Today we will talk about this method of dismissing an employee as a discrepancy between his qualifications. Employers often assume that this method is universal and convenient for dismissing employees. But with this, employers make quite a lot of mistakes.
One of the first mistakes is that the employer does not have special Local Regulations (hereinafter referred to as LNA), which should regulate the procedure for creating a qualification commission, the procedure for conducting certification and the calculation procedure for determining the results of such qualifications. The presence of such LNA is not important in itself, but only if there is written evidence that employees are familiar with such LNA. Accordingly, in order to ensure that there are no grounds for mismatching the results of the qualifications performed, the employer must confirm the presence of the signature of a particular employee in such LNA.
The second mistake that employers often make is that the company’s personal identification documents are personalized, that is, they are written for a specific employee, and not for dismissal of all employees on this basis. Normal documents should provide not specific, but general grounds for determining the level of qualifications of certain employees, and not specific or individual ones. The presence of personalized LNA may become the basis for challenging them, and as a result, challenging the results of the certification.
The third mistake that employers make is that LNAs do not contain a reasonable level of requirements for employees. 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 an employee knowledge that does not correspond to his qualifications, or that is inflated, then such demands can be quite successfully challenged by the employee in court.
Separately, attention should be paid to the fact that employers quite often forget about the presence of trade unions in the organization. If there is a trade union at the enterprise, 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 complicated process. In fact, this is not so; only three people are enough to create a trade union.
A union can be formed within one day and does not require specific registrations, so workers who could potentially be fired for lack of qualifications can use this remedy quite effectively by forming a union and requiring the employer to include union representatives on the certification committee.
If, based on the results of certification, the organization dismisses a trade union member, then termination employment contract must be additionally agreed with the trade union (Part 2 of Article 82 of the Labor Code of the Russian Federation).
In this way, employees can effectively protect their interests.
Inconsistency with the position held, as provided for in Article 81 of the Persians, paragraph 3 Labor Code Russian Federation, where the reason for dismissal is the lack of qualifications of the employee.
This basis for dismissal refers to dismissal at the initiative of the employer, which means that the employer must comply with the established prohibitions on dismissal individual categories workers (Article 81 of the Labor Code of the Russian Federation).
In the absence of a direct prohibition, it is possible to dismiss an employee due to insufficient qualifications 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 dismiss an employee due to inadequacy of the position held during the period of 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 vacation or illness and formalize the employee’s dismissal on the first day of returning to work. If the employer violates this procedure, the employee has the right to go to court and will be treated as illegally 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 in a lower position and lower paid job) (Part 3 of Article 81 of the Labor Code of the Russian Federation). You can offer vacant positions in the organization to an employee in writing.
The employee must give his consent in writing or refuse the offered vacancies. If the employee verbally refuses to sign the proposal, the employer must draw up a document refusing to sign in two copies.
Record about dismissal due to inadequacy of the position held in the employee’s work book it will read like this: “Dismissed 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 certification results, in the dismissal order in the T-8 form, it is necessary to indicate certification documents (clause 3, part 1, article 81 of the Labor Code of the Russian Federation). These are: minutes of the meeting of the certification commission, an order on measures based on the results of certification, as well as an offer of another job (position or specialty) with a written refusal of the employee.
“If you don’t want it in a good way, I’ll fire you for inconsistency!” - the manager shouts in anger at a subordinate who failed to complete the assigned task or performed his functions poorly. But does the manager, threatening dismissal “under the article”, realize the complexity and duration of such termination of the employment contract? After all, dismissal at the initiative of the employer very often ends in labor disputes, since many managers simply do not want to delve into the dismissal procedure, forget about meeting deadlines, and referring to the database of local regulations does not always help. Today we will talk about perhaps one of the most difficult grounds for dismissal - the employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by certification results.
The concept of “certification” and the obligation to carry it out
Based on definitions in dictionaries and legal norms, we can say that certification is a procedure carried out to evaluate the work of an employee, determine his business qualities and qualifications in order to establish his suitability for the position held.What is meant by qualification is explained in Art. 195.1 Labor Code of the Russian Federation: This is the level of knowledge, skills, professional skills and experience of the employee. Characteristics of the qualifications necessary for an employee to carry out a certain type of work professional activity, contained in professional standards, ETKS and the qualification directory of positions for managers, specialists and employees.
For your information
Currently actively being developed professional standards, which will eventually replace qualification reference books.
Based on qualification reference books and professional standards, the employer develops job descriptions. They define the duties, rights and responsibilities of an employee holding a certain position. In addition, the employer can specify in them the requirements for work experience and level of education, as well as other requirements for a particular position (for example, possession of one or more foreign languages, ability to work on a computer).
It should be noted that job regulations are being developed for state civil servants, the provisions of which are taken into account during certification. And the results of the execution of official regulations in force Art. 47 Federal Law of July 27, 2004 No. 79‑FZ “On State Civil Service Russian Federation» are taken into account when assessing the professional activity of an employee during certification.
It is necessary to clearly and uniformly define the requirements for length of service and experience, professional skills and education for a specific position or profession, so that during the certification procedure, the results of which may serve as grounds for dismissal of an employee, no questions arise regarding the interpretation of certain provisions of the instructions.
Regarding the mandatory nature of certification, we will say the following. Carrying out this procedure in commercial structures is not necessary: neither the Labor Code nor any other regulatory act requires this. However, if the company’s activities are carried out in a special field, such as education, certification will still have to be carried out.
But for some areas of activity or categories of employees, laws and departmental acts establish the obligation to conduct certification. Let's name some of them:
- state civil and municipal employees;
- police officers;
- teaching staff ( Federal Law of December 29, 2012 No. 273‑FZ “On education in the Russian Federation”);
- rescuers ( Art. 24 Federal Law of August 22, 1995 No. 151‑FZ “On emergency rescue services and the status of rescuers”);
- prosecutorial employees who have class ranks or occupy positions for which the assignment of class ranks is provided ( Art. 41 Federal Law of January 17, 1992 No. 2202‑1 “On the Prosecutor’s Office of the Russian Federation”);
- employees of the Investigative Committee ( Art. 21 Federal Law of December 28, 2010 No. 403‑FZ “On Investigative Committee Russian Federation");
- heads of unitary enterprises ( Art. 21 Federal Law of November 14, 2002 No. 161‑FZ “On state and municipal unitary enterprises”);
- workers of a hazardous production facility;
- persons holding positions related to ensuring the safety of navigation, flights and movement of ground vehicles ( clause 9 of the Decree of the Government of the Russian Federation of August 30, 1993 No. 876 ) .
If an employee constantly fails to cope with tasks, performs his work poorly or does not perform any functions at all, the employer has the right to initiate an unscheduled certification. Its results may also be grounds for dismissal. Let us note that some regulations establishing the procedure for certification of employees of certain categories provide for the possibility of carrying out such certification, indicating the reasons, in the event of which it is possible to certify an employee unscheduled. For example, according to Order of the Prosecutor General's Office of the Russian Federation dated June 20, 2012 No. 242 extraordinary certification of a prosecutor's employee is carried out in the presence of significant omissions in service, at the request of the employee himself, as well as by the certification commissions of the prosecutor's offices of the constituent entities of the Russian Federation and specialized prosecutor's offices equivalent to them, and the Academy of the Prosecutor General's Office upon promotion to a higher position.
Documentary support for certification
Any organization, institution or government body that is obliged (or wishes) to conduct certification of its employees must have a set of documents regulating this procedure. The most important thing is the provision on certification - it is in this local regulatory act that the employer must define the certification procedure in sufficient detail.For those organizations and institutions in whose areas of activity procedures for conducting certification at the departmental level have been adopted, it is much easier - the relevant documents spell out the main stages of certification, deadlines for notifying employees, the procedure for forming the certification commission and making decisions, and many other issues. But those for whom there are no such regulations will have to develop their own regulations. In this case, one of the regulations on this topic can be taken as a basis.
For your information
We recommend that you take full responsibility when drawing up a regulation on certification, since even the approval of such a regulation by a person who does not have the right to do so may lead to the cancellation of the certification results and, consequently, the reinstatement of the employee ( Appeal ruling of the Chukotka Court Autonomous Okrug dated October 27, 2014 in case No. 33‑173/14, 2‑25/14 ).
In addition to such a local act, there must be an order for certification, a certification schedule, an order for approval of the certification commission and regulations on its work, minutes of the meeting of the certification commission, documentation on the examination various qualities employee, other documents, information about which and their forms may be contained in the certification regulations.
Dismissal procedure
General overview We received information about the certification. Now let's look at how an employer should behave if, based on the results of the work of the certification commission, the employee is recognized as unsuitable for the position held.So, if an employee was unable to confirm during the certification that he has the qualifications necessary for a certain position, the employment contract can be terminated by clause 3, part 1, art. 81 Labor Code of the Russian Federation. Why can it? Because there is no obligation to fire an employee - the employer can send him to advanced training courses or transfer him to another position that matches his qualifications.
1. We take into account the opinion of the trade union body. If an employee whose qualifications are recognized as insufficient based on the results of certification is a member of a trade union, Part 2 Art. 82 Labor Code of the Russian Federation obliges the employer to send to the elected body of the relevant primary trade union organization a draft dismissal order, as well as copies of documents that are the basis for the adoption said decision(certification sheets, minutes of the meeting of the certification commission, etc.).
The elected body of the primary trade union organization, within 7 working days from the date of receipt of these documents, considers this issue and sends its motivated opinion to the employer in writing.
If the elected body of the primary trade union organization has expressed disagreement with the proposed dismissal, it holds additional consultations with the employer or its representative within 3 working days, the results of which are documented in a protocol ( Art. 373 Labor Code of the Russian Federation). If agreement is not reached, the employer, after 10 working days from the date of sending the draft order and copies of documents to the elected body of the primary trade union organization, has the right to make a final decision, which can be appealed to the relevant state labor inspectorate. The latter, in turn, considers the issue of dismissal and, if it is recognized as illegal, issues a binding order to the employer to reinstate the employee at work with payment for forced absence.
Remember 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 elected body of the primary trade union organization. During the specified period, periods of temporary incapacity for work of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted.
This responsibility should not be neglected, since if you dismiss an employee without taking into account the opinion of the elected body of the primary trade union organization (if there is one), in the event of a dispute, the court will reinstate the dismissed person, even if his qualifications really do not correspond to the position held (see. Ruling of the St. Petersburg City Court dated February 18, 2014 No. 33‑1999/2014 ).
2. We offer available vacancies. According to Part 3 Art. 81 Labor Code of the Russian Federation dismissal due to clause 3, part 1, art. 81 is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other locations, if so provided collective agreement, agreements, employment contracts.
Plenum of the RF Armed Forces in Resolution No. 2 indicated that the employer is obliged to provide evidence indicating that the employee refused to be transferred to another job or the employer did not have the opportunity (for example, due to the lack of vacant positions or jobs) to transfer the employee with his consent to another job available to this employer (paragraph 31). This means that job offers must be made in writing. However, it is also necessary to record the refusal of the offered vacancies.
Here is an example of the offer of available vacancies.
Municipal budgetary preschool educational institution
« Kindergarten combined type No. 2"
(MBDOU “Kindergarten No. 2”)
Ref. No. 3 To the teacher-defectologist
dated January 30, 2015 by T. A. Slabinina
Offer to transfer to another job
Based on the results of the certification conducted at MBDOU “Kindergarten No. 2” on January 19, 2015, it was established that you are not suitable for the position of a teacher-defectologist (minutes of the meeting of the certification commission No. 1). By order of the director dated January 21, 2015 No. 7 “On measures based on the results of certification”, it is recommended to transfer you, with your consent, to another position. In this regard, we offer you a list of vacant positions available at MBDOU “Kindergarten No. 2”:
1. Junior teacher - salary 10,000 rubles.
2. Watchman - salary 5,000 rubles.
In case of refusal of the offered vacancies, the employment contract with you will be terminated according to clause 3, part 1, art. 81 of the Labor Code of the Russian Federation.
Please notify us of your decision - consent to the transfer or refusal of it - in writing by 02/04/2015.
Director Hosts/A. I. Hosts/
I have read the proposal and received a copy. 01/30/2014, Slabinina
Let us remind you that such a proposal must be drawn up in two copies, one of which, with the signature of the employee who has read it, will remain with the employer. The employee can express his refusal or consent to one of the proposed vacancies directly on the employer’s copy or draw up a separate document.
After this, the employer has two options:
- if the employee agrees to one of the vacancies, an additional agreement to the employment contract is concluded with him and a transfer order is issued in form T-5. Also in force clause 4 of the Rules for Maintenance and Storage work records , approved By Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “About work books”, you need to make an entry in the work book about the transfer. And of course, record the transfer in your personal card;
- if the employee does not agree to the proposed vacancies or the employer does not have any at all, the employment contract is terminated. Read a little more about this below.
A similar ban has been established Part 4 Art. 261 Labor Code of the Russian Federation For:
- women with a child under three years of age;
- single mothers raising a disabled child under the age of 18 or a young child - a child under the age of 14;
- other persons raising a disabled child under 18 years of age or a child under 14 years of age without a mother;
- parents (other legal representative of the child) who are the sole breadwinner of a disabled child under 18 years of age or the sole breadwinner of a child under 3 years of age in a family raising 3 or more young children, if the other parent (other legal representative of the child) is not a member labor relations.
For your information
If you are dismissed due to clause 3, part 1, art. 81 Labor Code of the Russian Federation subject to an employee who is a representative labor collective to participate in collective bargaining, he cannot be dismissed or transferred to another job without the prior consent of the body authorizing him for such representation ( Art. 39 Labor Code of the Russian Federation).
If everything is normal and the employee does not belong to the category of those who cannot be fired, we issue a dismissal order - using the unified T-8 form or a form approved by the organization. But in any case, in the “Bases” column of the order, it is necessary to reflect the details of the act or conclusion of the certification commission about the inadequacy of a particular employee for the position held or the work performed due to insufficient qualifications, or the details of the employer’s order issued based on the results of the certification.
By virtue of Part 2 Art. 84.1 Labor Code of the Russian Federation The order to terminate the employment contract must be presented to the employee against signature. If this document cannot be brought to the attention of the employee or he refuses to familiarize himself with it against signature, a corresponding entry is made in the order (instruction).
4. We prepare a work book. According to paragraph 14, 16 Rules for maintaining and storing work books Entries in the work book about the reasons for termination of the employment contract are made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law. Let's give an example.
| №
records | date | Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law) | Name, date and number of the document on the basis of which the entry was made | ||
| number | month | year | |||
| 1 | 2 | 3 | 4 | ||
| … | … | … | … | … | … |
| 8 | 06 | 02 | 2015 | The employment contract was terminated | Order dated 02/06/2014 |
due to non-compliance | No. 11 | ||||
position held due to | |||||
insufficient qualifications, | |||||
confirmed by the results | |||||
certification, paragraph 3 of part 1 | |||||
Article 81 of the Labor Code | |||||
Russian Federation. | |||||
Director of the Hosts | |||||
Acquainted. Slabinina | |||||
The entry on the termination of the employment contract is certified by the signature of the employee responsible for maintaining work records, the seal of the employer and the signature of the person being dismissed ( clause 35 of the Rules for maintaining and storing work books). On the last working day, it is necessary to issue a work book to the employee, who, upon receiving it, must sign the personal card and in the book for recording the movement of work books and inserts in them ( clause 41 of the Rules for maintaining and storing work books).
5. Other actions to formalize dismissal. Of course, you need to get a personal card.
XI. Grounds for termination
employment contract (dismissal)The employment contract was terminated due to inconsistency with the job
positions due to insufficient qualifications confirmed by certification results, paragraph 3 of part 1 of Article 81 of the Labor Code of the Russian Federation O. I. Ruchkina
(job title)
(personal signature)
(full name)
Slabinina
(personal signature)
It is also necessary to pay the employee all amounts due to him, including compensation for unused vacation (Art. 140 Labor Code of the Russian Federation).
In addition, according to Part 4 Art. 84.1 Labor Code of the Russian Federation on the day of termination of the employment contract, the employer is obliged to issue the employee, upon his written application, duly certified copies of documents related to work, and a certificate of the amount of earnings for two calendar years preceding the year of termination of work (service, other activities) ( pp. 3 p. 2 art. 4.1 of the Federal Law of December 29, 2006 No. 255‑FZ “On mandatory social insurance in case of temporary disability and in connection with maternity").
Summarize
As you can see, the procedure for dismissing an employee based on the results of certification as not suitable for the position held is quite complicated. In the event of a dispute, the court will consider not only compliance with the procedure for terminating the employment contract considered by us, but also the certification procedure - whether it was really carried out, whether the employer has a set of documents defining the procedure for its implementation. And the court will definitely check the commission’s conclusions about the inadequacy of the dismissed person for the position held. Therefore, before dismissing an employee clause 3 part 1Art. 81 TKRF, think - maybe it’s better to send an employee to get some training in order to improve his skills?The general provisions of the Unified Tariff and Qualification Directory of Work and Professions of Workers were approved by Resolution of the State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions dated January 31, 1985 No. 31/3‑30.
Approved by Resolution of the Ministry of Labor of the Russian Federation dated August 21, 1998 No. 37.
Clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2).
Federal laws No. 79-FZ and dated March 2, 2007 No. 25-FZ “On municipal service in the Russian Federation”.
Federal Law of November 30, 2011 No. 342-FZ “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation.”
Clause 2 of Art. 9 of the Federal Law of July 21, 1997 No. 116-FZ “On Industrial Safety of Hazardous Production Facilities.”
“On measures to ensure sustainable operation of aviation, sea, river and road transport in 1993.”
“On approval of the Regulations on the procedure for certification of prosecutorial employees of bodies and institutions of the prosecutor's office of the Russian Federation.”
Approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for labor and wages accounting.”
The Labor Code of the Russian Federation states that the employer has the right to dismiss an employee for inadequacy for the position held. To prevent a dismissed employee from challenging his dismissal in court, the employer must comply with several rules.
Each position requires the employee to have certain qualifications. The employee who occupies it must correspond to it in terms of knowledge and work experience.
Since dismissal on such grounds is the initiative of the employer, he must dismiss the employee in compliance with all the norms and rules of the Labor Code of the Russian Federation.
The courts study dismissal at the initiative of the employer with special care. The slightest discrepancy leads to the employee’s reinstatement in the workplace with all the ensuing consequences.
In Art. 195.1 of the Labor Code of the Russian Federation clearly states what the professionalism of each specific employee is in each specific position. For young specialists who have just received theoretical knowledge, but have not yet gained experience, the requirements for assessing the level of professionalism are somewhat lower.
Requirements for an employee for each position are developed personally by the employer. But they must meet the requirements specified in the tariff and qualification directory of works and professions.
In order to be dismissed under an article for inadequacy of the position held, it is necessary to prove his unprofessionalism and non-compliance with the developed requirements for his position.
Only certification results can confirm such a discrepancy. Certification of employees and workplaces must be carried out every 5 years. This certification is carried out by special companies that have special permission to do this.
Before conducting certification, the employer must issue a corresponding order, which will indicate the timing of the inspection and the positions. Those employees who are subject to certification must be separately notified in writing. The employee must sign on the notice that he is familiar with the upcoming knowledge test.
If the results of the certification show that the employee’s qualifications do not correspond to his position, the employer should not immediately issue an order to dismiss such an employee.
In this case, the employer’s actions should be as follows:
- he can offer the employee to take advanced training courses;
- he can offer the employee a position that will correspond to his skill level.
If an employee refuses to study or is transferred to another position, then this is already grounds for terminating the employment relationship with him.
The employer must inform the employee of all suitable vacancies available to him. Familiarization takes place in the form of reading a printed document in which full list vacancies. If the employee agrees to the transfer, then opposite the selected position he writes “agree” and puts his signature.
If he is not satisfied with any vacancies, he can write “disagree” and sign.
If there are no vacant positions at the enterprise that correspond to the employee’s qualifications, then he can be fired for refusing to improve his qualifications. But the employer must draw up a report indicating that he has no vacancies.
All documents related to certification must be signed personally by the employee. This required condition which the employer must comply with in the event of dismissal of an employee.
If the employee simply refuses to sign, then the employer draws up a report for each refusal.
Leaving a vacancy due to non-compliance is an extremely complex process, containing a lot of nuances that every employee who is facing this event needs to know. The order of work performed in accordance with the requirements of the director is available in each organization.
How to fire for inadequacy of the position held?
It is important to clearly understand the structure of interaction between each sector and follow it strictly.
An employee can be fired on the day the order is signed regarding non-compliance with the vacancy. The low performance of an employee's rating is considered an insufficient basis. An employee's qualifications are confirmed annually through certification.
Not everyone knows how to fire an employee due to inadequacy for the position held. If the work performed is found to be of inappropriate quality, the employee may be reprimanded, and then, if the situation does not improve, the employee will be immediately dismissed. It is worth remembering that there is special category employees who cannot be fired if they deviate from their duties.
These include:
- Women who are pregnant;
- Single mothers who raise children without outside help;
- Citizens who are on vacation at their own expense or according to the plan at the current time;
- Women who are on maternity leave and have several children.
In order for an employee to leave a vacancy, it is necessary to test him in order to subsequently attach this paper to the dismissal document. This testing is also called certification. After confirmation of written non-compliance, a special order is issued, which must contain the timing and actual date of testing, as well as the results of certification.
However, according to some points of the law, the employer does not have the right to instantly dismiss an employee; according to the rules, management is obliged to provide a vacancy below the position held by the employee. In case of dismissal, the director sends documents for calculating severance pay to the accounting department.
Is it possible to fire a single mother for unsuitability for her position?
According to the law, as well as the Labor Code, the director does not have the right to fire a single mother who is raising a child completely alone without support. As an alternative to dismissal, the manager has the right to offer a vacancy that contains a lower status.
However, the grounds for dismissal for unsuitability for the position can be challenged. The fact of low compliance can only be proven after passing a special certification. In other cases, there are no reasons to leave the company. It is impossible to fire.
The procedure for dismissal due to inadequacy of the position held
There is a special procedure for dismissal by order, according to which departure from the company occurs. First of all, this is the preparation of a special commission that will conduct testing. According to the rules, this stage can be either written or oral.
Further, if the test is not passed, the employee may be offered another vacancy. If the employee refuses it, the papers are sent to a special department to calculate the unused vacation period and issue material resources according to the law.
How to issue a dismissal order?
An order for dismissal due to inadequacy of the position held is issued by the head of the company. There are some rules for formatting this document. It should be drawn up according to form number 8. At the very beginning of the document it is worth writing down the abbreviation of the company. Next fill in full information about the employee - date of hire, as well as contact information. The order must be filled out in a column that states the reasons for the employee leaving his position.
This order of dismissal specific person must be stored at the enterprise for the next 7 years. If an employee needs a copy of this paper, the accounting department is obliged to provide it.
Dismissal due to inadequacy of the position held - judicial practice
IN Lately It is very common to go to court in order to appeal the decision of an incompetent commission. The Labor Code has section number 16, which regulates the relationship between employee and employer in judicial practice. If the court decision turns out to be in favor of the employee, the employer is obliged to reinstate him in his position according to his salary.
Article for non-compliance with the position held
If we consider the legal side of the order to dismiss from a position, it is worth noting the article that regulates the legal relationship between the employer and the employee.
The most important point in dismissal is the low qualifications of the employee, and the employer must organize the necessary conditions for special testing. Federal employees undergo special non-compliance retraining.
It is worth remembering that the article that regulates this topic does not imply any guilt of the employee or causing material damage. An employer does not have the right to fire without existing reasons.
As you know, each position in an enterprise has its own qualification requirements. An employee who works in this position must meet all the specified requirements, because professionalism when hiring is not always assessed objectively. Certification can demonstrate the employee’s qualification level. If such compliance is not observed, the company has the right to dismiss for non-compliance with the position held.
Just so that the dismissal is not regarded as unlawful by both the labor inspectorate and the court, it is important to carry it out correctly, adhering to all current standards labor legislation. Since the dismissal of an employee inappropriate for his position is, in fact, an initiative of the employer, and not the employee himself, the courts closely study the entire procedure (its correctness) of dismissing an employee. And most often the case ends up in court, since the employee may not agree that his level of qualifications leaves much to be desired. In addition, it is not always permissible to dismiss an employee for professional unsuitability.
In what cases can you fire an employee if there is a qualification discrepancy?
Article 195.1 of the Labor Code establishes what the concept of employee qualification means. This is a set of certain knowledge, skills and abilities that an employee needs at a particular place of work, as well as the availability of professional experience. Therefore, most often, young employees who have not yet had time to develop their professional experience are assessed with slightly lower standards than employees with extensive work experience. Who sets these standards?
All requirements regarding the qualifications of an employee are developed directly by the employer himself, but they must be consistent with the norms of the tariff and qualification directory of works and professions. Thus, the developed professional standards must be known to the employee himself, not only before direct certification, but also in order to constantly improve his level of competence by constantly learning in the process of work.
In order to dismiss an employee under an article for non-compliance with the position held, you must have documents confirming such discrepancy - certification results. As stated in Article 81, paragraph 3, the legislator gives the employer the right to terminate the employment relationship with an employee who does not have sufficient professional qualifications to perform the work entrusted to him. You should also know, before conducting certification, who cannot be fired for performance inconsistency:
- an employee who is on vacation;
- an employee who is on sick leave due to temporary disability;
- pregnant employee;
- employees who are on parental leave;
- mothers who are raising children under 14 years of age alone.
Dismissing minor employees is also not an easy matter. It is necessary to obtain consent to dismissal from the commission for minors and from the labor inspectorate.
How does dismissal occur for non-compliance with the position?
Before dismissing an employee who, for one reason or another, is not suitable for performing the job functions assigned to him, it is necessary to conduct a certification. The purpose of this certification is to assess the experience, knowledge, skills and abilities of employees who work at the enterprise. Certification is mandatory for the employee in respect of whom it is carried out. Some enterprises even indicate in local regulations that the failure of a properly notified employee to attend certification is regarded as his/her professional incompetence.
Carrying out certification
The head of the enterprise, before certification, must issue an appropriate order for its implementation. Workers must be familiar with this order, about which they must put their personal signature. The order must contain information about the timing of the professional inspection. The employee who will be inspected by the certification commission must be given notice of the upcoming inspection several months before the start of the procedure.
An important issue in the correctness of dismissing an employee for professional incompetence is the compliance of the entire procedure with established standards. For example, Article 82 of the Labor Code establishes that the certification commission must include a representative from the trade union organization operating at the enterprise. It is very important to involve the trade union in this event, since it is the results of this certification that can serve as a reason for dismissing an employee for professional inconsistency.
It is necessary to evaluate an employee during certification, guided by the qualifications specified above. reference material, and job description the employee himself. This instruction must clearly state what an employee in this position must do, what work to do, what to know and be able to do. If an employee’s position requires him to receive additional education, which the employee refuses to receive, this is also included in the materials and results of the certification.
When to fire
If the results of the certification show that the employee cannot occupy the position entrusted to him due to insufficient knowledge or qualifications, there is no need to rush to dismiss the employee. Firstly, the employer himself can help improve the employee’s qualifications by sending him to courses or to receive special education. And secondly, the employee can be transferred to another job that matches his knowledge and skills. But if such an employee refuses a transfer, advanced training, or another position that may be lower paid, then dismissal can be carried out under the article of inadequacy of the position held.
It also happens that a company simply has nothing to offer an employee, there are no available vacancies. Then, the same article 81 allows you to dismiss an employee. If, however, there are vacancies, the employer must familiarize the employee with all of them, after which the employee must put his signature on this proposal from the manager with the vacant positions contained. The employee must give both consent and refusal to the transfer in writing. It is the written form of the employee’s refusal that has the legal force to assert that the employer has performed all the functions assigned to him by law to prevent the employee from losing his permanent job.
Plenum Supreme Court The Russian Federation, in its Resolution No. 2 of March 17, 2004, indicated that the employer must have all available evidence that the employee is not suitable for the position held, and the professional and business qualities that he evaluates certifying commission, should not be assessed one-sidedly. That is, it is necessary to evaluate all materials relative to a given employee in their entirety. Such materials may be customer complaints, reports from the immediate supervisor of a given specialist, acts and records of the presence of poorly done work, acts of defective products, incorrectness of the information and services provided, etc.
Another important nuance from practice is that you need to pay close attention to the mandatory presence of an employee’s signature on documents: on certification, on familiarization with the results of certification, on documents that are directly and directly related to the procedure. Otherwise, it will be very difficult for the employer to prove in court that all these materials are not fiction, and that the certification was actually carried out. When a situation arises that an employee simply refuses to sign, this refusal must be recorded, or an act of refusal signed by all members of the commission must be drawn up.
Dispute Resolution
p>Often the employee does not agree with the results of the certification. Just as I do not agree with the decision to fire myself. The importance of the procedural process of dismissing an employee should not be underestimated. After all, the employer often even “forgets” to offer all available positions for a given employee. In addition, it is clear from existing judicial practice that dismissals occur quite en masse at the initiative of the employer without conducting the certification itself. Then the question arises on what basis the employer decided that this employee cannot occupy a certain position.
If dismissal occurs for non-compliance, the employee will have to part with his position. And many employees will want to challenge such dismissal in court. Needless to say, if the procedure is violated when checking an employee’s suitability qualification requirements, he will be reinstated at his previous place of work, and even with a decent amount of compensation for moral damage caused.