Dismiss for non-compliance with the position held sample

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

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

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

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

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

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

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

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

Carrying out certification

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

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

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

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

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

Photo gallery: examples of document preparation

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

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

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

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

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

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

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

Photo gallery: documents drawn up during dismissal

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

Sample entry in a work book

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

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

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

Judicial practice: examples

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

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

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

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• dismissal without certification;

Citizen N. was dismissed under clause 3 of Art. 81 of the Labor Code of the Russian Federation due to inconsistency with the position held. Certification of the plaintiff's suitability for the position held or work performed was not carried out; in order to justify the plaintiff's dismissal, the defendant referred to the plaintiff's lack of a Dental Nursing certificate.

Resolving the stated requirements, the court of first instance came to the correct conclusion that dismissal on the grounds specified in paragraph 3 of Art. 81 of the Labor Code of the Russian Federation, is possible only after certification of the employee. (Cassation ruling of the St. Petersburg City Court dated February 1, 2011 N 33–424/2011)

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

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

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

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

What are the general provisions?

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

Who can be fired for inadequacy of the position?

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

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

What are the grounds for dismissal?

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

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

Who cannot be fired for being unsuitable for their position?

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

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

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

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

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

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

How is certification carried out?

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

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

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

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

What can an employer do after certification?

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

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

What is the procedure for dismissing an employee?

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

Algorithm of action during the dismissal process

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

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

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

Cases in judicial practice

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

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

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

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

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

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 a special category of employees who cannot be fired if they deviate from their job 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 in accordance with 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, complete information about the employee is filled in - 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 dismissal order for a specific person must be kept 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

Recently, it has become very common to go to court 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.

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 employer’s local regulatory act, 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, an 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 the 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).

“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 cope with 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

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. The characteristics of the qualifications required for an employee to carry out a certain type of professional activity are contained in professional standards, ETKS and the qualification directory of positions for managers, specialists and employees.

For your information

Currently, professional standards are being actively developed, which will ultimately 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, knowledge of one or more foreign languages, the 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 the State Civil Service of the 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 the Investigative Committee of the 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

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 Autonomous District Court 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 of various qualities of the employee, other documents, information about which and their forms may be contained in regulations on certification.

Dismissal procedure

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 making this decision (attestation sheets, minutes of the meeting of the attestation 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 localities if this is provided for by the collective agreement, agreements, or employment contract.

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 vacancies 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

“Combined kindergarten 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 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:

1. 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 maintaining and storing work books, 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;
2. 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 If an employee who is a representative of the labor collective is subject to participation in collective bargaining, he cannot be dismissed or transferred to another job without the prior consent of the body that authorized 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.

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, clause 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 to the employee, upon his written application, duly certified copies of documents related to work, and a certificate of the amount of earnings for the 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 compulsory social insurance in case of temporary disability and in connection with maternity”).

Summarize

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.”