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

What are the general provisions?

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

Who can be fired for inadequacy of the position?

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

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

What are the grounds for dismissal?

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

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 why he is leaving is clearly indicated. It is imperative to indicate that the employee was unable to cope with his duties and did not pass the certification.
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.

Dismissal on such grounds is a rather complex and legally “slippery” procedure.

1. General Provisions. Among other grounds for dismissing an employee at the initiative of the employer, the current labor legislation provides for the employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by certification results. This basis is established by clause 3, part 1, art. 81 of the Labor Code of the Russian Federation. Inconsistency with the position held or the work performed due to insufficient qualifications (hereinafter referred to as inconsistency in qualifications) can be defined as the objective inability of a qualified employee to perform properly assigned work. The inability to qualitatively perform the work stipulated by the employment contract is manifested in unsatisfactory results, systematic defects, failure to comply with labor standards, etc. Insufficient qualifications are expressed in the inability of the employee to perform the work stipulated by the employment contract in a high-quality manner. State of health and lack of qualifications are two reasons for which there is no subjective fault of the employee, but they can serve as a criterion for recognizing him as unsuitable for the work performed or the position held.
Dismissal on such grounds is a rather complex and legally “slippery” procedure. A lot of conditions provided for by law must be met for the dismissal to be lawful.
Let's start with the fact that although the lack of qualifications is not the employee's fault, the employer must create all the conditions for the employee to normally perform his job functions. If an employee does his job unsatisfactorily due to the fact that the administration of the enterprise has not created normal working conditions, then this cannot be considered a lack of qualifications.

The first significant point, if insufficient qualifications of an employee are nevertheless established, should be considered his belonging to one or another preferential category of workers. There are several categories of employees who cannot be dismissed on this basis. So, in accordance with Part 1 of Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract with pregnant women at the initiative of the employer is not allowed, except in cases of liquidation of the organization. Therefore, no matter how low the qualifications of a pregnant woman, she cannot be fired.

Also, the administration does not have the right to dismiss due to insufficient qualifications of workers who do not have sufficient experience due to a short period of work (young workers and specialists), as well as minors. In addition, you cannot fire someone due to a lack of qualifications just because the employee does not have a special education diploma, unless the law requires one. However, if, according to the law, special education is required for a given job, and due to its absence, the employee performs the work poorly, he may be dismissed on this basis.
According to Part 6 of Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activities by the employer - an individual) during the period of his temporary disability and while on vacation. This rule also applies to dismissal due to the employee’s inadequacy for the position held or the work performed due to insufficient qualifications.

2. Trade union participation. Also in this case, the fact that the employee belongs to a trade union plays a significant role - in this case, the dismissal procedure due to a mismatch in qualifications becomes noticeably more complicated. In accordance with Part 2 of Art. 82 of the Labor Code of the Russian Federation, the dismissal of employees who are members of a trade union under this clause is carried out taking into account the reasoned opinion of the elected trade union body. The Labor Code has established a special procedure for taking into account the motivated opinion of the elected trade union body when terminating an employment contract at the initiative of the employer (Article 373 of the Labor Code of the Russian Federation). This procedure consists of the fact that when deciding on the possibility of terminating an employment contract with an employee who is a member of a trade union on such grounds, the employer sends to the relevant elected trade union body a draft order, as well as copies of documents that are the basis for the decision to dismiss the employee. The trade union body, within seven days from the date of receipt of the draft order and copies of documents, considers the validity of the employer’s decision and sends it its reasoned opinion in writing. If the opinion is not submitted within seven days or it is not motivated, the employer does not take it into account. The Labor Code does not contain explanations as to which opinion of the trade union body should be considered unmotivated. The answer to this question can only be given by the practice of applying Art. 373 TK.

If the trade union body disagrees with the employer’s proposed decision, it must hold additional consultations with the employer or its representative within three working days, the results of which are documented in a protocol. If general agreement on the results of consultations is not reached, the employer, after ten working days from the date of sending the draft order and copies of documents to the trade union body, but no later than one month from the date of receiving the reasoned opinion of the trade union body, has the right to make a final decision, which can be appealed to State Labor Inspectorate. Within ten days from the date of receipt of the complaint (application), it considers the issue of dismissal and, if it is recognized as illegal, issues the employer a binding order to reinstate the employee at work with payment for forced absence. Compliance with this procedure does not deprive the employee or the trade union body representing his interests of the right to appeal the dismissal directly to the court, or the employer to appeal the order of the state labor inspectorate in court.

3. Offer another job. The next very important condition is the presence or absence in the organization of other work suitable for the given employee, as well as whether such work was offered to him. Dismissal due to the discovered inconsistency of the employee with the position held or the work performed due to insufficient qualifications or health conditions, in accordance with Part 2 of Art. 81 of the Labor Code, is allowed if it is impossible to transfer the employee with his consent to another job. Without compliance with this condition, dismissal under clause 3 of part 1 of the commented article cannot be recognized as legal - the employee must be offered another job or position (including a lower-paid job or a lower position).

Although the offer of another position is not mentioned in the Labor Code of the Russian Federation, this position is confirmed by the Supreme Court of the Russian Federation (clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2): “If the employee was dismissed under clause 3 of part one of Article 81 of the Code, then the employer is obliged 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 in the same organization.”

It should be especially noted that the proposed job must be suitable for the employee: offering an insufficiently qualified economist the position of an electrician if he does not have any skills in this area is simply pointless. It is also worth saying that the employee may not agree to be transferred to the proposed job. If the proposed job suits him in all respects, but the employee refuses to transfer to it, he can be safely fired - he has no obligation to agree to the transfer.

4. How is lack of qualifications determined? So, what should we proceed from when determining whether an employee’s qualifications are sufficient to perform his job duties? Firstly, the qualification requirements for various positions are established by a single Qualification Directory of positions for managers, specialists and other employees, approved by Resolution of the Ministry of Labor of Russia dated August 21, 1998 N 37 (hereinafter referred to as ECSD). Resolution of the Ministry of Labor of Russia dated 02/09/2004 N 9 approved the Procedure for applying the ECSD, clause 1 of which directly indicates that this Directory is intended to resolve issues related to the regulation of labor relations, ensuring an effective personnel management system for organizations, regardless of ownership and legal forms activities. If a position in an organization is called something else, then when considering the issue it is necessary to “link” it to similar positions established in the ECSD.

Let's consider this example from practice. The employee worked as a secretary at the company for more than one year. The director ordered him to take computer courses at his own expense and threatened that otherwise he would fire him due to a lack of qualifications. Is it really possible to fire an employee just because he does not know some computer programs, although he knows how to use a computer at a certain level, knows email programs and text editors?
Firstly, it is necessary to establish what exactly the secretarial position is called, what specific job responsibilities are written in the employee’s employment contract and how they are consistent with the name of the position. The ECSD provides for several secretarial positions.

According to the ECSD, the manager’s secretary uses a computer as follows (section “Job Responsibilities”): “Performs various operations using computer technology designed to collect, process and present information when preparing and making decisions,” and also “prints official materials at the direction of the manager necessary for its operation, or enters current information into the data bank." The requirements for a secretary-stenographer are approximately the same.

Employment contracts most often specify precisely these “framework” responsibilities, and they rarely contain clarifications such as which software products the employee will use to perform his duties. So if a manager’s secretary or stenographer needs to learn how to work with some kind of software, then it is better to learn: the collection and processing of information in our time, as a rule, is carried out in some other programs than MS Word. In addition, knowledge of any computer programs will be quite useful in possible subsequent employment.

But it is not necessary for a secretary-typist to be able to work with data banks; her task is to print documents as directed by her boss. The typist secretary can be required to learn something else if only the correspondence received by the manager is organized using a computer program; but only this “secretary” program.

This situation, of course, should be resolved differently. In accordance with Part 1 of Art. 196 of the Labor Code of the Russian Federation, the need for professional training and retraining of personnel for their own needs is determined by the employer. You don’t have to look far for an example: for some reason, the enterprise decided to switch to a new document flow registration program, and the secretary, whose job responsibilities include document registration, must, of course, learn it.

Thus, if the boss decides that the employee does not know something and should go learn, then he can issue an appropriate order or instruction and the employee is obliged to carry out the will of the management. Otherwise, refusal to study can be considered a disciplinary offense with all the ensuing consequences.

Another question is that the same article of the Labor Code of the Russian Federation provides for the employer’s obligation to provide advanced training or retraining, as well as training in other professions for its employees. Management can either improve the employee’s qualifications in the organization itself (in some cases, for this, the organization or its divisions must have appropriate licenses), or send him to some educational institution, thereby creating the opportunity for the employee to combine work with training (Part 2 and 5, Article 196 of the Labor Code of the Russian Federation).

Thus, if the employee’s qualifications were confirmed when he was hired (especially if he worked for a sufficiently long period of time in the organization), and already in the process of work it turned out that the qualifications are insufficient for the normal performance of job duties, there is no need to immediately talk about insufficient qualifications . The law provides the employer with the opportunity to improve the employee’s qualifications, and to do this at the expense of the organization, and not at the expense of the employee.

Secondly, you need to remember what constitutes incompatibility with the job due to insufficient qualifications. In systematic marriage or failure to comply with labor standards. Consequently, at the enterprise, rationing issues must be clearly regulated and not contradict the relevant standards established by the current by-laws, GOSTs, etc.

When labor standards can be established in quantitative terms, everything is simpler, but what if not? For example, when we are talking about an employee’s inadequacy for a position that requires the use of intellectual labor, there is no materialized result of labor as such. Therefore, it is difficult to talk about defective products, violations of labor standards, etc. An employee comes to the workplace on time, leaves on time, portrays a deep mental process, does not have fun on the Internet - why find fault?

In our opinion, here it is necessary to analyze the quality of execution of specific instructions of the manager; cases of violation of deadlines for completing tasks; How successfully does the employee cope with the overall amount of work; whether his level meets professional qualification requirements. If there are no complaints, much less disciplinary sanctions, it will be almost impossible to establish and justify the employee’s incompetence. Again, you need to look at how competently and clearly these tasks are set by management, whether the amount of work is evenly distributed between employees of one structural unit... Is this realistic in all cases?

5. Employee certification. Finally, we have come to the most difficult, ambiguous moment in the dismissal procedure due to a lack of qualifications. Inconsistency in qualifications must be proven by the conclusion of the certification commission created at the enterprise, based on the results of the employee’s certification. The procedure and conditions for certification are determined by the relevant regulations approved by the head of the organization, unless any other procedure is established for a particular category of employees by special regulations. For example, heads of federal state unitary enterprises are certified in accordance with the Regulations on the certification of heads of federal state unitary enterprises, approved by Decree of the Government of the Russian Federation of March 16, 2000 N 234 (SZ RF. 2000. N 13. Art. 1373). Federal civil servants - in the manner established by the Regulations on the certification of federal civil servants, approved by Decree of the President of the Russian Federation of 03/09/1996 N 353 (SZ RF. 1996. N 11. Art. 1036), etc.

It is very, very difficult to prove that an employee is unsuitable for the work assigned to him. Assessing how well an employee copes with assigned tasks is primarily related to the specifics of the work performed and the field of work.

An important role is played by the question of how and with whose participation the certification commission should be created. Firstly, in many non-governmental organizations there is simply no provision for an attestation commission “as unnecessary”, and without it, in most cases you cannot create a commission in a private organization. Secondly, it matters how qualified workers will be included in the commission, especially in a small organization; thirdly, what profession and specialty will the members of this commission have.

The fact is that if an employee dismissed on such grounds goes to court during the consideration of the case, a rather unpleasant situation for the employer may arise. Let us assume that the certification commission made a decision that the employee is unsuitable for the position held or the work performed due to insufficient qualifications. If the members of the commission themselves have lower qualifications than the dismissed employee, a reasonable question will arise in court: why did you decide that he cannot do the job if your qualifications are not enough to discuss this? Another option: for example, the economist was fired, and the electricians on the commission were fired (or vice versa - it doesn’t matter). Again, the question will follow: why did you decide that the employee cannot cope with his responsibilities if you simply do not understand anything about his work? It is also unclear who will evaluate whether the specialists who are generally in the organization in a single number - a lawyer, an accountant, a secretary, etc. - have sufficient or insufficient qualifications? Here, rather than an objective assessment of qualifications, there will be a discussion of the personality of the person being certified and complaints about him.
So, it is quite possible to challenge the decision of the certification commission on such grounds: the conclusions of this commission about the employee’s business qualities are subject to assessment in conjunction with other evidence in the case (see paragraph 31 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2). Such nuances must be taken into account when forming the certification commission.

Of particular note is the dismissal of law enforcement officers and civil servants due to the certification commission deeming them unsuitable for their positions. In addition to the Labor Code of the Russian Federation, there are also special federal laws and regulations (some of them are listed above). State bodies, as a rule, are characterized by more strict and detailed regulation of legal relations, therefore, as an example of organizing the certification process, it is interesting to consider the procedure for passing certification of employees, for example, customs authorities, and making a decision based on its results.
The possibility of dismissing a customs officer due to his recognition as unsuitable for his position is provided for in paragraphs. 10 paragraph 2 art. 48 of the Federal Law of July 21, 1997 N 114-FZ “On Service in the Customs Authorities of the Russian Federation” (as amended on June 29, 2004).

Currently, the Regulations on the certification of customs officers are in force, approved by Order of the State Customs Committee of Russia dated October 29, 2003 N 1215 (hereinafter referred to as the Regulations). We will not consider this Regulation in great detail, we will only say that by order of the relevant customs authority, a commission is created, procedures, deadlines and other important points are specified in detail. Let's look at some features. Firstly, all employees undergo such certification at least once every four years, but not more often than once every two years. There are a number of exceptions to the timing; certification can also be carried out ahead of schedule - on the initiative of the head of the customs authority in agreement with the head of the higher customs authority.

The Regulations clearly stipulate the actions of the immediate superior of the employee being certified and the personnel department of the customs authority in preparation for certification. For example, the immediate supervisor gives an objective assessment of the business and personal (unlike the Labor Code, where we are talking only about insufficient qualifications, personal qualities are not considered) qualities of the employee, his professional level, organizational abilities (also not needed by all professions) and the state of service discipline ( In the Labor Code, labor discipline is also not considered during certification - that’s a completely different story). After that, he determines the content of the characteristic and the conclusion based on it. That is, the certification commission already before the meeting has a ready-made characteristic (it is clear that it is not always objective), while its members, except for the immediate superior and employee of the personnel department, can see the certified person for the first time in their life at the certification, not to mention know the results of his work , and there is already a ready-made solution...

Now about the composition of the commission. Clause 9 of the Regulations: “The certification commission may include: first deputy head of the customs authority, deputy head of the customs authority for personnel, deputy head of the customs authority for own security, head of the legal unit, head of the personnel department (department), psychologist and other officials by decision of the head of the customs authority." That is, virtually any customs officer can determine the qualification level of any other employee - there are no reservations about the qualification level of a commission member in the Regulations! Yes, they can ask questions to the person being certified, he can answer them, but how can one confidently assess how much a person of one profession will determine the qualifications of a representative of a completely different profession based on a half-page description and half an hour of communication?

The issue is resolved by a simple majority of votes of the commission members in an open vote; if the votes are equal, the employee is recognized as appropriate for the position. That is, the opposite situation may also arise: the immediate superior is one hundred percent sure that the subordinate should be fired, but for a couple of members of the commission (its quantitative composition, by the way, is not specified, only at least two-thirds must be present) - he is the best friend. And if the chairman of the commission (for example, the first deputy head of the customs authority - that is, the second person in the organization) votes in an open vote, will everyone go against it?
Based on the results of the certification, the commission gives one of three ratings. The employee: a) corresponds to the position held; b) corresponds to the position held, subject to the implementation of the recommendations of the certification commission on his official activities; c) does not correspond to the position held. The head of the customs authority, based on the certification results, makes one of six decisions: 1) on the promotion of an employee; 2) on the inclusion of an employee in the reserve for promotion to a higher position; 3) about leaving the employee in his previous position; 4) about leaving the employee in his previous position with a warning about incomplete professional compliance; 5) about demotion or appointment to another position; 6) about dismissal. Thus, even with the most negative outcome of the certification from the point of view of the commission, the head of the customs authority has a very wide range of actions - from the fourth to the sixth option, and any other “strong-willed” decision can be made.
6. Conclusions. As can be seen from this example, the certification procedure often does not carry any special meaning, but there are many controversial, “subtle” moments even in such a strict organization. One can only guess what the situation is with this issue in most private firms.

It seems that dismissing an employee if he is not suitable for his position or work performed (especially from a private organization) in compliance with all legal norms established by law is a very complex, labor-intensive and somewhat risky matter, since almost every step of the employer can be challenged here.

Ultimately, the decision to dismiss is made, and the employer is still responsible for it (members of the certification commission cannot be held accountable for illegal dismissal), so why create so many complications? It is easier to remember once again that the inability to qualitatively perform the work stipulated by the employment contract due to a mismatch in qualifications is manifested in unsatisfactory results, systematic defects, failure to comply with labor standards, etc.

At the same time, failure to comply with labor standards, marriage, etc. in fact, can be regarded as improper performance by an employee of his labor duties, which is a disciplinary offense for which disciplinary action can be taken in accordance with Art. Art. 192 - 193 Labor Code of the Russian Federation. For repeated failure to fulfill job duties without good reason, if the employee has a disciplinary sanction, he can be dismissed under clause 5, part 1, art. 81 Labor Code of the Russian Federation.

With a certain degree of convention, we can say that such a basis for dismissing an employee at the initiative of the employer as a lack of qualifications is a “mitigated” form of dismissal for repeated violation of labor duties. The actual reasons for dismissal, as stated above, are almost the same, the consequences for both the employer and the employee are the same. An entry in the work book about dismissal due to non-compliance is not much more prestigious than about dismissal on “guilty” grounds. So humanity has nothing to do with it.

In our opinion, in case of non-compliance with labor standards and other sins of an employee, it is necessary to impose a disciplinary sanction on him, and in the event of a relapse, the issue should be posed bluntly: either “on his own” or “according to the article”. This is much simpler and “painless” for the employer (less risk of getting into trouble: since the procedure for dismissal due to a lack of qualifications is much more complicated, it will be much easier for the employee to recover than if fired for violating labor discipline), and for the employee it is better to receive the opportunity to choose rather than risk being left with an eternal stain on your business reputation.

After all, the court does not have the right to change the grounds for dismissal, but can only decide whether to reinstate the employee or not. In paragraph 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 22, 1992 N 16, it is stated: “If a claim for reinstatement at work is refused to a person who was justifiably dismissed due to inadequacy of the position held or the work performed, for violation of labor discipline or other guilty actions, the court does not has the right to change the wording of the reason for dismissal to dismissal at the initiative of the employee."

The only caveat is that insufficient qualifications, under certain conditions, can be regarded as a valid reason for poor performance of job duties, but here the employee will have to prove this point, not the employer. It is unlikely that in an explanation for committing a disciplinary offense, an employee will indicate his own incompetence as the reason for its commission. If he does, this will make it easier to prove the validity of his dismissal due to a lack of qualifications.

If management really wants to show humanism when getting rid of a bad employee or not to escalate the situation, it is better to agree with the employee on dismissal in accordance with Art. 78 of the Labor Code of the Russian Federation by agreement of the parties with payment of the agreed compensation.

So, before dismissing an employee, an organization will often have to spend a lot of effort and time, do a huge and, one might say, jewel-like job, in order to create a certification system that will eliminate any possibility of the dismissed employee’s subsequent reinstatement at work with all the ensuing consequences. Or it's just not worth trying...

Read also

• A trip to the employment service, or Helping those fired

  The state provides certain social guarantees to citizens who have lost their jobs (for example, pays unemployment benefits, provides assistance in finding a job). However, in order to receive these guarantees, dismissed employees must contact the employment service and register as unemployed. Today we will talk about how to do this and what the employer’s role is in ensuring the employment of laid-off workers.

Articles in this section

• Dismissal of an employee who has not completed the probationary period

  Dismissing an employee during a probationary period in Russian realities is a complex and costly process. At first glance, Article 70 of the Labor Code seems to be a simple and logical way out of this “trap.” But it's not that simple. Article 70...

• Staff reduction

  When planning a staff reduction, you should remember that not all employees can be dismissed on this basis, and those being laid off should be properly notified and offered available vacant positions.

• Dismissal of an employee. How to part as friends

  Parting with employees gracefully and with dignity so that only good things remain in memory and relationships remain friendly is a real art that any employer can master. To do this, it is enough: first, to want; the second is to study and choose...

• Fixed-term employment contract. Dismissal of a maternity leaver

  The dismissal of a maternity worker working under a fixed-term employment contract has a number of features, failure to comply with which may lead the employer to legal proceedings.

• Crisis: It's Time to Master the Art of Dismissal

  Leading specialists from top PR agencies in Russia unanimously insist that in our country there are problems with the ethics of dismissal. Large Internet portals of “black lists of employers” are emerging. Offended and angry fired employees write negative reviews in a fit of anger. And the less carefully they are fired, the more angry their comments about the company become. It is difficult to explain why, with the widespread desire of companies to create an image of a “dream employer”, a key aspect of the company’s personnel policy is often overlooked. Dismissal is a vulnerable link in personnel management. Today, when a crisis is brewing in the country, mass layoffs will certainly follow. There is even a concept of “public shock of layoffs.”

• Labor violations during work and upon dismissal

  The most common violations of labor laws relate to wages and the procedure for dismissing an employee. Thus, it is illegal to pay wages once a month.

• Notice of staff reduction

  Typically, management tries to reduce staff by terminating the contract “by agreement of the parties.” If the employee is not satisfied with this method, he has to be fired due to a reduction in staff or numbers. And in this case, you cannot do without notice of reduction.

• We reinstate illegally fired workers

  If the court finds the dismissal illegal, the decision to reinstate the illegally dismissed employee is subject to immediate execution. During forced absence, the employee can count on average earnings and compensation for moral damage. ...

• Farewell with an eye to the future

  All HR managers sooner or later face the need to fire employees. And the company’s reputation depends on how successfully and correctly the separation process goes. Let's reveal a few secrets. The article is published as part of the collaboration hrmaximum…

• Substitution of grounds for dismissal became the reason for reinstatement

  After an unsatisfactory result in passing the knowledge test, the employee’s permit to work with electrical equipment was not extended. The employer considered that such admission is essentially a special right and its deprivation allows the termination of the employment contract with the employee.

• Dismissal from vacation

  To formalize the voluntary dismissal of an employee who is on vacation, you must make sure that this employee really wanted to end the employment relationship.

• Termination of an employment contract due to an immoral act

  It is possible to fire only employees of a certain category for committing an immoral offense, namely those performing educational functions. But at the same time, for the legality of dismissal on this basis, a number of conditions must additionally be met.

• We formalize the dismissal of an employee who fails the test

  Everyone knows that when concluding an employment contract, by agreement of the parties, it may contain a provision for testing the employee in order to verify his compliance with the assigned work. But few people know how to properly fire someone who can’t cope with the job and is not suitable for the employer. By making mistakes when terminating an employment relationship with an employee who has not passed the test, the employer risks facing the dismissed person in court, and it is possible that the judges will side with him. Today we will tell you how to formalize your dismissal in this case.

• Dismissal based on test results

  The article is devoted to the consideration of current aspects related to the design features of the testing regime when applying for a job. Issues related to the conditions of appointment, duration, and passing the test are discussed in detail, the procedure for terminating an employment contract with an employee who fails the test is described in detail, and samples of necessary documents on the topic are provided.

• How to correctly formalize suspension from work and dismissal in case of theft

  The suspension and subsequent dismissal of an employee who has committed theft at the place of work - unfortunately, in the practice of personnel departments, a similar situation occurs quite often. How to correctly prepare the accompanying documentation and take into account all the nuances of the legislation? The algorithm presented in the article will help HR officers avoid mistakes, and therefore will minimize the risk of negative consequences for the employer.

• Long absence: difficulties of dismissal

  Almost every employer, sooner or later, is faced with a situation where one of the employees suddenly, without any warning, does not go to work. This is a real headache for the HR department: stubbornly wait for the missing employee to return to work or look for a new one in his place, fire the absent employee for absenteeism, or wait more than a year and recognize him as missing? And this is not a complete list of questions that arise before a personnel officer in such a situation. Only strict compliance with all the requirements of labor legislation allows us to solve the problem competently and with the least material costs.

• Reinstatement or cancellation of the dismissal order?

  Recently, the attitude towards the issue related to the immediate execution of a court decision to reinstate an employee at work has changed dramatically. What these innovations consist of is in the article.

• How can the General Director find a valid reason for dismissing the chief accountant?

  To find the reason for dismissing your chief accountant, you need to thoroughly study the current labor, accounting and tax laws. If your search for suitable legal norms is crowned with success, be sure that the chief accountant will not want to spoil his work record and resign under Art. 80 of the Labor Code of the Russian Federation, that is, at your own request.

• Protection of labor rights: Contacting the prosecutor's office

  One of the ways to protect labor rights is to contact the prosecutor's office. The Prosecutor's Office is a unified federal centralized system of bodies that, on behalf of the Russian Federation, oversee compliance with the Constitution of the Russian Federation and the implementation of laws in force on the territory of the Russian Federation.

• Termination of an employment contract due to a single gross violation of labor duties

  Disciplinary action in the form of dismissal may be applied in the event of a single gross violation of labor duties. The list of gross violations that are grounds for dismissal is given in clause 6, part 1, art. 81 Labor Code of the Russian Federation. This list, within the meaning of the law, is exhaustive and is not subject to broad interpretation.

• Drunk employee at work - how to fire?

  In this article, we will tell employers in detail about all the stages of dismissal for drunkenness at work and indicate how the employer himself can avoid falling into the category of offenders.

• Working conditions and procedure for dismissal of minors

  The psychophysiological characteristics of the body of minors and the need for full-fledged education often require special working conditions and additional guarantees, which have been developed and enshrined in current legislation. Let's consider what restrictions are provided by the Labor Code on the working conditions of minors, whether they can be directed...

• Dismissal of personnel: how to make it so that it is not excruciatingly painful

  Paradoxes of the HR profession The dualism of the current situation lies precisely in the fact that the HR manager heading the personnel service, on the one hand, will have to demonstrate in the current conditions the masterly performance of his professional duties in reducing personnel,...

• How much does dismissal cost: compensation payments for staff reductions

  When reducing the number or staff of employees, it is important not only to strictly follow the dismissal procedure, you also need to accurately determine the monetary payments due to the employee*. This is not always easy to do. The fact is that the requirements for such payments are contained in various articles of the Labor Code. Let's see what amounts we are talking about in this case, how to calculate them correctly, and whether taxes need to be paid on them.

  You can often hear the opinion that dismissal in accordance with clause 2, part 1, art. 81 of the Labor Code of the Russian Federation primarily concerns persons who have reached retirement age. However, this is not consistent with the requirement of Part 1 of Art. 179 of the Labor Code of the Russian Federation on the preferential right to retain at work persons with higher labor productivity and qualifications. Reaching retirement age is not a basis for priority dismissal of such persons. They can only be dismissed in accordance with the general rules.

• Recovery of material damage upon dismissal of an employee

  Recovery of material damage upon dismissal of an employee - Explanation of the possibility of recovery of damages from a resigned/resigning employee.

• Compensation payments upon dismissal of women with children and pregnant women

  Social protection authorities pay monthly compensation to those dismissed due to liquidation and unemployed mothers of children under three years of age in the same amount as during parental leave until the child reaches 3...

• Dismissal: is it possible for both sides to win?

  Dismissal of employees for any reason is not an accident, but a natural part of the business life of an enterprise. This is how he should be treated. And in this process there are two interconnected sides - the ability to quit yourself and the ability to fire others. This article will be of interest to those who own and manage a business, who, due to their line of work, fire others, and those who want to learn how not to find themselves in the situation of being fired without their own desire.

• Salary in an envelope and dismissal

  Now my company is laying off the position I occupy, and management does not want to pay compensation (as far as I know, 5 salaries). The situation is complicated by the fact that 50% of my salary is “gray”. What advice do you have on how to behave better? Do I need to go to court? The position I occupy is top. How might going to trial affect my career?

• How to avoid being deceived and fired?

  Many workers are ready to put up with arbitrariness on the part of employers, usually due to the fact that they do not know their rights. And there are enough of them to receive legal compensation upon dismissal, and to compensate for damages caused by moral harm, and so on.

• What to do if the company is going to be liquidated?

  Management's intention to begin liquidation of the company does not mean that it lacks responsibilities to respect the labor rights of employees, including compliance with the dismissal procedure and payment of compensation provided for by law.

• Is it possible to quit a job without paying any amounts under the training agreement?

  In the event of dismissal without good reason before the expiration of the period stipulated by the agreement on training at the expense of the employer, the employee is obliged to reimburse the costs incurred by the company for his education, calculated in proportion to the time actually not worked after completion of training.

• Are you being forced to resign voluntarily?

  The very formulation of the question is already suggestive: if the dismissal should occur AT YOUR OWN WISH, then what does the boss have to do with this? The fact of the matter is that from the point of view of the law - none, but in reality it’s the other way around.

• I'm being fired, what should I do? Practical recommendations from a lawyer

  First, the more serious the organization, the more carefully the dismissal is prepared.

Inconsistency with the position held is one of the rare reasons for dismissal or removal of an employee from official duties.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

Sometimes an employer simply transfers an employee to a different position with different responsibilities. Especially if we are talking about a responsible employee who must fulfill his obligations properly.

If the actions do not fit certain parameters, then it is necessary to either fire the employee or transfer him. And this needs to be done correctly.

Otherwise, a person will be able to receive not only the funds due to him by law, but also funds for compensation for moral damage. Therefore, you need to familiarize yourself in advance with the legislation and the possibility of dismissal for non-compliance with the position.

The legislative framework

The following legal acts regulate the issue:

• Article 77 of the Labor Code of Russia, this lists the basic rules for dismissal and grounds for ending cooperation;
• Article 78 of the Labor Code of Russia, here it is possible to terminate contractual relations by agreement of the parties;
• Art. 79 of the Labor Code of Russia, here are the features of the termination of all contractual relations;
• Article 80 of the Labor Code of Russia, here the employee’s initiative to terminate the labor relationship is presented;
• Art. 81 of the Labor Code of Russia, all grounds for termination of labor relations are stipulated here.

Dismissal for inadequacy of the position held

Dismissal for unsuitability for the position held in 2019 is not a common reason for dismissal. But if an employee does not fulfill his obligations correctly, then the employer may come to this action.

Insufficient qualifications

Qualification is understood as a set of skills and knowledge of an employee that are necessary to perform certain duties. Includes length of service, education, work experience and level of training.

To understand qualifications, it is worth conducting certification of specialists, during which the business qualities and practical skills are identified.

For a specific industry, this practice is a mandatory procedure that has a periodicity. For example, for librarians or teachers, such a moment is mandatory. At the initiative of management, other employees may also undergo this process. This can be in the form of tests, written surveys.

As a result of such certification, it is possible to identify inadequacy for the position, the right to an increase in wages, or inadequacy for the position.

Procedure

There is a certain procedure for identifying such a deficiency.

The employer needs to know how to carry out such actions correctly, otherwise he may be subject to inspection by the labor inspectorate.

Carrying out certification

Certification can be in the form of tests or written surveys. The committee may include management, superiors, and external superiors.

An inspection can be carried out only after the employee has read reviews of his work.

Certification is carried out only in the presence of the employee himself. If he falls ill, the certification is postponed.

The certification process often consists of several stages:

• review of documentation;
• employee speech;
• making a decision.

In the conclusion, the compliance or non-compliance with the position and recommendations are written.

Required documents

To apply you must provide:

• employee's personal record book;
• order;
• employment history;
• personal card.

Order

Dismissal under an article for non-compliance with the position held is possible only if there is a commission conclusion on this.

All information of this type is entered into, and the employee is introduced to it. He can appeal internally and again answer all questions regarding the position. This practice is often present, but as a rule, dismissal still occurs.

The order specifies a clause on reshuffling personnel, changing wages, and other decisions of the employer. It also specifies the measures that are taken in relation to this employee.

Such a document is necessary for a dispute in a judicial institution.

Entry in the work book

Dismissal of this type can be in two ways - at your own request and under an article of the Labor Code. As practice shows, most often the application is written, since spoiling the work book is not beneficial for either the employer or the employee. This allows you to avoid many difficulties for future employment.

There are no records in the work book about failed certification. This allows for minimal documentation for the employer.

If the dismissal occurs voluntarily, then this is a standard process. If this is according to the article, then you need:

• employee notification;
• preparation of an order with signature of agreement with the employee;
• in employment documents;
• issuance of certificate 2-NDFL;
• in two weeks.

An entry reflecting the event is written in the work book.

Deadlines

The period is not regulated by current legislation. Notice of dismissal must be two weeks prior to the event.

By agreement of the parties, dismissal may be made earlier than the specified period.

Payments

Here you must fulfill all the standard requirements for issuing a work book and making payments.

The employee is due:

• wages for the period worked;
• cash ;
• payment for sick leave, if available.

Employer's liability

The employer faces liability if the following categories of citizens are dismissed:

• who are on maternity leave;
• women with a child under three years of age;
• single mothers raising a child under 14 years of age.

In this case, the employer falls under the article where it pays a fine and compensation to the dismissed person.

Is it possible to challenge the decision?

You can challenge the decision with documentation in hand. To do this, the former employee must contact the labor inspectorate or court, write a statement and file a claim, where he will show the infringement of his rights.

If the documentation is sufficient to satisfy the claim, the employer will have to reinstate the employee or pay compensation.

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

Employee qualification

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

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

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

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

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

We carry out certification

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

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

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

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

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

Certification results

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

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

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

Limitations during certification

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

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

Dismissal procedure

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

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

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

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

What do you need to know?

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

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

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

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

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

A complete and exhaustive list of grounds for this is given in Art. 81 Labor Code of the Russian Federation. Clause 3 of Part 1 of this article cites as one of the grounds such a reason as the employee’s inadequacy for the position he occupies.

As in other cases at the initiative of the employer, the procedure for terminating a contract with an employee for such a reason must be carried out in compliance with all legal rules and requirements. It is worth considering the specifics of dismissal for non-compliance with the position held and the actions required for this.

Qualification is understood as a set of skills or professional knowledge of an employee that allows him to perform his job functions efficiently and fully. It may include requirements for parameters such as:

• education;
• level of professional training;
• experience;
• necessary knowledge.

It depends on the qualifications of the employee:

• specific work that can be entrusted to him;
• wage level;
• list of duties and job functions.

When dismissing for non-compliance with the position held, the first criterion that the employer needs to prove is precisely the absence or insufficient level of qualifications of the subordinate.

For this we use:

1. A unified qualification directory of positions for managers, specialists and other employees, which defines general qualification requirements for various positions.
2. Labor standards established at the enterprise and corresponding to legislative acts.
3. General analysis of the employee’s work, completion of the work assigned to him efficiently and on time.

However, all these methods can only be used to evaluate the employee’s work by the employer; they cannot be grounds for dismissal.

To do this it is necessary to carry out employee certification procedure, during which their qualifications and business qualities, practical skills and knowledge are assessed.

For certain categories of workers, certification is a mandatory and periodic procedure (for example, for teachers or librarians). For others, it may be initiated by management. The specific ways it is carried out and the methods used depend on which groups of workers are being assessed. For example, these could be tests, written questions, practical tasks, or conversations with an employee on professional topics.

As a result of certification it can be established:

• suitability for the position or work performed;
• the right to qualify for or career advancement;
• inconsistency with the position.

The results of the inspection are recorded in a special document - an attestation sheet, which the employee can familiarize himself with after completing the procedure.

Attestation sheet: concept and rules of preparation

The form and procedure for drawing up the certification sheet can be determined both by legislative acts of the state level and by local documents of the enterprise.

For certain categories of employees (for example, those who work in hazardous conditions), a separate form of this document has been approved.

The certification sheet contains a conclusion about the employee’s qualifications and indicates whether he is suitable for his position. The document is filled out and signed by the certification commission and submitted to the head of the company for him to make a further decision regarding the fate of the employee.

In addition to the certification sheet, the decision made by the commission is also reflected in the certification protocol and the employee’s personal card. He must be familiarized with each entry made against signature.

Categories of employees who can and cannot be dismissed for inadequacy of the position

Dismissal of a subordinate on this basis is a right, not an obligation of the employer. He may dismiss any employee subject to the following conditions:

• a certification procedure was carried out, which confirmed the discrepancy between his qualifications;
• he cannot be transferred to another position suitable for him or he has refused it;
• he is not on vacation or sick leave;
• he does not belong to the category of socially protected employees.

• and fathers who are raising a child under 14 years of age or a disabled minor;
• women with children under three years of age;
• a parent or other legal representative of a child who is the sole breadwinner in a family with a minor or three children (provided that one of them is less than three years old).

For some categories of employees, regular certification cannot even be carried out, so it will not be possible to fire them. These include:

• persons who have worked in a position for less than a year;
• women with children under one year of age.

When dismissing an employee who is a member of a trade union, also the opinion of the trade union body must be taken into account. Termination with a minor subordinate is possible only with permission from the relevant authorities.

The procedure for dismissal on this basis

The procedure for dismissal for non-compliance with the position held should be considered in the form of a certain algorithm of actions:

1. Carrying out certification. The procedure for its implementation is determined by the Certification Regulations adopted at the enterprise and is mandatory for legal dismissal.
2. Proposal about . If the company has available vacancies for which the employee is suitable according to his characteristics, the employer must offer him a transfer. If there are no such vacancies or in case of refusal, the dismissal procedure can begin. It is best to record a refusal to transfer in writing (in the form of an act).
3. Preparation of documents for dismissal. At this stage, a corresponding document is issued, with which the employee must be familiarized with signature. Also, a record of dismissal is entered into his personal card. It is worth considering that you can dismiss an employee only within two months from the date of certification.
4. Filling. The entry that is made in this document may look like this: “Dismissed due to inadequacy of the position held due to insufficient qualifications confirmed by certification results, paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.”
5. Carrying out calculations. No additional payments such as severance pay are provided in this case (unless otherwise specified in the internal documentation of the enterprise).

The employee must receive:

• wages for hours worked;

According to the general rules, entry into the work book and payment of funds is made on the employee’s last day of work, that is, on the day of dismissal.

How to challenge an employer's decision?

If the procedure is carried out incorrectly or the employee disagrees with the dismissal, he can challenge it in court. In this case, significant grounds for declaring a decision illegal may be:

• lack of certification procedure;
• incorrect certification (for example, in case of non-compliance with the rules specified in the local documents of the enterprise);
• dismissal of socially protected workers;
• the presence in the company of positions suitable for the employee that were not offered to him.

Judicial practice shows that in the event of a clear violation of the dismissal procedure, the claims of former employees are most often satisfied.

In this case, the employer may be required to pay the plaintiff lost wages and moral damages, as well as change the entry in the employment record or even reinstate him at work.

To dismiss due to inadequacy of the position, the employer must comply with many different rules provided for by both external and internal legislation. In some cases, employees may be offered an alternative option -. This will allow the manager to solve many difficulties associated with the registration of the procedure, and the employee to avoid a negative entry in the work book.