Can they be fired for inadequacy of the position. Judicial practice: examples

The provisions of labor legislation allow termination of employment on various grounds, and the employee does not always agree to leave voluntarily. Lack of the required competence is a serious obstacle to performing the required work in the proper volume and quality. The employer's dissatisfaction is growing, situations arise that negatively affect the company's activities and its results.

In this case, the employer has legal grounds on which he has the right to dismiss his employee.

Dismissal for non-compliance is possible when it becomes obvious to the employer that the employee does not have the necessary skills and is not able to perform the work required of him at the required level. A one-time identification of a case of poor-quality work cannot serve as a basis for terminating an employment relationship. It is necessary to make sure that neither the time nor the training passed (if an employee is hired without experience) has been able to improve the quality of job performance. The most common reasons for the intention to leave an employee is a lack of education.

If in a situation with dismissal of their own free will or by agreement of the parties, the question of finding a justification is not worth it, then when dismissing due to inadequacy of the position held, the issue is more complicated. You will have to prove that the employer has a legal basis for such a conclusion.

Article of the Labor Code of the Russian Federation No. 81 in paragraph 3 provides clarifications on this issue. All actions related to the dismissal procedure must be performed in strict compliance with the law.

In order to identify the insufficient level of qualifications, they are guided by the Qualification Reference Book of Positions, which was approved by the Ministry of Labor of the Russian Federation in 1998. By Decree No. 9 of 02/09/2004, the Ministry of Labor of the Russian Federation explains that this guide (EKSD) is designed to regulate labor relations and ensure the effectiveness of personnel management.

Grounds for termination of the contract

According to clause 3 of article 81 of the Labor Code of the Russian Federation, the employer has 2 reasons for dismissal for non-compliance unilaterally:

1. Features of the state of health according to the medical report;
2. Recognition of lack of qualifications after certification.

Depending on the reason, the process of parting with an employee and the calculation of the last payments differ.

Employer's actions

To eliminate the unpleasant consequences associated with the dismissal of a dissenting employee, you must adhere to the letter of the law.

Lack of sufficient qualifications cannot be attributed to the fault of the employee. First of all, sufficient conditions must be created so that the duties laid down by the instructions are performed at the proper level.

Another limiting factor is the ban on the dismissal of a number of privileged categories.

When dismissal is impossible

The Labor Code (Article 261, Part 1) introduces a ban on dismissal by the employer of the following categories of citizens:

1. Pregnant women.
2. Persons on sick leave.
3. During regular vacation or childcare.
4. Single mothers with care for children under 14 years of age.
5. Minor Employees.

Coordination with the trade union

Not all organizations have trade unions. However, if it is planned to terminate the contract with a member of the trade union, the procedure, in accordance with part 2 of article 82 of the Labor Code, must be coordinated with the trade union. For dismissal, you will have to take into account the motivated opinion of the elected body. The approval procedure is governed by the provisions of Article 373 of the Labor Code of the Russian Federation:

1. The employer initiating the dismissal notifies the union by transmitting a copy of the draft dismissal order.
2. Within seven days, the trade union must decide on how well-founded the employer's decision is.
3. The employer receives a written response from the union.
4. In case of disagreement within 3 days between the trade union and the employer, an additional consultation is organized with the execution of a protocol on reaching a common decision.
5. If a decision is not reached, after 10 days, the employer has the right to make a decision on dismissal, which can later be appealed by the labor inspectorate.
6. Having received a complaint, a representative of the state inspection must conduct an inspection and decide on the legality of the dismissal.
7. In the event of violations, an order is issued to reinstate the dismissed person with payment of days of forced absence from work.
8. The employer retains the right to appeal the order in court.

Suggestion of another position

One of the options for the employer is to offer another position. This way out is suitable if the employee is considered valuable, but is not suitable for the position held. In addition, the contract must contain a clause indicating the possibility of transfer.

Dismissal stages

The offer of another job is practiced only if the administration has a similar vacancy, but more often the question is about dismissal. In this case, certification is required.

Preparation for certification

• The administration issues an order with the appointment of certification of the person concerned. The text should contain dates on the timing of certification.
• The employee is given a written notice of the certification scheduled on the basis of the order.
• At least 2 months must elapse between the receipt of the notification and the certification itself.

In the process of preparing for certification, it is necessary to be guided by the provisions of the EKSD (reference book of positions) as applied to the position of interest. When appointing the attestation commission, the chairman of the trade union should act as chairman, if such a body operates at the enterprise.

Conducting certification

Parting with an employee without consequences will depend on how competently the certification will be carried out.

At the appointed time, the certification commission must conduct certification in accordance with internal regulations, regulations approved by the organization. If we are talking about certification of the head of a federal state-owned enterprise, they adhere to the Regulations on the conduct of certification, approved in Government Decree No. 234 in 2000.

The task of certification upon dismissal is to reveal the discrepancy between the employee and the job, on the specifics of which the assessment will depend.

Special attention is paid to the members of the commission being created. The objectivity and the resulting opinion will depend on the qualification level of the persons included in it, as well as professional compliance, because if a complaint is considered in the labor inspectorate, the question will arise on what basis the members of the commission with insufficient qualifications were able to make a conclusion about the discrepancy. In judicial practice, there may be cases when the conclusion about the lack of qualifications may be questioned. This situation is quite likely if the members of the attestation commission have a lower qualification level, or are not specialists at all in the field of activity of the dismissed employee.

When carrying out certification, you must adhere to some rules:

1. Attestation cannot be carried out in the absence of an employee.
2. All documents related to the process should be assessed.
3. The employee and his supervisor must be heard by the members of the commission.
4. Based on the results of the check, a verdict is issued, supported by documents and facts.

The following can serve as verdicts:

• inconsistency with the position held;
• partial compliance with the condition of compliance with the recommendations of the commission;
• full compliance.

At the end of the certification, its results are formalized in an appropriate manner.

Registration of attestation results

The supporting document for attestation is a special attestation sheet, whose content and format must correspond to the Regulations or legislative acts adopted in the organization.

Knowledge testing is carried out with the completion of two acts - one for a personal file, the other is given to the person being tested. After certification, a separate act is drawn up, in which the person being checked either agrees with the results obtained or does not agree.

Based on the results of the check, a successful employee is issued a certificate attesting to the successful completion of certification. All documents received during the procedure must be signed by the chairman of the commission and the seal of the enterprise.

Solutions

If the attestation result reveals non-compliance, the employee may be asked to:

• stay in your position, adjusting your work in accordance with the instructions of the commission;
• dismissal;
• transfer to another job.

If the company has another vacancy that would be more consistent with the knowledge, experience and abilities of the person being tested, the employer can offer him a transfer, including a lower, less paid position.

In case of refusal to transfer, the administration has the right to dismiss the employee. An order is issued ordering the dismissal of the employee, who must be notified of this without fail.

This order is submitted to the accountant for making settlements for the employee and making final payments. Employment record book, final payment are issued on the last day of work.

The inconsistency of the employee with the position held poses a managerial task for the company's management. In one case, it is enough to send an employee to advanced training courses, in the other - to transfer to a less responsible position. But if the best solution is dismissal, the procedure should be carried out according to all the rules, otherwise problems in court are inevitable.

Inconsistency with the position held: the basics of the Labor Code of the Russian Federation

Inconsistency in the position held (NPD) can serve as a reason for the termination of the contract at the request of the company's management. Labor Code in paragraph 3 of part 1 of Art. 81, providing such an opportunity to the employer, stipulates an important nuance - non-compliance should be based on insufficient qualifications, which, in turn, must be proven by the results of the certification carried out.

If you follow the letter of the law, then it is necessary to clearly define the concept of sufficient qualifications in each workplace. And this must be done in advance, throughout the state, and not urgently, specially adjusting the internal regulatory framework for the dismissal of the offending employee. It is impossible to fire an employee for NZD without receiving confirmation of his low professional qualities in the prescribed manner.

Employee compliance standards for the position should be determined in advance, and not on the day of dismissal

If the employee turns out to be the culprit of a production problem or the release of defective products, that is, he deserves to be fired, another article of the Labor Code should apply.

Dismissal for NZD provides for the absence of the employee's conscious guilt; this is a tough step in optimizing work.

Having determined the criteria, it is also necessary to prescribe in the internal documents the procedure for verifying the employee's compliance with his position, that is, certification. The approach to the problem must comply with the law: the objectivity of the decision and the sufficient competence of the composition of the appointed commission.

Having established the fact of NZD, it is necessary to comply with all preliminary procedures, as well as the requirements for documentary registration. It should also not be forgotten that some categories of workers are protected by law from dismissal on this basis.

Who shouldn't be fired for non-compliance

• Pregnant women (part 1 of article 261 of the Labor Code of the Russian Federation).
• Young specialists (clause 3 of the Decree of the President of the Russian Federation 01.02.2005 No. 110).
• Minors (Article 269 of the Labor Code of the Russian Federation).
• Employees during the period of temporary disability or being on vacation (part 6 of article 81 of the Labor Code of the Russian Federation).

Pregnant women cannot be fired for inadequacy

It should also be borne in mind that the certification results have a time limit. The manager can make a managerial decision (including dismissal) no later than two months after the date of its implementation.

The presence of a trade union organization imposes an additional condition.

The dismissal of a trade union member must be preceded by the receipt of a reasoned opinion from the elected body of the local committee, received no more than a month before the termination of the employment contract.

Section 81 also prohibits dismissal unless the employee has been offered other positions. Therefore, it is better to take care of the written registration of the refusal of the dismissed from the jobs offered to him in advance.

Only by fulfilling all the requirements, you can be sure that the court, considering the application of the person who does not agree with the dismissal, will support the position of the employer. A mistake or negligence at any stage can lead to the forced reinstatement of an unskilled worker in his former place and the payment of monetary compensation.

How to prove that an employee does not meet professional standards

In order to obtain evidence of NRD, it is necessary to determine the minimum qualification requirements for the occupant of the relevant position, and to conduct an employee certification confirming his non-compliance with them.

Qualification Requirements

At first glance, the concept of qualification, which is simple, does not have an unambiguous definition in the legislation. However, it is present in many important articles of the Labor Code (57, 132, 143, 21, etc.)

In labor legislation, qualifications are understood as the level of preparedness, skill, suitability of an employee to perform work in a certain position or profession, determined by rank, class, rank and other categories. There is also an official document - the Unified qualification reference book of positions of managers, specialists and other employees (EKSD), which is mandatory for use by enterprises of all forms of ownership.

Requirements for the skills of a candidate for a specific position must necessarily be spelled out in the employment contract or in the job description, which is an integral annex to it. Confirmation of the compliance of the newly hired employee with the requirements of the position are usually: specialized education, experience, results achieved (awards, diplomas, positive reviews, production success, etc.). It is important to remember the uniformity of requirements for similar positions.

You should also not forget about the existing regulatory documents governing the assessment of work: norms, GOSTs, etc. You cannot fire an employee for non-compliance with standards that are too high (in comparison with those established by law).

As eligibility requirements for the position may change, employees should be prepared for professional development and additional training.

Eligibility requirements are subject to change to accommodate technology changes or company policy changes. Therefore, it is not unusual that an experienced specialist who does not want to master the latest production line finds himself in the NRD status. Moreover, in the contract or job description, there is usually an obligation for the employee to improve his qualifications, so this situation is largely his fault. However, the TC obliges to give another chance to such an employee, to allow him to undergo the necessary training, including at the expense of the company.

NRD not related to the competence of the employee

Requirements for the position held must be reasonable and verifiable. But in some cases they are not related to the experience or knowledge of the employee. Some positions include requirements for a person's personal qualities, as well as his reputation. For example, an immoral act can cause a teacher's NDD in a school. A high-level manager may be required to have leadership qualities, resistance to stress, or politeness. Health conditions, including increased demands for work in extreme conditions, are often necessary for the profession. And in some cases, the visual attractiveness or physical parameters of the employee also matter.

It is possible to speak about NZD only if the requirements for employees are spelled out in the company's internal documents or in legislation. Otherwise, it is better to use other articles of the Labor Code to terminate the contract.

Attestation

For the validity of the statement about NZD, the decision of the head is not enough, unless, of course, an emergency has occurred that has objective evidence: a fake diploma, negative facts revealed, etc. Low qualifications can only be confirmed by specialists in a specific subject area as part of the certification process.

What is certification

Certification is an assessment of the professional suitability of a company employee to work in the current situation. For some categories of employees and positions, the obligation and frequency of certification is determined by law. Basically, this refers to the most critical areas (energy, railways, shipping, hazardous production, aviation, etc.), or requiring particularly strict adherence to technology (radiation, toxic substances and others). For the rest, the employer himself has the right to establish the procedure for carrying out this procedure.

Certification can be planned (when an employee has worked out a certain length of service or before being appointed to a new position) or unscheduled (general or for a specific employee), for example, during reorganization or transfer. All organizational issues related to the procedure must be stipulated in the company's internal documents: employment contracts, orders and a regulation approved by the management.

Attestation Regulation (PA)

Unless otherwise provided by law or the charter, the PA is approved by the head (director) of the company. If the company does not have such a document, then it is very difficult to dismiss an employee due to low qualifications due to low qualifications.

The PA should specify the following questions:

Without fail, all employees subject to this procedure are familiarized with the approved regulation under the signature.

Additional documents

It is advisable to include clauses on the mandatory participation in the certification procedure in other documents regulating the work of employees. Internal labor regulations, regulations on divisions, job descriptions must contain the relevant requirements, labor contracts and contracts - the obligations of employees.

Also, in order to avoid problems in the courtroom, it is necessary to monitor the timely execution of all documents provided for by the attestation regulation: orders for holding and approving results, minutes of meetings, schedules, and so on.

The procedure for dismissal and examples of paperwork

If the company has met all the necessary conditions for determining the employee's inadequacy for the position, the dismissal process proceeds as follows:

1. In the manner approved by the PA, certification is assigned. An appropriate commission is created (if necessary), a preliminary package of documents is collected. The person being certified shall be notified under the signature of the time and place of the meeting. Attestation begins with an order
2. Certification is carried out according to the PA.
3. If the employee does not come to the meeting, it is necessary to act in accordance with the PA, that is, either postpone the meeting, making sure that the reason is considered valid, or record the fact of absence without good reason and conduct an absentee attestation.
4. The results of certification are drawn up. The minutes of the meeting of the commission are drawn up, the results are approved by the order of the company. The inconsistency of the position must be confirmed by reference to the qualification requirements, documents confirming the inadequacy of the person being certified. The certification results are recorded in the protocol
5. The employee, under signature, gets acquainted with the results of his certification. The terms of notification are established by the regulation, but, as a rule, do not exceed five days from the moment of signing the protocol.
6. The employee is offered a choice of positions suitable for his (lower) qualifications. If the employee agrees, a transfer order is prepared in accordance with Art. 72.1 of the Labor Code of the Russian Federation.
7. If the employee refuses, or there are no such positions in the company, a decision is made to dismiss for NZD. The employee's refusal from translation options must also be written, for example, in the form of an inscription on the offer itself.
8. In accordance with the established procedure, a corresponding order is prepared and signed. Document form - T-8.
   The order is drawn up in the form T-8
9. The employee gets acquainted with the order under the signature.
10. The calculation is in progress.
11. The necessary entries are entered into the work book.
12. The employee signs the work book and receives it in his hands.
13. Interested authorities (military enlistment office, bailiff service and others) are notified of the dismissal.

Labor book: how to fill out + sample

An entry in the work book is made after the signing of the order. The serial number of the entry, the date of dismissal (from the order) is indicated. In the main part, an entry is made about the reason for the dismissal, briefly repeating the wording from the order (clause 5.3 of the Instruction of the Ministry of Labor of Russia dated October 10, 2003 No. 69):

“Dismissed due to inconsistency in the position held due to insufficient qualifications, confirmed by the results of certification, and refusal to transfer to another position, paragraph 3 of Art. 81 of the Labor Code of the Russian Federation "

List, terms and examples of payment calculations

The termination calculation includes the following payments:

• Accrued but not paid wages for early hours worked and other debts to the employee.
• Payment for the worked part of the current month based on the average salary for the last three months. If the salary did not change and was 50 thousand rubles, then the following amount is supposed for the worked 10 working days (w.d.): ((50,000 + 50,000 + 50,000) / 3) * (10/20) = 25,000 rubles, where 20 is the number of w.d. this month.
• Severance pay and other payments stipulated by the collective agreement and contract.
• Compensation for unused vacation. Average daily earnings are calculated for the last 12 months (Government Decree No. 922 of 24.12.2007) and multiplied by the number of vacation days prescribed, but not selected.
  With a constant salary of 50,000 rubles, bonus for the year 100,000, one vacation every 28 days, the average daily earnings will be: (50,000 * 12 + 100,000) / (10 * 29.3 + 53.94) = 2,017.64 ruble per day.
  If the total work experience of an employee at the enterprise is 18 months, he is entitled to 28 vacation days a year, then he earned 28/12 * 18 = 42 days.
  Previously, the employee went on vacation for 28 days. Therefore, 42 - 28 = 14 days are left to compensate.
  Total compensation will be: 2,017.64 * 14 = 28,246.96 rubles.

Personal income tax (PIT) is withheld from the accrued amount, as well as all the employee's debts to the enterprise, including the accountable amounts.

Full payment must be made on the last business day.

Arbitrage practice

Dismissal for NZD is quite vulnerable in the courtroom if done without following all the formalities. Most often, the courts sided with the dismissed employee, having discovered the following shortcomings:

• Lack of PA at the enterprise.
• Violation of the procedure prescribed in the PA.
• Insufficient level of qualification of the commission.
• Absence in the composition of the commission of the representative office of the elected body of the trade union (if there is an organization, Article 82 of the Labor Code of the Russian Federation).
• The lack of clear criteria for the qualifications of an employee and, accordingly, the subjectivity of the opinion about the NRD.
• Lack of confirmation of the conclusions of the commission by additional materials (memoranda, customer complaints, etc.)
• Failure by the employer to offer another job.
• Dismissal violations: lack of coordination with the trade union, dismissal of protected categories and others.

A weak point is also certification in the absence of an employee. Realizing that everything is heading towards dismissal, the employee can simply ignore the invitation. In this case, the PA must necessarily agree on the order of actions - repeated invitation, written notification, etc.

It should also be borne in mind that NZD presupposes the absence of the employee's fault, therefore, it would be wrong to indicate this reason when dismissing, if it is a matter of negligence, negligence or violation of technology.

Proof of inappropriateness for an employee can turn into a complex, time consuming and vulnerable litigation process, especially for organizations with small staff. Therefore, employers rarely use this tool, allowing an employee to quit on more lenient terms. But with the proper level of registration of the necessary documents and regular certification of personnel, it is not necessary to refuse to use this article.

Dismissal for non-compliance with the position held is carried out at the initiative of the employer. Find out what conditions must be met to terminate employment due to insufficient employee qualifications. The article presents samples of documents to be drawn up by the personnel officer.

In the article:

Download related documents:

What are the grounds for dismissal for non-compliance with the position held article: Labor Code of the Russian Federation

Dismissal for inconsistency with the position held is provided for by paragraph three of Article 81 of the Labor Code of the Russian Federation. The main reason for the termination of employment is the lack of qualifications of the employee. The specified basis refers to the termination of the TD (employment contract) at the initiative of the employer. This means that he will have to take into account the prohibitions on the termination of labor relations with certain categories of workers, based on the provisions of Article 81 of the Labor Code of the Russian Federation.

Dismissal under the article “Inappropriateness of the position held” is permissible due to insufficient qualifications on the basis of:

• attestation carried out;
• confirmation of incompetence by the results obtained.

This is established by paragraph three of the first part of Article 81 of the Labor Code of the Russian Federation. Courts also adhere to this position.

Important! Taking into account part six of Article 81 of the Labor Code of the Russian Federation, an employee cannot be fired for inconsistency with the position held during vacation or illness. The employer should wait for the employee to return to work. ... On the first working day, lay off the job. If this procedure is not followed, the employee will be reinstated at work due to illegal dismissal.

An expert from Sistemy Kadry will tell you how to carry out certification. From the article you will learn about the types of certification, the procedure for conducting and the composition of the certification commission.

Is the employer obligated to offer other vacancies

The inconsistency of the employee with the position held is established based on the results of certification. Before dismissal due to insufficient qualifications, the employee should be offered another job in the same organization. This can be any position, including a subordinate one, lower paid, taking into account part three of Article 81 of the Labor Code of the Russian Federation. A complete list of suitable vacancies that are available in the company is drawn up in writing and presented to employees as an offer.

Find out in the magazine "Personnel business" if he does not cope with duties. The article describes the order of actions, presents important details that should be taken into account in order to avoid litigation.

The employee agrees in writing to fill the proposed vacancy or prepares a refusal. If the employee refused to sign the employer's written proposal, an act must be drawn up. Such a document is also drawn up in the event that the employee's refusal to take a vacancy is expressed orally. This will confirm that the employer's actions are lawful. It will be required in court proceedings if the dismissed person filed a claim for reinstatement at work for unlawful termination of labor relations with him.

Termination of an employment contract due to inconsistency with the position held

By Yuri Orlovsky, Ph.D. Sci., professor, scientific director of the Higher School of Law, member of the Scientific Advisory Council at the Supreme Court of the Russian Federation

When it is impossible to fire an employee for non-compliance with the position

The article "Inappropriateness for the position held" is applied in the event that an insufficient qualification of the employee is established. Since dismissal under such an article refers to the termination of employment at the initiative of the employer, it is necessary to comply with the established prohibitions for certain categories of employees.

Dismissal for inconsistency with the position held is unacceptable during vacation, sick leave. You need to wait for the employee to go to work.

Restrictions on dismissal to certain categories of employees

With union members and elected union bodies.	Based on Art. 82, 374 TC.
With pregnant women, with persons with children.	Based on Art. 261 of the Labor Code of the Russian Federation, decisions of the Constitutional Court of the Russian Federation dated December 15, 2011 under No. 28-P.
With minor citizens.	Based on Art. 269 ​​of the Labor Code of the Russian Federation.
With representatives from employees who take part in collective bargaining and in the resolution of collective labor disputes.	Based on Art. 39 of the Labor Code of the Russian Federation, art. 405 of the Labor Code of the Russian Federation.
With the members of the labor dispute committee.	Based on Art. 171, 373 of the Labor Code of the Russian Federation.

In the "Personnel System" you will find a selection: Disputes upon dismissal due to inconsistency with the position held based on the results of certification

How to dismiss for inconsistency with the position held: paperwork

Step 1. Issue an order on the unified form No. T-8 if you part with one employee. Or according to the form No. T-8a, if you part with several specialists at the same time. Instead of unified forms, you can use independently developed and approved order forms. Indicate certification documents as the basis for dismissal.

Step 2. Enter a record in the work book and personal card of the employee. Use the wording: "Fired due to insufficient qualifications, confirmed by the results of certification, paragraph 3 of part 1 of article 81 of the Labor Code of the Russian Federation."

Labor book (fragment)

Download a sample labor record

If the termination of the TD based on the results of certification is carried out with a member of the trade union, the dismissal is coordinated with the trade union on the basis of part two of Article 82 of the Labor Code of the Russian Federation.

What is the timeframe for dismissal for inconsistency with the position held?

If an insufficient qualification level is established, within two months the employee must be transferred to another position based on the certification results. If it is impossible to transfer, including if the employee himself refuses to take a vacant position, the employment relationship is terminated within the same period. Upon the expiration of two months after the certification, dismissal due to inconsistency with the position held is unacceptable. Such rules are established by clause twelve of the Regulations, which was approved by the resolution of the State Committee for Labor No. 267 of October 5, 1973, the State Committee for Science and Technology of the USSR under No. 470.

More on the topic in the journal "Personnel business":. You will find out whether you will have to document that the employee meets or does not correspond to the position and why it is better to send an unqualified employee to training than to terminate the employment relationship with him.

Dismissal for inconsistency with the position held is provided for by paragraph three of Article 81 of the Labor Code of the Russian Federation. The reason for the termination of employment is the lack of qualifications of the employee. The indicated ground refers to the termination of the employment contract at the initiative of the employer. This means that he will have to take into account the prohibitions on the termination of labor relations with certain categories of workers, based on the provisions of Article 81 of the Labor Code of the Russian Federation.

Such grounds for dismissal as inconsistency with the position held are known and applied by many employers. However, some of them do not take such dismissal seriously enough, and this is a rather complicated and time-consuming procedure, due to the fact that it is necessary to take into account the results of certification. Nevertheless, dismissal on this basis is the only acceptable one, so the employer is still better off spending time and energy and creating a certification system - otherwise dismissal on this basis may be considered illegal. What the employer needs to know and what he should do before dismissing for non-compliance with the position held, we will tell in the article.

Employee qualifications

According to clause 3, part 1 of Art. 81 of the Labor Code of the Russian Federation with an employee can be terminated at the initiative of the employer in the event that the employee does not match the position or work performed due to insufficient qualifications, confirmed by the results of certification.
To establish the lack of qualifications, one should understand what qualifications are: 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 necessary 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 qualification level by the documents on education, as well as by the documents confirming work experience in the position (by profession, specialty) for which the employee is accepted. The main document confirming work experience, of course, is the work book. It can also be certificates, licenses and other documents confirming that the employee has received additional education or other additional knowledge, and has completed advanced training courses.
As for the skills of the employee and professional skills, they are tested already in the course of work.

Note! The employer must establish requirements for qualifications by 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 the professional standards have not yet been approved, and there are no precise 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 find that the employee does not cope well with his job duties, makes mistakes, does not fit into the deadlines for completing tasks, etc. And here the question may arise about the inadequacy of the employee for the position held.
But before starting any action, the employer should still find out why the employee does not cope with his duties. Perhaps, responsibilities between employees are unevenly distributed, labor standards are overestimated, the employee was not sent for training or advanced training when it was 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 workers, or an independent decision of the employer to apply professional standards to determine the qualification requirements for workers, the requirements for the level of education may also change. Upon hiring, the candidate's education level met the requirements, and subsequently became insufficient.

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

And in the first case, when it is required 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 qualification requirements, the employer must carry out certification. And only on the basis of its results, an employee can be dismissed as not corresponding to the position.

We carry out certification

Attestation can be defined as a procedure carried out to assess the work of an employee, to determine his business qualities and qualifications in order to establish the suitability of his position. Other purposes of certification are to improve the performance of the organization as a whole, to define production goals and objectives, and to identify training needs for employees.
The compulsory 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 22.08.1995 N 151-FZ "On emergency services and the status of rescuers"). The main provisions for the certification of rescuers are approved by the Decree of the Government of the Russian Federation of December 22, 2011 N 1091;
- prosecutors who have class ranks or hold positions for which the assignment of class ranks is provided (clause 2 of article 41 of the Federal Law of 17.01.1992 N 2202-1 "On the Prosecutor's Office of the Russian Federation"). The regulation on the procedure for attestation of prosecutors of the 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 of 20.06.2012 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 14.11.2002 N 161-FZ "On State and Municipal Unitary Enterprises");
- employees of a hazardous production facility (clause 2 of article 9 of the Federal Law of 21.07.1997 N 116-FZ "On industrial safety of hazardous production facilities");
- librarians (Article 26 of the Federal Law of December 29, 1994 N 78-FZ "On librarianship"). The procedure for conducting periodic certification of employees was approved by Order of the Ministry of Culture of the Russian Federation of June 24, 2016 N 1435;
- persons holding positions related to ensuring the safety of navigation, flights and the movement of land vehicles (clause 9 of the Decree of the Government of the Russian Federation of 08.30.1993 N 876). Certification of such employees is carried out on the basis of the Regulations on the procedure for certification of persons holding the positions of executive heads and specialists of organizations and their departments carrying out the transportation of passengers and goods, approved by the Order of the Ministry of Transport of the Russian Federation, the Ministry of Labor of the Russian Federation of 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 RF Armed Forces of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (hereinafter - Resolution N 2) certification is carried out in the manner prescribed by labor legislation and other acts containing labor standards rights, local regulations adopted taking into account the opinion of the representative body of employees.

Regardless of whether the procedure for conducting certification is determined by regulatory legal acts or not, the organization must have a document that regulates it, for example, a position. There is no normative legal act establishing general rules for attestation, therefore, when developing a regulation in organizations for which this procedure is not established by law, special normative legal documents can be used. One of them is the Decree of the State Committee for Science and Technology of the USSR N 470, the State Committee for Labor of the USSR N 267 dated 05.10.1973 "On the approval of the Regulation on the procedure for certification of managers, engineering and technical workers and other specialists of enterprises and organizations of industry, construction, agriculture, transport and communications."
The regulation on the procedure for conducting certification should establish:
- categories of workers in respect of which certification should be carried out and which are not subject to certification;
- the timing of the certification;
- types of certification (regular, extraordinary);
- powers of the attestation commission;
- criteria for evaluating employees;
- the procedure for conducting certification;
- results and consequences of certification.
At the same time, some provisions can be established by 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 the order of the head. At the same time, if certification is carried out in order to establish the employee's compliance with the position held when deciding on his dismissal on the basis of clause 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, a representative of the elected body of the corresponding primary trade union organization is included in the commission (Article 82 of the Labor Code of the Russian Federation).

The regulation is 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. The employees subject to certification must be familiarized with the position against signature. In addition, the obligation to undergo certification can be spelled out in employment contracts.

Attestation results

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

For your information. In the explanations of the Ministry of Labor on the application of professional standards dated 04/04/2016, it is noted that when applying qualification manuals and professional standards, persons who do not have special training or work experience established in the section "Requirements for qualifications", but have sufficient practical experience and perform efficiently and in in full, the official duties assigned to them, on the recommendation of the attestation commission, are appointed to the relevant positions in the same way as persons with special training and work experience.

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

Limitations of attestation

The certification procedures provided for by regulatory legal acts prohibit certification of certain categories of employees.
For example, according to the Regulation on the procedure for attestation of employees holding positions of teaching staff belonging to the teaching staff, approved by the Order of the Ministry of Education and Science of the Russian Federation of 03/30/2015 N 293, attestation is not subject to:
- employees who have worked in their position for less than two years;
- pregnant women;
- women on maternity leave;
- employees who are on parental leave until they reach the age of three.
Certification of employees on maternity leave, childcare is possible no earlier than two years after their release from these leaves. The Labor Code does not establish such restrictions.
According to the said Regulation, 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 on assignment after graduation from educational institutions; pregnant women and women with children under one year of age. In addition, the executives of enterprises and organizations are not subject to certification, the appointment and dismissal of which is carried out by higher authorities.
At the same time, the Labor Code contains norms introducing a ban on dismissal under paragraph 3 of Part 1 of Art. 81 of the Labor Code of the Russian Federation (part 6 of article 81, article 261).

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

Dismissal procedure

So, if, according to the results of certification, an employee is recognized as not appropriate 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 corresponding to his qualifications, or send him to training.
If the employer decides to fire the employee, he must first offer him a transfer to another existing job (both a vacant position or job corresponding to qualifications, and a vacant lower position or lower-paid job), which the employee can perform, taking into account his state of health. It is necessary to offer all the vacancies that meet the specified requirements available to the employer in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract.

Note! Dismissing an employee under paragraph 3 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the employer must be ready to provide evidence that the employee refused to transfer 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 of Resolution No. 2).

If the employee agrees to transfer to another position, the employer concludes 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. The termination is formalized by an order, as the basis for which the details of the protocol (conclusion) of the attestation commission on the employee's inadequacy for the position are indicated. On the basis of the order, entries are made in the work book and the employee's 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 (article 269 of the Labor Code of the Russian Federation), employees participating in a collective labor dispute or strike (article 415 of the Labor Code of the Russian Federation ) elected to the labor dispute commissions (Articles 171, 373 of the Labor Code of the Russian Federation), etc.

What do you need to know?

As already noted, the dismissal under paragraph 3 of Part 1 of Art. 81 of the Labor Code of the Russian Federation is a rather difficult matter. Employees often appeal against this decision and often reinstate them, and not always because the employer has not proven that the employee is doing his job poorly, but because the dismissal procedure or the certification procedure has been violated.
So, upon dismissal, it is important to confirm that an employee who, according to the results of certification, is recognized as not appropriate for his position, was offered a transfer to the existing vacant positions. When carrying out certification, it should be borne in mind that the certification procedure, the timing, the composition of the commission, the documents to be drawn up, etc. must strictly comply with the established order. In addition, the employee must be familiarized with the regulations on certification, notify about the certification, he must be present during its holding and familiarize himself with its results.

Note. Considering disputes in connection with the dismissal under paragraph 3 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the conclusions of the attestation commission on the business qualities of the employee are assessed by the court in conjunction with other evidence in the case (paragraph 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 members of the commission (Appeal ruling of the Krasnoyarsk Regional Court of 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 regulation and other documents related to this procedure. The attestation commission made the wrong conclusion about the discrepancy between her educational level and the position held. The court found that:
- from the examination sheet with the answers of the worker, it is impossible to draw a conclusion about the correctness or incorrectness of her answers;
- from the testimony of a member of the attestation commission, it is impossible to draw a conclusion about what was the incorrectness or incompleteness of the answers to the questions posed and to what extent the answers of the attested objectively indicate the inadequacy of her position.
The conclusion of the commission was mainly based on the fact that a disabled worker presented an individual program for her rehabilitation, according to which, for health reasons, she cannot do work with traveling and solve complex problems. However, the court considered that this circumstance should not have influenced the conclusions of the attestation commission on the conformity or inadequacy of the employee for the position held, since the state of health may be a circumstance that is significant for dismissal in accordance with Art. 73 of the Labor Code of the Russian Federation, that is, on a different basis.
As a result, the listed circumstances testified to violations of the procedure for the certification of an employee. The court questioned the objectivity of the conclusions of the attestation commission and the legality of the dismissal of the employee, she was reinstated (Appeal ruling of the Moscow City Court of February 24, 2015 in case N 33-639 / 15).
In addition, the courts, when considering such cases, take into account whether the employee was created all the conditions for the performance of official duties, whether he had incentives during his labor activity (and vice versa, whether he was brought to disciplinary responsibility).
And even if an insufficient qualification of the employee is established, the employer should check whether he belongs to the privileged category of employees who cannot be dismissed on the specified basis.

Summing up, we note once again that dismissing an employee based on the results of certification under clause 3 of part 1 of 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 ready to argue 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 labor duties is caused by a lack of necessary knowledge, skills, qualifications).
If the employee does not perform his duties properly, not because he is not qualified enough, but through his own fault, then disciplinary measures must be applied to him.

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

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

What are the general provisions?

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

Who can be fired for inappropriate position

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

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

What are the grounds for dismissal?

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

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

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

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

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

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

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

So that the dismissal does not entail too big problems for the employer, who decided to take advantage of the long absence of his employee for his health reasons, the manager will need to secure special evidence, for example, certificates and a medical examination of the employee can be used, where all health deviations will be described in detail. To get more accurate results, the employer has every right to contact the employee to ask for an additional medical examination. Dismissal of an employee for non-compliance with the position held after certification is also not always a suitable option, the manager must give his subordinate an opportunity to improve, for this he will need to take additional courses and retake the exam again.

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

How certification is carried out

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

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

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

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

What can an employer do after certification?

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

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

How is the employee dismissal procedure carried out?

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

Algorithm of actions in the process of dismissal

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

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

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

Cases in judicial practice

Often, a serious conflict arises between the employee and the employer, which is resolved exclusively through legal proceedings. For example, an employee may not be satisfied with the results of the certification. In this case, the manager is advised to be very careful about the dismissal of his employee. After all, it often costs an employee nothing to prove that the employer is simply surviving him. But if the manager behaves correctly and provides the employee with other vacancies in the organization, and in case of refusal to document everything, then the court will certainly take this fact into account. In judicial practice, there are situations when the employer insists on the dismissal of the employee and does not allow him to pass certification, in which case the court will certainly be on the employee's side. The court will surely ask the question why the manager believes that the employee is not entitled to occupy this or that position, and a simple answer will not be accepted, since it will be necessary to provide evidence. If the court considers that the employer has exceeded his authority and his behavior does not correspond to the official relations, then the dismissed citizen can be reinstated in his position, and the manager will still be obliged to pay monetary compensation for moral damage.

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

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

If all documents were collected for a long time properly, then the issue of dismissal will be resolved quickly and impartially.

Summing up, we can conclude that dismissal for non-compliance with the position held is a laborious process and requires compliance with all legislative norms. The final decision on the dismissal of an employee can only be made by the head of the organization, therefore, he is fully responsible for such a decision. The incompetence of an employee can lead to a production defect, so the manager can impose penalties on his employee. Several such penalties will entail dismissal under a special article of the Labor Code, which cannot be challenged in court. The issue of dismissal can be resolved amicably, for this the head of the organization can offer his employee dismissal at the mutual desire of the two parties. In this case, everyone wins. The employee can easily get a job at another place, and the employer can avoid unnecessary difficulties.