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How to determine the inadequacy of the position held.

It happens that employees do not meet the employer’s expectations and fail to fulfill their job responsibilities. How to correctly raise the issue of inadequacy for the position held; does the employer have the right to fire an employee for this reason?

Yes, the employer has the legal right to fire on the grounds of “inadequacy for the position held,” but it must be done correctly.

Information that an employee can be dismissed due to inadequacy for the position held is contained in Article 81 of the Labor Code of the Russian Federation. The most important thing that an employer must remember is that dismissal for inadequacy for the position held will be legal only after certification (testing of knowledge) of the employee, that is, the employee’s lack of necessary skills must be proven.

The procedure for dismissal for non-compliance with the position held

An employee’s inadequacy for the position held can only be determined after certification by the employer. The procedure for how certification or knowledge testing should be carried out must be approved by the local regulatory act of the employer, in which it is advisable to indicate the conditions under which this procedure is carried out, the criteria by which the tested employee will be assessed, and according to which compliance or non-compliance can be objectively determined position held.

If, based on the results of the tests, it turns out that an employee who does not have the necessary skills and occupies a “not his” position is a member of a trade union, then the employer is obliged to contact the elected body of employees, ask for their opinion on the dismissal and wait to receive it.

Then, the employer, in order to resolve the issue of inadequacy for the position held, must offer the employee to fill other vacancies; this must be done not verbally, when talking with the employee, but in writing. The vacancy may be less paid than previously occupied, or lower-ranking. If an employee refuses to consider a transfer offer, a document must be drawn up that confirms the employee’s refusal.

Having gone through all the procedures and having received the employee’s refusal of the offered vacancies, the employer has the right to fire him for inadequacy for the position held. To do this, it is necessary to issue an order that the employment contract will be terminated. The employee must read the published document and confirm reading with a signature.

To reflect that this is dismissal under the article for non-compliance with the position held, the order must indicate as a reason for dismissal: “Inconsistency of the employee with the position held due to insufficient qualifications, confirmed by the results of certification, paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.”

A note about dismissal must be made in the employee’s work book. The article for non-compliance with the position held is the one given above - paragraph 3 of part one of Article 81 of the Labor Code.

Dismissal due to inadequacy of the position held. Arbitrage practice

The employer must remember: when dismissing an employee, it is necessary to strictly comply with all legal requirements. As judicial practice shows, in case of procedural violations, the court often sides with the employee.

For example, in the cassation ruling of the St. Petersburg City Court dated February 1, 2011 No. 33-424/2011, the court took the side of the dismissed employee due to the fact that the employee certification procedure was not followed upon dismissal for the employee’s inadequacy for the position held. From the court decision it follows that the citizen went to court in connection with illegal dismissal. At first she was asked to resign of her own free will, and after refusing to write a statement, she was not allowed to work without explanation. Later it turned out that from the moment she was not allowed to work, she was fired for inadequacy for her position.

The employer referred to the fact that the employee did not need certification for dismissal under Article 81 of the Labor Code of the Russian Federation, since the lack of necessary qualifications to perform the duties of a nurse was confirmed by the former employee’s lack of a “Nursing in Dentistry” certificate and he had no choice but to dismiss the employee for inadequacy for the position held.

However, the court did not agree with the employer’s argument, since on the grounds specified in paragraph 3 of Art. 81 of the Labor Code, it is clearly stated that it is possible to dismiss an employee for non-compliance with the position held only based on the results of certification. As a result, the employer had to pay for the time of forced absence, change the wording of the dismissal and the date of dismissal.

In another labor dispute, the employee went to court with a demand to declare his dismissal illegal, indicating that he was protesting against the results of the certification carried out by the enterprise, since the order based on its results was not agreed with the opinion of the trade union.

According to the employer, the procedure for dismissal for inadequacy of the position held was fully complied with: the employee was dismissed in accordance with current legislation, based on the results of certification it was recognized that his qualifications did not correspond to the place of work (chief accountant).

According to the employer, an appeal to dismiss this employee was sent to the trade union body, along with copies of the draft orders, but no response was received from the trade union. The employee was offered several vacant positions, but the employee refused them.

However, after analyzing the documents submitted by the employer, the court again sided with the employee. According to the court, the employer did not send information regarding the dismissal of this employee to the trade union body, that is, he violated Art. 82 and 373 of the Labor Code of the Russian Federation, thereby depriving the elected body of employees of expressing their opinion (agreement or disagreement) on the dismissal of an employee.

In case of such violations, dismissal on the basis of clause 3, part 1, art. 81 of the Labor Code for non-compliance with the position held is unlawful, therefore the employee must be reinstated in the workplace. The employer had to pay all legal costs, reinstate the employee at work and pay the average salary for the period of forced absence (decision dated October 27, 2016 in case No. 2-314/2016 of the Suntarsky District Court of the Republic of Sakha (Yakutia).

In another case, now in the capital, the court again sided with the employee and canceled the wording “dismissal for inadequacy of the position held,” and again, due to the fact that the employee was not certified before the dismissal (decision of the Moscow City Court dated November 26, 2010 in case No. 33-35184).

Inconsistency with the position held is one of the reasons for the dismissal or removal of employees from work. During a crisis, many employers are thinking about how to get rid of an employee who is unsuitable or who cannot cope with their job responsibilities. In some cases, you may think about transferring a citizen to another position. Especially if we are talking about a responsible employee. If the personnel really does not fit all the parameters, for the benefit of the entire corporation, the negligent subordinate should be fired. You just need to do it correctly. Otherwise, a citizen can easily recover, and even receive compensation for moral damage from the employer. Therefore, it is worth finding out how, according to the law, dismissal for non-compliance with the position held occurs. What is this anyway? What rules should an employer follow to protect itself from future problems.

The legislative framework

The first step is to find out if there are any laws that allow you to get rid of an employee who does not meet the requirements of the position. This paragraph can only be the basis for issuing a reprimand or improving the qualifications of personnel. Then the dismissal will be considered illegal. For an employer, such a phenomenon will bring a lot of problems.

Fortunately, dismissal for non-compliance with the position can be carried out according to the law. This is indicated by paragraph 3. Suspension from work in this case, as you might guess, will occur at the initiative of the employer. But you will have to follow certain dismissal rules. Which ones exactly? What should a boss do if he decides to get rid of someone who can’t cope with his duties?

Offer another position

The answer to this question is not so easy to give. After all, each company has its own rules in this regard. The question of inadequacy for the position held does not always end in dismissal. If the personnel is responsible in itself, but it does not suit the employer according to some parameters, you can offer him another way out.

For example, transfer to another vacancy. This is not a dismissal, so it is unlikely that an employee who knew that he was facing “retirement” will complain to the employer. If the employment contract stipulates the possibility of transferring a citizen to another position, you can bring the idea to life. Only such situations occur extremely rarely. Often, employers think about firing a negligent employee.

Definition of nonconformity

What does "inadequacy for the position" mean? Understanding this expression is the first step towards making dismissal a reality. It is always important to know what characterizes a particular reason for removal from work.

Inadequacy of the position held is the lack of the necessary skills and abilities in an employee in order to efficiently perform the work assigned to him. It is important that this phenomenon occurs repeatedly. If we are talking about a new employee, it is necessary to give him time to train (in the absence of work experience).

Inconsistency can also be called the lack of any skills and qualities in a subordinate. For example, education. This is the most common reason why the dismissal procedure can be carried out without any problems.

Causes

The reasons for non-compliance with the position held, according to established laws, can be divided into several parts. In total, there are two real points at which you should be concerned about removal from a particular job due to non-compliance. This:

health status;
lack of sufficient qualifications.

There are no other serious reasons. The second point requires great attention. We should talk about it separately. After all, the lack of sufficient qualifications is not such a simple matter. And dismissing an employee for unsuitability for the position can be difficult. Although it can be easier to find the reason why a staff member cannot cope with a particular job than to remove him from his position for health reasons.

In the first case, getting rid of an employee is not so easy. After all, the subordinate must experience a permanent disability, which will become an obstacle to the performance of certain job duties. If health problems are corrected (for example, if you have visual impairments, you can wear glasses or contact lenses), the employer does not have the right to fire.

But that is not all. After all, in order for the process of removal from work to go without problems for the boss, it is necessary to obtain documentary evidence of the health status of the subordinate. For example, use it to record all the features and diseases of the frame. You can ask the employee to undergo an additional medical examination, which will confirm the state of health at the time of potential dismissal. In this case, it is recommended to pay the commission and allocate time to go through the doctors. You cannot fire someone without evidence for not being able to fill a vacancy due to health reasons. If an employee goes to court and can prove that the medical commission has confirmed the fact that he is healthy, management will certainly suffer one form or another of punishment.

Insufficient qualifications

Now we should understand the second compelling reason for removal from office. The thing is that lack of qualifications is the most common case of dismissal. Sometimes it can be very problematic to prove that a citizen cannot, for one reason or another, cope with the work assigned to him. But it’s easier to do this than to fire someone for health reasons. Especially if we are talking about a position that requires the mandatory provision of a medical record and regular examinations by specialists.

Insufficient qualifications is the lack of the necessary skills and abilities in an employee that help perform the assigned work. This also includes education. It either does not correspond to the position held (a lawyer works as a doctor), or is completely absent.

To avoid problems in the future, the employer must seriously approach the issue of personnel selection at the interview stage. After all, often when dismissed for failure to comply with the post, those fired go to court. And the judicial authorities take the side of the subordinate. This happens when the employer is presented with a complete resume, which clearly indicates the applicant’s inadequacy for the vacancy. Proper selection of personnel will help avoid this problem.

It is because of their qualifications that employees in companies must undergo special courses from time to time. This is a kind of training. That's what they're called - advanced training courses. Thanks to them, subordinates constantly improve their skills and abilities and receive the knowledge necessary for their work.

It is worth noting that lack of qualifications is a serious reason for removal from work and position. It is possible to fire someone for being unsuitable for the position held, but you will have to ensure that the skills and abilities of each subordinate are checked. There are two concepts of testing - mandatory and optional.

Mandatory certification is not provided for all positions, but only for certain industries. For example, when employed in the field of government agencies or medicine. In this case, all subordinates are required to undergo certification from time to time. Its failure is documentary evidence for the dismissal of personnel who did not pass the test.

But the second type of certification is carried out exclusively on the initiative of the boss. But here, too, not everything is as simple as it seems. After all, in order to conduct unscheduled checks on the suitability of positions held, it is necessary to first develop acts and plans, local regulations that establish the procedure, form, evaluation criteria, as well as the time and conditions for testing. Without these documents, certification is considered invalid.

One more point: the contents of all the above documents must be fully communicated to each subordinate. If employees have not been informed, then raising the issue of inadequacy for the position held due to insufficient qualifications makes no sense. Test results cannot be considered legal.

We should not forget that the performance of employee certification must be evaluated by someone. The company administration is not involved in this. The employer is obliged to form and approve a certification commission that will study the results of personnel testing. She also makes a decision about how suitable the subordinates are to the company.

Not always

It has already been said that sometimes it is possible to offer to personnel if inconsistency with a particular post has been identified. At enterprises where this possibility is provided, the situation with dismissal is much more complicated than where the transfer does not take place. What is the main problem?

The thing is that, in accordance with the Labor Code of the Russian Federation, dismissal for the fact that an employee does not meet certain criteria can only be done in a situation where there is no possibility of transferring the personnel to another position. In other words, if a person could have been transferred to a new job within the corporation, but the employer decided to hide this fact, dismissal due to inadequacy for the position held may be considered illegal. More precisely, carried out in violation of the rules. If a transfer is envisaged, but it cannot be carried out due to lack of space, it is necessary to draw up an act with which the dismissed person becomes familiar. The latter must sign a notice stating that he is aware of the absence of available vacancies for transfer.

To protect the company, it is recommended to offer subordinates suitable vacancies for transfer. And in case of refusal, draw up a special act that will confirm that the employer previously tried to keep a position in the organization behind the scenes. Even if we are talking about a different position. The main thing is that the employee was suitable for the new vacancy. The presence of an act and a written refusal of a subordinate to transfer (usually we are talking about demotion) is an additional safety net for the employer. So, how to properly carry out the dismissal procedure?

Is there a right

The first stage is conducting certification or familiarizing with a medical report on the health status of subordinates. Once confirmation of the inconsistency of the vacancy has appeared, you can proceed with the immediate dismissal of the personnel. But before that, it is recommended to offer a transition to a more suitable position within the company. This is the second step towards properly dismissing a subordinate. The third stage is about the employee’s refusal to transfer (demotion) and receiving written confirmation of the decision from the personnel. Sometimes you can do without the last point. In such circumstances, it is recommended to have other evidence that the employee was offered an alternative to dismissal, but he refused it.

The fourth step is also considered an important point. After all, if an employer is thinking about how to fire a person for inadequacy for the position held, it is necessary to study the Labor Code. In some cases, management, on its own initiative, does not have the right to remove its subordinates from work. For example, pregnant women cannot be fired at the request of the employer. This is a direct violation of the law. This check should be given serious attention. If it is confirmed that it is possible to dismiss the employee, the procedure for registering the subordinate as dismissed continues.

Order

How to fire an accountant for inadequacy of the position held? Just like any other subordinate. After all the above steps, it is necessary to issue an order stating the dismissal of the personnel. It must indicate the reason. You must refer to Article 81 of the Labor Code of the Russian Federation, paragraph 3. It is the discrepancy between the vacancies that is stated in the order.

Next, you will have to familiarize the person being dismissed with the decision. The subordinate must put his signature on the order. In practice, few people will agree to accept dismissal under the article. Therefore, in case of refusal to sign a document, you need to draw up an act about this. In this case, the employer will be able to protect itself from problems if the employee decides to complain about illegal dismissal.

After reviewing or drawing up the relevant act, the management of a particular company registers the boss’s order in a special journal. It must record all orders regarding personnel for 75 years.

Calculation

How to fire an employee for unsuitability for the position held? After all the above points, you should make a settlement with the subordinate. This is another required step. After all, every employer is obliged to pay money for time worked at the time of removal from office. The subordinate is given a special invoice receipt, which records the due payments. Some companies provide for the withholding of a certain percentage of earnings upon dismissal under the article. This is also stated in the issued certificate.

The subordinate must come to the accounting department with the document and receive the funds. If he is at the workplace on the day of dismissal, then the payment is made instantly. In the absence of a citizen, the money due to the dismissed person is issued the next day after contacting the accounting department for payment.

Employment history

It's a small matter. After all, the main dismissal procedure was carried out in compliance with all the rules. What else should you pay attention to? Can I be fired for inadequacy of the position held? Yes, but the employer is obliged to document his decision. Evidence of non-compliance is required. After all the previously listed steps, you should give your subordinate his work book. Only in advance is a corresponding entry made about the reason for dismissal from work. A link to the Labor Code is indicated. You can write in the “labor” document something like: “Dismissed under Article 81, paragraph 3 (“a” - for health reasons or “b” - for lack of qualifications) of the Labor Code of the Russian Federation due to inadequacy of the position held.”

Next, the employer must make a copy of the dismissal person’s work book, and also put the appropriate mark on the subordinate’s personal card. Suspension from work due to an article is a serious decision. And it does not have the best effect on the company's rating. Therefore, not everyone makes copies of the work records of dismissed employees. Making entries in this document is a mandatory step. But copies are made at the discretion of the employer.

Often an employee refuses to receive a work book. What to do in such a situation? An employer is required by law to issue a work book to a subordinate upon dismissal. Therefore, in order to fully answer for the inadequacy of the position held, you will have to notify him in writing that it is necessary to obtain a “labor certificate”. This is done by sending a registered letter with information. Next, an act of refusal to receive a “labor” document is drawn up. Only such an algorithm of actions will help to fully protect the employer from violating the process of removal from a vacancy.

Is it possible to fire someone for being unsuitable for the position they hold? Yes, but you will have to follow certain rules. After all, this issue is considered controversial. The employer must make considerable efforts to ensure that the removal process is completely legal. If an employee is ready to receive a work book, he must sign in a special journal. It will confirm that the document was issued by the employer.

Income certificates and military registration and enlistment office

The next point is not mandatory, but desirable. We are talking about issuing a certificate of income in form 2-NDFL. By law, any employee (even a former one) has every right to demand this document from the employer. Therefore, it is recommended to prepare it in advance and issue it. For example, along with money for time worked.

The last thing to do is to check whether the subordinate is a conscript. If the employee did not serve in military service, the employer reports his dismissal to the military registration and enlistment office. This rule applies only to men. With women everything is much simpler. They can be given a work book with a certificate of income and forget that the personnel worked at the enterprise. The dismissal of an employee for non-compliance with the position held was carried out taking into account all the specifics. In case of complaints, the employer's innocence can be proven.

If an employee is not suitable for the position he or she occupies, he/she will be subject to dismissal. In accordance with the Labor Code of the Russian Federation, there may be: 1) inconsistency of an employee with the position held or work performed due to health status in accordance with medical reports (subparagraph “a”, paragraph 3 of Article 81 of the Labor Code of the Russian Federation) and 2) inconsistency of the employee with the position held or work performed due to insufficient qualifications confirmed by certification results. We will consider all these cases in detail.

INCOMPATIBILITY OF AN EMPLOYEE WITH THE POSITION HELD OR THE WORK PERFORMED DUE TO HEALTH STATE IN ACCORDANCE WITH A MEDICAL CLINICAL

The Labor Code of the Russian Federation contains three grounds for dismissal related to the employee’s health condition: 1) the employee’s refusal to transfer to another job due to health conditions in accordance with a medical report (clause 8 of Article 77 of the Labor Code of the Russian Federation); 2) a state of health in accordance with a medical report that prevents the employee from occupying a position (performing work) provided for by the employment contract (subparagraph “a”, paragraph 3 of Article 81 of the Labor Code of the Russian Federation); 3) recognition of the employee as completely disabled in accordance with a medical report (clause 5 of Article 83 of the Labor Code of the Russian Federation).

The presence of three grounds for dismissal related to the employee’s health status causes difficulties in their application. When applying them, the following should be taken into account: firstly, if the employee’s health condition does not allow the employee to work at all, then dismissal must be made according to Art. 83 Labor Code of the Russian Federation; secondly, if the employee’s state of health does not allow the employee to occupy a position (perform work) provided for in the employment contract concluded with him, but at the same time does not prevent him from performing other work (as follows from the medical report), then the employer must transfer such an employee (from his consent) to other available work that is not contraindicated for him for health reasons (Part 2 of Article 72 of the Labor Code of the Russian Federation). The absence of such work or the employee’s refusal to transfer is grounds for his dismissal under clause 8 of Art. 77 Labor Code of the Russian Federation.

Thirdly, the necessary conditions for the application of subparagraph. "a" clause 3 art. 81 are as follows: an employee, in accordance with a medical report, is not directly contraindicated from performing the work stipulated by the employment contract, but his health condition prevents the proper performance of labor duties stipulated by the employment contract (for example, the employee does not

develops the established production rate, the quality of work performed decreases, etc.), i.e. the employee no longer corresponds to the position held or the work performed; the employer, due to the employee’s inconsistency with the position held or the work performed, does not consider it possible for the employee to further continue his previous job (fulfillment of job duties in the previous position) and offers another appropriate job, indicated to him for health reasons, if such work is available in the organization; the employee refuses to be transferred to another job or there is no such job in the organization.

An offer to an employee of another suitable job is made in writing and under his signature. The employee’s refusal of the proposed work is also documented in writing and signed by the employee.

An employee dismissed on the grounds provided for in subsection. "a" clause 3 art. 81 of the Labor Code of the Russian Federation, severance pay is paid in the amount of two weeks’ earnings (Part 3 of Article 178 of the Labor Code of the Russian Federation).

It is necessary to pay attention to the fact that, as follows from the content of draft federal law No. 329663-3 “On Amendments and Additions to the Labor Code of the Russian Federation” adopted in the first reading, this basis for the dismissal of an employee at the initiative of the employer upon final adoption and entry into force this federal law will be excluded from the text of the Labor Code of the Russian Federation.

INCOMPATIBILITY OF THE EMPLOYEE WITH THE POSITION HELD OR THE WORK PERFORMED DUE TO INSUFFICIENT QUALIFICATIONS CONFIRMED BY CERTIFICATION RESULTS (subparagraph "b" of paragraph 3 of Article 81 of the Labor Code of the Russian Federation)

In labor legislation, qualification is understood as the level of preparedness, skill, and the degree of suitability of an employee to perform work in a certain position or profession, determined by rank, class, rank and other categories. The qualifications of a hired employee are established based on educational documents, as well as documents confirming the employee’s experience in the position (profession) for which he is hired. During the course of work, an employee’s qualifications are established through a procedure such as certification.

Certification- this is a test of a specific employee of an organization for professionalism and suitability for work in modern conditions.

The main objectives of certification are: 1) objective assessment of the activities of employees and establishment of their suitability for the position held; 2) assistance in improving the efficiency of the organization; 3) identifying prospects for using the potential capabilities of managers and specialists; 4) formation of highly qualified personnel of the organization; 5) ensuring the possibility of personnel movement; 6) stimulating the professional growth of employees.

Mandatory certification is established by special federal laws in relation to a small number of workers in certain categories and certain sectors of economic activity. These are: employees carrying out activities related to operational dispatch control in the energy sector; workers whose activities are related to the movement of trains and shunting work on public railway tracks; workers responsible for ensuring the safety of navigation; workers of hazardous production facilities; workers working at chemical weapons storage facilities and chemical weapons destruction facilities; aviation personnel; workers performing work with sources of ionized radiation; library workers; personnel of space infrastructure facilities; teaching and management staff of educational institutions; other workers.

Certification involves a differentiated approach to various categories of employees in accordance with the level of complexity of the tasks being performed or the job duties and responsibilities performed, contained in the employee job descriptions.

The main local regulatory act that determines the procedure for conducting certification of employees of an organization is the Regulations on Certification. The organization’s development of this provision is intended to detail the procedure for employee certification.

The following sections can be included in the Certification Regulations: 1) general provisions; 2) preparation for certification; 3) conducting certification; 4) assessment of the certified employee; 5) legal consequences of certification; 6) the procedure for considering labor disputes.

When developing it, it is necessary to take into account the provisions of Resolution of the Council of Ministers of July 26, 1973 No. 531 “On the introduction of certification of managers, engineering and technical workers and other specialists of enterprises and organizations of industry, construction, agriculture, transport and communications” and approved in accordance with it 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 (Resolution of the State Committee on Science and Technology of the USSR and the State Committee for Labor of the USSR dated October 5, 1973 No. 470/267) .

Ancillary acts that ensure the organization and conduct of certification are the internal labor regulations of the organization, the Regulations on the structural divisions of the organization, and job descriptions of employees. To implement the stages and procedures of certification, orders from the head of the organization to conduct certification, 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 organizations in various sectors of the national economy differs from each other, but, as a rule, certification of employees must be carried out at least once every five years.

To carry out certification it is necessary: 1) to form a certification commission; 2) draw up lists of those being certified and a schedule for their certification; 3) prepare the necessary documents for the work of the certification commission; 4) approve the prepared list of questions for certification tests.

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 certified person no later than a month before certification. 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.

Certification in an organization can be carried out in several stages. For example, the first stage is testing; the second is an individual interview. The purpose of the first stage is to assess the employee’s preparedness in the field of professional knowledge based on the test results on the topics proposed in the tests. To implement this stage, the organization develops tests consisting of questions with alternative answers and tasks on professional topics. Tests should cover a wide range of issues and reflect all current changes and additions made to the current legislative and regulatory framework.

The certification commission establishes the number (or percentage of the total number) of correct answers, which determines the successful completion of certification testing by an employee of the organization. To recognize the test results as positive, the number of correct answers should not be less than 2/3 of the total number.

During an individual interview, a decision is made on the employee’s suitability for the position held.

In accordance with the Regulations on Certification, for each employee of the organization being certified, no later than two weeks before the start of the certification, the following documents are submitted to the certification commission: 1) a questionnaire characterizing the personality of the person being certified; 2) final sheet with test results; 3) a review of the employee subject to certification, signed by his immediate supervisor.

The review is the main document characterizing the level of the employee’s theoretical and practical skills, his personal and moral qualities and the correspondence of this level to the position held. The review should reflect not only general indicators characteristic of all categories of employees, for example, level of education, length of service in a given position, etc., but also the individual characteristics of the person being certified, for example, the degree of independence in the performance of job duties, the quality of their performance and responsibility for the assigned work, 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.

An individual interview is conducted in the presence of the person being certified and his immediate supervisor. If the person being certified does not appear at the meeting of the certification commission for unexcusable reasons, then the certification can be carried out in his absence.

The regulations on certification of various organizations contain the following list of indicators for assessing the qualifications of employees: 1) education; 2) work experience in the specialty; 3) professional competence; 4) work ethics, handling style; 5) ability to be creative, entrepreneurial; b) ability to carry out commercial activities; 7) 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, 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.

Based on the results of the certification, in relation to each certified employee, the certification commission gives one of the following assessments: 1) corresponds to the position held; 2) corresponds to the position held, subject to improvement of work and implementation of the recommendations of the certification commission with re-certification within a specifically established period; 3) does not correspond to the position held.

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.

Based on the results of the certification, the certification commission can submit the following recommendations for consideration by the head of the organization: 1) on encouraging individual employees for their successes; 2) on changing the size of their official salaries; 3) on the establishment, change or cancellation of bonuses to official salaries; 4) on inclusion in the nomination reserve; 5) about demotion or dismissal from a position; b) on improving the qualifications of individual employees; 7) on improving the performance of certified employees and the results of their work.

The head of the organization, taking into account the assessments and recommendations of the certification commission, makes the following decisions: on rewarding individual employees for the successes they have achieved; on changes in official salaries for relevant positions; on changes or cancellations of bonuses to official salaries; about referral for advanced training; about promotion, transfer to another job and dismissal from work.

In accordance with part two of Art. 81 of the Labor Code of the Russian Federation, dismissal on the grounds provided for in paragraph 3 of Art. 81 of the Labor Code of the Russian Federation, is allowed only if it is impossible to transfer the employee with his consent to another job. 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), a transfer order is issued. If the employee refuses the transfer or there is no other job in the organization, then an order for his dismissal is issued.

Regulatory legal acts defining the procedure for conducting mandatory certification provide that the head of the organization can make a decision based on the results of certification no later than two months from the date of certification of the employee. Thus, 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 establish that the head of an organization can decide to transfer an employee who, based on the results of certification, is recognized as not corresponding to the position held, within a period of no more than two months from the date of certification; If it is impossible to transfer the employee, the head of the organization may, within the same period, in accordance with the established procedure, terminate the employment contract with him.

After the expiration of the specified period, transfer of the employee to another job or termination of the employment contract with him based on the results of this certification is not allowed.

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.

A different procedure is followed for the dismissal of employees who are heads (their deputies) of elected trade union collegial bodies of the organization, its structural divisions (not lower than shop units and equivalent to them), who are not released from their main work.

In order to dismiss the named employees due to inconsistency with the position held (the work performed), it is necessary to obtain the consent of the relevant higher elected trade union body (Article 374 of the Labor Code of the Russian Federation). In a similar manner, the dismissal of senior employees (manager, his deputies) of the elected trade union body of a given organization is carried out (Article 376 of the Labor Code of the Russian Federation).

In cases where the participation of an elected (corresponding higher elected) trade union body in considering issues related to the termination of an employment contract at the initiative of the employer is mandatory, the employer must, in particular, provide evidence that when terminating an employment contract with an employee due to his insufficient qualifications , confirmed by the result of the certification, to the certification commission during the certification, which served as the basis for the dismissal of the employee under clause. "b" clause 3 of Art. 81 of the Labor Code of the Russian Federation, included a representative from the corresponding elected trade union body (Part 3 of Article 82 of the Labor Code of the Russian Federation).

In the unified form of the order to terminate the employment contract (No. T-8), the line “Bases” lists the documents on the basis of which the decision to dismiss the employee was made. First of all, this is an order from the head of the organization, issued based on the results of the certification. For completeness, you can indicate the details (date, number) of the decision (conclusion) of the certification commission.

In addition, if the employee was offered a transfer to another job and he refused, it is necessary to provide a link to the employer’s offer, as well as a document confirming the employee’s refusal of the offered job. If the organization does not have a job to which the employee can be transferred, then this fact must be recorded in the order issued based on the results of the certification. If the person being dismissed is a trade union member, the order must contain a reference to a document that sets out the opinion or consent of the elected trade union body (minutes of the meeting).

If an employee is dismissed, the order and work book indicate: “due to inadequacy for the position held,” if a worker, then “due to inadequacy for the work performed.”

Taking into account the above, an entry is made in the order: 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, sub. "b" clause 3 of Art. 81 of the Labor Code of the Russian Federation. Reason: order to carry out activities based on the results of certification dated 10/05/2004 No. 150-k, minutes of the meeting of the certification commission dated 10/01/2004 No. 300, proposal for transfer to another job dated 10/06/2004, statement by I.I. . Ivanov on refusal to transfer to another job dated October 6, 2004. Based on the order, a corresponding entry is made in the employee’s work book

Personnel records management and Labor law

One of, perhaps, the most negative reasons for dismissal is the inadequacy of the employee for the position he occupies. It would seem that when applying for a job, specialists from the organization’s HR department carefully check all the candidate’s documents: diplomas, certificates and certifications confirming his qualifications, rank, and experience. However, as a result of work, all documents about the employee’s education, knowledge and skills may say the opposite - that he cannot cope with the entrusted responsibilities. The employer has only one option - to dismiss the subordinate under the article provided for by law for inadequacy for the position held. How to do this within the law?

The legislative framework

In order for the commission's decisions to be objective and fair, the participation of representatives from various departments and services of the company is mandatory. The commission makes decisions by a majority vote. Most often, at least 2/3 of voters. Options for decisions made may be as follows:

corresponds to the position;
does not correspond to the position;
does not correspond to the position occupied, it is advisable to use it in a position with a smaller volume of work, etc.

Based on the results of examining the employee, the commission may also come to positive conclusions. For example, to a decision to award a bonus to the person being certified, send him for training, or promote him to a more prestigious position, which in practice is quite rare.

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

Among the grounds for dismissing 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 business qualities of the employee 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.

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 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).

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...

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