing an employee due to insufficient qualifications is possible only after certification. Termination of an employment contract must be confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code of the Russian Federation).

The employer also does not have the right to fire an employee due to inconsistency with the position held during his illness or vacation (part 6 of article 81 of the Labor Code of the Russian Federation). In this case, you need to wait until the end of the vacation or illness and formalize the dismissal of the employee on the first day of going to work. If the employer violates this procedure, the employee has the right to go to court and will be as unlawfully dismissed (Article 394 of the Labor Code of the Russian Federation).

Before dismissing an employee due to insufficient qualifications, he must be offered any other job in the same organization (including for a lower position and lower-paid work) (part 3 of article 81 of the Labor Code of the Russian Federation). An employee can propose vacant positions that are in the organization in writing.

The employee must give his consent in writing, or refuse the proposed vacancies. If the employee verbally refuses to sign the offer, the employer must draw up an act of refusal to sign in two copies.

Record about dismissal due to inadequacy of the position held in the employee's work book it will sound like this: "Fired due to insufficient qualifications, confirmed by the results of certification, paragraph 3 of part 1 of article 81 of the Labor Code of the Russian Federation."

Since the dismissal of an employee due to insufficient qualifications must be confirmed by the results of certification, then in the order for dismissal in the T-8 form, it is necessary to indicate attestation documents (clause 3 of part 1 of article 81 of the Labor Code of the Russian Federation). These are: the minutes of the meeting of the attestation commission, an order on measures following the results of attestation, as well as an offer of another job (position or specialty) with a written refusal of the employee.