Attestation at the enterprise serves to assess the quality of the skills and functional skills of the employee, necessary for him to professionally perform his job duties. Dismissal based on the results of certification occurs when the employee does not meet qualification requirements, about which there is a written conclusion of the commission. Let's consider how and in what cases it is possible to fire an employee who has not passed the certification.

Dismissal of employees based on the results of certification

The conditions that an employee working at the enterprise must correspond to the position held are contained in the Labor Code of the Russian Federation.

The provisions of Article 81 establish that dismissal is possible after certification, at the initiative of the employer of an employee who has not confirmed his qualifications based on the results of certification.

You just need to be very careful about the issue of formalizing the results of knowledge testing, otherwise they can easily be challenged.

Attestation rules

In order to legally dismiss an employee during certification, if he did not cope with the certification requirements, the procedure itself should be properly prepared and carried out in accordance with the Regulation on certification and the norms of the law.

1. Should be convened certifying commission.
2. Certification is possible both verbally and writing.
3. All answers of the employee must be entered in a specially prepared certification sheet.
4. The employee must be familiarized with the completed attestation sheet, against signature.
5. In the minutes of the commission meeting, there should be revenge for each employee, the result of the vote, according to which a decision is made for each individual employee.
6. In accordance with the conclusion of the attestation commission, a mark is put on whether the employee corresponds to his position or not.
7. Certification should be regulated by a special Regulations adopted at the enterprise.

The conditions for attestation are reflected in the Regulations. It may contain other wording about the results of certification. So, for example, you can enter information that the employee corresponds to the position, but must undergo retraining, or advanced training. It is also possible to add information to the Regulations that the certification commission has the right to give recommendations to the employee, with the subsequent rechecking of the implementation of these recommendations by the employee.

Dismissal on the basis of certification

Particular attention should be paid to the correctness of the procedure for dismissal. Indeed, in the legislation there are many options for the outcome of the same event - not passing certification. For example, if an employee who is a member of a trade union is fired, a notification and a written opinion from the body of the trade union organization is required.

In the manner provided for by Art. 373 of the Labor Code, before dismissing a member of the trade union based on the results of certification, all documents on dismissal, including the order and the results of certification, are sent first to the elected body of the trade union organization. After the trade union has received these documents, within seven days it is obliged to give a written opinion on the possibility of dismissing this employee.

It is prohibited by law to dismiss an employee based on the results of certification, if he is on sick leave, or is in the next paid or in unpaid leave... However, not everything is so simple even if the employee does not pass the certification, if he is not a member of the trade union. His dismissal also does not happen instantly, you need to take into account some procedures.

How is dismissal based on the results of certification

After the certification has taken place, all the materials and conclusions of the commission are sent to the employer, the head of the enterprise, authorized to make decisions on dismissal. The manager considers these materials, after which he makes decisions on dismissal, or on leaving the employee in office.

It is important that the manager adheres to the deadlines set by the Regulation. If the dismissal during certification occurred later, it can be challenged. The Regulation should clearly state the time frame for the manager to make decisions based on the results of the attestation.

So, if, nevertheless, an employee does not meet the criteria defined for a given position, he can be dismissed only after he, in the proper manner, is offered another job at the same enterprise, which corresponds to his level of qualifications. At the same time, it is necessary to notify the employee about the vacancies available for him in writing. The notification is drawn up in such a way that the employee understands that he does not correspond to the position held, but he is offered a transfer to certain vacant positions. In the notification, you need to indicate the column where the employee will sign that he is familiar with all the vacancies existing at the enterprise. And one more column, where he indicates his consent, or disagreement to the transfer to another position.

That is, the dismissal of an employee based on the results of certification does not occur immediately, after the meeting of the commission. The commission indicates its opinion in the protocol, and the employer can decide to send the employee to advanced training, training, courses. Or, make a decision that the employee can no longer work in this position, which he does not correspond to.

Dismissal of an employee who refused to pass certification

In itself, the refusal of an employee to undergo certification is not a reason for dismissal. He can be imputed disciplinary action in the form of a reprimand or remark. Nevertheless, according to article 21 of the Labor Code of the Russian Federation, such an employee violates labor discipline at the enterprise. If he was familiarized with the job description, the work schedule, the Certification Regulations on signature, was duly notified of the upcoming certification, and still refuses to pass it, such an employee can be brought to disciplinary responsibility.

If the employment contract and the Regulations contain information about certification and dismissal, in case of repeated refusal of certification, or in violation of labor discipline by an employee, he can be dismissed under the article, in accordance with the employer's initiative.

Opinion judicial practice there are different things. On the one hand, the courts have repeatedly indicated in their acts that violation of labor discipline, if documented, is a legal basis for dismissal. But in the labor legislation there is no article that directly permits the dismissal of an employee if he does not pass certification, in case of his refusal, and not an official inconsistency. Therefore, if an employee refuses to pass certification, this should be documented. The manager has every right to issue an order to bring the employee to disciplinary action.

The State Duma Committee on Labor, Social Policy and Veterans Affairs submitted for consideration to the State Duma a draft federal law No. 352239-6 "On Amendments to Article 81 Labor Code Russian Federation". The draft law proposes to supplement Article 81 with part seven, with the following content:" Dismissal on the grounds provided for in paragraph 3 of part one of this article may be made no later than three months from the date of bringing the certification results to the notice of the employee against signature, not counting the periods of temporary disability of the employee , his stay on vacation and other periods of absence of the employee, when he retains his place of work (position) ”.

We remind you that non-compliance of the employee with the position held due to insufficient qualifications is the basis for termination employment contract at the initiative of the employer (clause 3 of the first part of Article 81 of the Labor Code of the Russian Federation).

According to the developers of the bill, this amendment will protect workers from illegal dismissal after the expiration of a three-month period, since at present the employer can dismiss the employee several years later after receiving negative certification results.

Employers often view appraisal as one way to legally get rid of unwanted workers. But they forget that if this dismissal (according to paragraph 3 of the first part of Article 81) is recognized in court as unlawful, then the employer will have to reinstate this employee at work, pay wages during the forced absence, monetary compensation for causing non-pecuniary damage and draw up the appropriate changes to personnel accounting.

The topic of conducting and formalizing the certification of workers raises many questions. This is due to the fact that currently there is no single normative act that would consolidate general rules carrying out certification. There are only a few industry-specific regulations that govern the certification procedure for workers in these industries.

Certification is important for both sides of an employment relationship: it will help the employer to form personnel reserve, dismiss employees who do not meet the requirements for the position, and the employee - the opportunity to get a well-deserved promotion.

In this article, we would like to give general recommendations on the certification of your employees, tell what local regulations in the field of labor law are necessary when carrying out certification.

First of all, attestation is a periodic check of the professional level of an employee to establish the compliance of his qualifications with the position held or the work performed. As a rule, certification of employees should be carried out at least once every three to five years. An extraordinary certification can be carried out in the case of planning a reduction in the number or staff of an organization, ineffective work department, etc.

Employee qualification requirements are defined in employment contract , job description, tariff and qualification reference books. In an employment contract or job description the employee must be clearly spelled out his labor duties... After all, if the employee is recognized as having not passed the certification, and his duties are not documented, then this will lead to litigation.

Currently, federal laws and other regulations the certification of the following categories of workers is provided:

• civil servants;
• rescuers;
• prosecutors with class ranks;
• employees of the Investigative Committee;
• aviation personnel;
• heads of unitary enterprises;
• hazardous workers production facility;
• scientific and pedagogical workers;
• librarians;
• persons holding positions related to the safety of navigation, flights and land traffic Vehicle.

For other categories of employees, certification is not mandatory and is carried out by the decision of the employer on the basis of the ones developed by the employer. local regulations .

To carry out certification, the employer must approve a local normative act governing the procedure for conducting and applied certification procedures - the provision on certification. Since, at present, there is no single normative act that would determine the general rules for conducting certification in commercial organizations, then when preparing a regulation on certification in a commercial organization, you can take as a basis the Regulation on the procedure for certification of civil servants and other regulations concerning the behavior of certification of certain categories of employees.

Additional documents that need to be based on when carrying out certification are the internal labor regulations of the organization, regulations on the structural divisions of the organization, employment contracts , job descriptions of workers.

We remind you that personnel records management it is necessary to start with the formation of local regulations in the organization. Development of local regulations (for example, a wage clause, a business trip clause, trade secrets etc.) is one of our services, so you can use it if necessary. Currently, there are many different templates for local regulations. But the very name of local acts suggests that they should be developed for a specific organization, taking into account all the features of its activities. Rendering within HR outsourcing a service for the development of local labor regulations, we offer an individual approach and the preparation of legally competent documents based on current standards labor law.

We remind you that before signing employment contract the employee must be familiarized with the signature local regulations regulating its activities. This also applies to the regulation on certification.

The attestation statement should include:

• tasks and objectives of the certification;
• categories of workers in respect of whom certification is carried out;
• categories of workers for whom certification is not carried out. These include: pregnant women; women on parental leave; who have worked in their position for less than one year; have reached the age of 60;
• the timing of the certification (depending on the goals and objectives);
• the composition of the attestation commission;
• criteria for assessing the level of qualifications of an employee, with which employees should be familiarized in advance; forms of tests, questionnaires, lists of questions are being developed;
• the procedure for conducting certification;
• terms of decision making after certification.

Employees must be familiarized with this provision against signature. The employer must approve the certification schedule and bring it to the attention of each certified employee no later than one month before the start of certification.

If the commission decides that the employee is not suitable for the position held, then the employer may:

• provide an opportunity for an employee to improve their qualifications;
• offer another job;
• in the absence of other positions or the employee's disagreement with the transfer, terminate labor contract on the basis of paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.

It must be remembered that there are categories of workers whom the employer cannot dismiss, even in case of failure to pass the certification:

• a pregnant woman;
• a woman with a child under the age of three;
• a single mother raising a child under the age of 14 (a disabled child under the age of 18);
• a father raising a child under the age of 14 without a mother (a disabled child under the age of 18), or a guardian, curator of children of the specified age;
• a parent (guardian, trustee) who is the sole breadwinner of a child under 3 years old in a family with three or more children under 14 years old or a disabled child under 18 years old if the other parent (guardian, custodian) does not work.

So, in this article we examined the main issues related to the certification of workers. Let's formulate the final list of documents required for certification:

• the approved Regulation on certification, with which the employee is familiarized with the list;
• notification to the employee about the period of certification;
• protocol of the certification commission;
• certification sheet;
• document confirming written familiarization of the employee with the certification results;
• a written offer to the dismissed employee of other vacancies, his written refusal;
• dismissal order, with which the employee is familiarized with signature.

If you want to know more about how to arrange the certification of employees, or you need personnel support , then we will be happy to help you with this, since we specialize in personnel records , development of local regulations in the field of labor law and other issues of registration of labor relations with employees.

L.A. Elina,
leading expert

When an employee does not cope with his duties and the management fails to agree with him about dismissal by agreement of the parties, some organizations carry out certification. But if it is carried out with procedural violations, its results can be challenged. Then the dismissed employee will be able to recover at work and recover from the company average earnings during the forced absence and compensation for moral damage.

Dismissal of employees based on the results of certification

Develop and approve a statement of attestation

As a basis, you can take the old Soviet Regulation on the procedure for conducting certification and articles 8, 81 of the Labor Code of the Russian Federation; Position approved. Resolution of the State Committee for Science and Technology of the USSR No. 470, Goskomtruda of the USSR No. 267 dated 05.10.73 (hereinafter referred to as the Soviet Regulations). Moreover, it is better not to prescribe in your local regulation on certification rules that will worsen the conditions for your employees in comparison with the Soviet Regulation.

At the same time, there are regulations governing the conduct of certification in relation to certain categories of workers. For example, during certification in universities, scientific teaching staff it is necessary to adhere to the Regulation on the procedure for conducting certification, approved by the Ministry of Education and Order of the Ministry of Education and Science of March 30, 2015 No. 293. If your organization is subject to any industry certification clause, you should consider the rules.

Attention

Employees of the company must be sure to familiarize themselves with the certification regulations and Art. 22 of the Labor Code of the Russian Federation.

Fix in your position how the certification commission will be formed. Write down the timing and form of the certification, as well as what exactly it will be. Establish assessment criteria for different categories of workers. Based on the established criteria, forms of tests, questionnaires and / or lists of questions for specific categories of workers can be developed.

If the company has a union, do not forget to take its opinion into account when approving the certification regulation. and Art. 8, part 2 of Art. 81, art. 372 of the Labor Code of the Russian Federation; nn. 24,.

The regulation on certification must be approved by the order of the head.

Form an attestation commission

The attestation commission, as a rule, includes a chairman, members of the commission (including a deputy chairman) and a secretary. The commission may include experts from among highly qualified employees, as well as heads of relevant departments. Your position may include the possibility of participating in a commission independent experts who are not employees of your organization.

reference

When forming qualification requirements, you can focus on the norms of the professional standard, the Unified Qualification Handbook or the Unified Tariff and Qualification Handbook.

Be sure to include in the attestation commission a representative of the elected body of the trade union organization (if it there is) Art. 82 of the Labor Code of the Russian Federation.

Approve the nominal composition of the attestation commission by order of the head of the attestation and clause 5 of the Soviet Regulations; Art. 82 of the Labor Code of the Russian Federation.

Prepare for certification

Inform the employees about the upcoming certification within the timeframe established by your regulation on certification.

Not later than 2 weeks before certification, for each certified employee, the direct supervisor must submit a written response to the commission members (characteristics y) Clause 6 of the Soviet Regulations. The review reflects the assessment of the employee's activities, his qualifications, and also indicates how much he observes labor discipline.

No later than a week before certification, familiarize the employee with the feedback presented to him m Clause 6 of the Soviet Regulations.

Conduct certification

As a rule, the certified employee answers the test questions or speaks orally with the members of the commission - it depends on the specifics of the certification.

reference

Certification cannot be carried out in relation to and Clause 4 of the Soviet Regulations:

pregnant women;

women with children under the age of 1 year;

employees who have worked in their position for less than 1 year.

And on the basis of negative results of certification, a whole group of people cannot be dismissed. Including women with children under the age of 3 and single mothers raising a child under the age of 14 (a disabled child under the age of 18 years) Art. 261 of the Labor Code of the Russian Federation.

An employee's assessment should be based on his compliance with the qualification requirements for the position, set out in his job description and / or employment contract. In doing so, take into account the employee's professional knowledge, work experience, professional development, retraining and other data.

Please note that:

during certification, the secretary of the certification commission must keep a free form of the minutes of its meeting;

the voting results must be determined by a majority vote. In case of equality of votes in assessing the performance of the certified employee, he must be recognized as having successfully passed the certification and corresponding to the position held;

the voting results must be entered in the protocol l Clause 8 of the Soviet Regulations;

these results must be announced to the certified employee immediately after summing up the voting results of the members of the certification commission;

conclusions about the certification (or non-certification) of the employee must be entered in the certification sheet clause 9 of the Soviet Regulations. Such a sheet must be drawn up in two copies:

One copy of it, along with a response to the employee, must be kept in his personal file;

The second must be given to the employee, preferably against signature;

the results of certification of employees must be entered in section IV of the personal card in the form No. T-2;

the employee certification sheets filled out by the commission must be handed over to the head of the company.

Attention

Dismissing an employee based on the results of certification during the period of his temporary incapacity for work or being on vacation cannot I am Art. 81 of the Labor Code of the Russian Federation.

Keep in mind that an employee can challenge the legality of his dismissal based on the results of certification, if, for example, the procedure for conducting such certification has been violated. So, one employee managed to recover by a court decision, since the questions specified in the attestation sheet did not meet the requirements of the job description, and the employee's answers to the questions of the commission members were not recorded NS Appeal ruling of the Krasnoyarsk Territory Court dated 12.24.2014 No. 33-12241. And the other worker recovered, since the certification consisted only in the announcement of the response submitted in relation to her by her immediate supervisor m Appellate ruling of the Yamalo-Nenets Autonomous Okrug dated 05.06.2014 No. 33-1144 / 2014.

Make a decision of the management based on the results of the attestation

All personnel decisions in relation to an employee (for example, on dismissal) can be made only within 2 months from the date of certification and Clause 12 of the Soviet Regulations. If the manager has decided to leave him in his previous position, then nothing needs to be done.

If the manager wants to dismiss an employee from his position, it is necessary to strictly follow all the procedures preceding such dismissal.

reference

If an employee is a member of a trade union, then before firing him, the opinion of this trade union (the elected body of the primary trade union organization and) articles 82, 373 of the Labor Code of the Russian Federation; nn. 24, 31 Resolutions of the Plenum of the Armed Forces of 17.03.2004 No. 2.

If the employee is the head or deputy head of the elected collegial body of the trade union organization, then the employer must request the prior consent of the higher elected trade union body a Art. 374 of the Labor Code of the Russian Federation.

But even if the union is against, it is still possible to fire the employee. O articles 373, 374 of the Labor Code of the Russian Federation. The dismissal procedure will only be somewhat complicated. We will have to hold additional consultations with the trade union, draw up protocols based on their results.

If in the course of such consultations it is not possible to reach an agreement with the union, the employer may decide to dismiss the employee.

Such a decision can be appealed to labor inspection... And if she finds it illegal, the organization will receive an order to reinstate the employee at work with the payment of forced absenteeism. This order can be challenged in court.

Also, the employee himself or the trade union can apply directly to the court on the legality of the dismissal of an employee. s articles 373, 374 of the Labor Code of the Russian Federation.

An employee who is recognized as not corresponding to the position held must be offered vacant positions (work in the same area), both corresponding to his qualifications, and lower or lower paid. Higher positions - only if it is provided for by the collective and / or labor contract and agreements and h. 3 tbsp. 81 of the Labor Code of the Russian Federation.

Offer vacancies be sure to draw up in writing. Also ask for the employee's answer in writing. If the employee agrees, then complete the transfer additional agreement to the employment contract at Art. 72 of the Labor Code of the Russian Federation.

If the company does not have suitable vacancies, or the employee refused the vacancies you proposed, issue an order to terminate the employment contract. To do this, you can use the form No. T-8 p. 3 h. 1 tbsp. 81 of the Labor Code of the Russian Federation.

In the work book, the dismissal record looks like this.

By general rule no need to pay the dismissed severance pay... But its payment can be provided for in the collective agreement of the company, local regulation or employment contract with the dismissed employee.

Upon completion of the certification, provide all materials to the head of the organization (other authorized person). He must make the final decision on the results of the certification. Include information about the results of the attestation in the employee's personal card. In commercial organizations, the Forms of the attestation sheet and protocol are not established by law. Therefore, they can be drawn up in any form (certification sheet, minutes of the meeting of the certification commission). In state and municipal institutions To carry out the certification of employees, higher departments can establish (recommend) the forms of certification (qualification) sheets and minutes of the meeting of the certification commission. For example: An example of formalizing the results of certification of an employee Five accountants have been certified in the organization.

Dismissal of employees based on the results of certification. legal aspects

Recall that at present, quite a lot has been developed. professional standards they are ultimately intended to replace qualification handbooks. However, it is too early to write off ETKS and the Qualification Directory of the positions of managers, specialists and employees.
On the basis of these Directories (and now professional standards), job descriptions are developed, in which, in addition to the direct duties and functions of the employee, the employer can prescribe requirements for work experience and educational level, as well as other requirements for occupying a particular position (for example, possession of one or several foreign languages, the ability to work on a computer).

Certification of teachers for the suitability of the position held

Thus, in your case, you need to: - make changes to the certification schedule, setting in it a new date for its conduct for the absent employee, - invite the employee to read the Certification Regulations and deliver a notice of the certification date, - if the employee refuses to familiarize , draw up an appropriate act, - send a letter to the employee about the upcoming certification and attach a copy of the Certification Regulations to it. Details in the materials of the Personnel System: 1. Answer: How to carry out certification of employees The purpose of certification Why certification of employees is necessary Perform certification of employees in order to determine their business qualities and evaluating the results of their work.

Certification of employees as a basis for dismissal

One of the grounds for terminating an employment contract on the initiative of the employer is the employee's inadequacy for the position held or work performed due to insufficient qualifications, confirmed by the results of certification (clause 3, part 1 of article 81 of the Labor Code of the Russian Federation). As practice shows, dismissal on this basis quite often ends with proceedings in court, and often their result is the loss of the employer.
In this article, we will tell you what is meant by certification, in relation to which categories of employees it can be carried out, what is its frequency and what is the procedure for dismissing an employee if, based on the results of certification, he is recognized as not appropriate for the position held or the work performed. Attestation concept.

We carry out certification, or how to fire a bad employee?

Such requirements can be established on the basis of the Qualification Handbook approved by the Resolution of the Ministry of Labor of Russia dated August 21, 1998 No. 37 (Rostrud letter dated April 30, 2008 No. 1028-s);

• positions of employees whose knowledge will be tested during certification;
• the procedure for conducting scheduled and extraordinary attestations;
• the procedure for the formation of the attestation commission;
• certification procedure;
• registration of attestation results (the procedure for keeping the minutes of the attestation commission meeting, issuing an order based on the attestation results, etc.).

The regulation on certification is put into effect by order of the head of the organization. After the regulation comes into force, it is necessary to familiarize with it against the signature of all working employees and each new employee upon hiring (Part.
3 tbsp. 68 of the Labor Code of the Russian Federation).

Not as easy as it seems: dismissal based on the results of certification

Regulation on certification and legal norms.

1. An attestation commission should be convened.
2. Certification is possible both orally and in writing.
3. All answers of the employee must be entered in a specially prepared certification sheet.
4. The employee must be familiarized with the completed attestation sheet, against signature.
5. In the minutes of the commission meeting, there should be revenge for each employee, the result of the vote, according to which a decision is made for each individual employee.
6. In accordance with the conclusion of the attestation commission, a mark is put on whether the employee corresponds to his position or not.
7. Certification should be regulated by a special Regulations adopted at the enterprise.

The conditions for attestation are reflected in the Regulations.

What should an employer do if an employee refuses to be certified?

In particular, for the certification of teaching staff, the application form was recommended by the Ministry of Education and Science of Russia and brought in a letter dated August 18, 2010 No. 03-52 / 46. In addition, on the basis of the recommended forms, regional departments can develop application forms (other forms) for institutions of the constituent entities of the Russian Federation (municipal institutions).

For example, for teachers of state educational institutions Petersburg, the application form is established by the order of the Education Committee of the Government of St. Petersburg dated December 31, 2010 No. 2323-r. The decision to conduct an appraisal What document should be used to draw up a decision to conduct an appraisal of employees in an organization Start any appraisal with a decision to conduct it.

Such a decision should be made by the head of the organization or an employee who is responsible for the appointment of certification. Issue the decision by order.

Important

If the order of dismissal cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under the signature, a corresponding entry is made on the order.

1. We make an entry in work book... The next step is to make a record of the dismissal in the work book.

According to clauses 14, 16 of the Rules for maintaining and storing work books, a record of the reason for terminating an employment contract is entered into a work book in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law. Moreover, if the dismissal is carried out at the initiative of the employer, the entry is made with reference to the relevant paragraph of Art.
81 of the Labor Code of the Russian Federation.

Let's give an example.
The main task facing the heads of enterprises, when they carry out various activities for the certification of their employees, is to optimize the existing work processes in the company and in the organization. labor activity at the enterprise. According to the legislation in force in the country and existing standards, the implementation of measures for the certification of their employees is not considered mandatory for all enterprises or organizations.
At the same time, the existing regulatory rules and norms of the law, as well as legislation in the field of labor relations between workers and employers, determine such a duty for certain types of labor activity and enterprises. In many other enterprises or organizations, such measures for the implementation of certification of their direct employees are carried out at the request of managers and are not considered a mandatory procedure.

If the employee has not passed the certification for the last day

Attention

An important condition that must be fulfilled when carrying out the certification of its employees is that the conditions and procedure for carrying out activities for the certification of employees at enterprises must be fully spelled out. Women who are in a position of pregnancy.

Because even when it is possible to determine their inconsistency with the position held at a certain enterprise their dismissal will be impossible in accordance with the current article of the Labor Code of the Russian Federation. Employees who are in a certain period of time legal leave associated with caring for children under 3 years of age. In addition, the implementation of planned activities that are associated with the direct re-certification of employees provide an excellent opportunity for the rational movement of personnel of their employees.
Oksana Vlasova 12/28/2016 4:19:14 PM Articles on the subject What is easy labor and who falls under it? What state bodies are investigating the unfortunate ... How is the certification of employees for compliance ...

The employer has the full legal right to terminate the drawn up employment contract with a certain employee who does not fully correspond to his position or the work performed in cases where he does not have the required knowledge and experience for a certain qualification. This justification is indicated in stat. 81 points 3 parts 1. Features of dismissal of an employee in connection with the inadequacy of the position held. legal grounds dismiss your employee who does not meet his qualifications, you will need to use the stat.

This article will focus on how to properly carry out the procedure for identifying the inconsistency of an employee with the position held and competently dismiss him without unfavorable legal implications for the employer. In addition, an example from judicial practice with interesting nuances of the case is given.

Dismissal on the basis of certification. General Provisions

The Labor Code of the Russian Federation provides for "termination of an employment contract at the initiative of the employer" (Article 81). The mentioned article contains a number of parts with clauses, including clause 3 of part 1 of Art. 81 about the inadequacy of the employee for the position held or for the work performed due to insufficient qualifications, confirmed by the results of attestation.

The certification procedure is established labor legislation and other normative legal acts containing labor law norms, local normative acts adopted taking into account the opinion of the representative body of workers (part 2 of article 81 of the Labor Code of the Russian Federation).

Dismissal on the grounds provided for in clause 3 of part 1 of the above article is allowed if it is not possible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account the state of his health. At the same time, the employer is obliged to offer all vacancies that meet the specified requirements that he has 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.

It should be noted that the letter of Rostrud dated April 30, 2008 No. 1028-s "On the dismissal of an employee due to insufficient qualifications" states that the dismissal of an employee on the above grounds not allowed without certification.

There is no definition of the notion “attestation” in the Labor Code of the Russian Federation. However, this term is found in the Labor Code of the Russian Federation in different meanings. So, for example, in Art. 173, art. 174 is about examination tests in educational institution... Under certification the same workers, as a rule, they understand the procedure, which is a comprehensive check of the level of business, personal, and sometimes moral and moral qualities of an employee for the corresponding position in modern conditions labor.

The main tasks certifications are:

• checking the professional level and skills, business qualities and / or specialized theoretical knowledge of employees;
• the ability to apply them when performing the functions determined by the employment contract;
• formation of highly qualified personnel.

It is with the help of attestation that it is possible to determine which of the employees needs training, and which can be transferred to a higher position.

At the moment, there is no regulatory legal act of the federal level that would regulate the general rules for conducting, terms, categories of employees, as well as other issues related to personnel certification. However, it should be noted that there are separate acts on this procedure for some categories of workers in which the state is interested, in particular:

• civil servants (art.48 Federal law dated July 27, 2004 No. 79-FZ "On state civil service Russian Federation "(as amended on 02.04.2014));
• scientific and pedagogical workers (Article 332 of the Labor Code of the Russian Federation, Article 49 of the Federal Law of December 29, 2012 No. 273-FZ "On Education in the Russian Federation" (as amended on July 21, 2014), Resolution of the Government of the Russian Federation of September 24, 2013 No. 842 "On the procedure for awarding academic degrees" (as amended on July 30, 2014) (together with the "Regulations on the awarding of academic degrees"));
• experts in the field of special assessment of working conditions (Article 351.3 of the Labor Code of the Russian Federation, Federal Law of 28.12.2013 No. 426-FZ "On special assessment working conditions "(as amended on June 23, 2014));
• 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 No. 2202-1 "On the Prosecutor's Office of the Russian Federation" (as amended on 21.07.2014));
• aviation personnel (clause 2, article 8 of the Air Code of the Russian Federation dated 03.19.1997 No. 60-FZ (as amended on 04.20.2014));
• rescuers (Articles 23, 24 of the Federal Law of 22.08.1995 No. 151-FZ "On emergency services and the status of rescuers" (as amended on 02.07.2013));
• 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 30.08.1993 No. 876 "On measures to ensure the sustainable operation of aviation, sea, river and road transport in 1993 "(as amended on 16.10.2000), Order of the Ministry of Transport of the Russian Federation, the Ministry of Labor of the Russian Federation of 11.03.1994 No. 13/11" On approval of the Regulations on the procedure for attestation of persons holding the positions of executive managers and specialists of transport enterprises "(as amended by from 05/11/2000));
• librarians (Article 26 of the Federal Law of December 29, 1994 No. 78-FZ "On librarianship"(As amended on 02.07.2013));
• workers of a hazardous production facility (clause 2 of article 9 of the Federal Law of 21.07.1997 No. 116-FZ "On industrial safety of hazardous production facilities"(As amended on 02.07.2013));
• heads of unitary enterprises (clause 2 of article 21 of the Federal Law of 14.11.2002 No. 161-FZ "On state and municipal unitary enterprises"(As revised on 28.12.2013)).

Unlike the specialists listed above, for whom certification is a mandatory procedure, in commercial organizations it is voluntary and is carried out at the initiative of the management team.

It is important to consider that the Labor Code of the Russian Federation provides for categories of workers who are not subject to dismissal based on the results of the certification(since this is a dismissal at the initiative of the employer), therefore, carrying out certification in relation to such employees either does not make sense, or is relevant only for the purpose of increasing in remuneration, in position, etc.

According to Art. 261 of the Labor Code of the Russian Federation, “termination of an employment contract with a pregnant woman, with a woman with a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a minor child - a child under the age of fourteen, with another person raising these children without a mother, with a parent (other legal representative of the child) who is the only breadwinner of a disabled child under the age of eighteen or the only breadwinner of a child under the age of three in a family raising three or more young children, if the other parent ( other legal representative of the child) is not labor relations, at the initiative of the employer is not allowed. "

Dismissal of employees who meet these criteria, based on the results of the certification and on the basis of clause 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation will be considered illegal.

In addition, the employer should be aware of general constraints, which also do not allow the dismissal of an employee under paragraph 3 of Part 1 of Art. 81 of the Labor Code of the Russian Federation. So, according to Part 6 of Art. 81 of the Labor Code of the Russian Federation, you can't be fired in the usual way:

• employees on vacation, regardless of its type;
• employees during the period of temporary disability.

However, it should be remembered that there are certain categories of workers who it is possible to dismiss under the above article, but only in accordance with the application of certain special procedures in accordance with the Labor Code of the Russian Federation:

• workers who are members of the trade union (part 2 of article 82 of the Labor Code of the Russian Federation);
• representatives of employees during the period of collective bargaining (part 3 of article 39 of the Labor Code of the Russian Federation);
• workers under the age of 18 (Article 269 of the Labor Code of the Russian Federation);
• representatives of employees participating in the resolution of a collective labor dispute (Article 405 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);
• employees elected to the commissions for labor disputes(Articles 171, 373 of the Labor Code of the Russian Federation);
• heads (their deputies) of elected collegial bodies primary trade union organizations, elective collegial bodies of trade union organizations of structural subdivisions of organizations - not lower than shop and equated to them (Articles 374, 376 of the Labor Code of the Russian Federation).

Features of the certification

For certification it is necessarydevelop and approve a provision (local normative act) on certification.

When developing a project local act the employer has the right to use as a recommendation document the Decree of the State Committee for Science and Technology of the USSR No. 470, Goskomtruda No. 267 dated 05.10.1973 "On 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 "(together with" Model list positions of management, engineering and technical workers and other specialists in industry, construction, agriculture, transport and communications and other sectors of the national economy, subject to certification in accordance with the Resolution of the Council of Ministers of the USSR of July 26, 1973 No. 531, approved. By the decree of the State Committee for Science and Technology of the USSR, the State Committee for Labor of the USSR dated 10.22.1979 No. 528/445) (as amended on 11.14.1986; hereinafter referred to as the Regulation). This Regulation should be applied subject to Art. 423 of the Labor Code of the Russian Federation. The developed regulation on certification must be approved by the head of the organization.

The main stages of preparation and certification are as follows:

• issuance of an order for attestation;
• creation of an attestation commission;
• coordination of the certification schedule;
• familiarization against the signature of the entire working team and each newly hired (according to part 3 of article 68 of the Labor Code of the Russian Federation);
• preparation required documents for the work of the certification commission;
• approval of a preparatory list of questions for certification assignments;
• certification;
• summarizing.

Certification can be carried out as planned, in accordance with the schedule approved by the certification commission or the head of the organization, and unscheduled - at the initiative of the employee himself or his manager.

The timing of routine certification for employees, as a rule, does not exceed once every three to five years.

The organization sets the period for the certification independently, depending on the number of employees subject to certification, on the possibility of holding it in one or several divisions at the same time and other factors. The forms of certification are selected depending on the specifics of the profession of the person being certified. Thus, it can be a written exam, testing, practical task(problem solving), sample production (glass blowers).

One of the most important points when preparing certification is evaluation criterion. On its basis, the qualification level of the certified workers is assessed and the correspondence of this level to the work performed is established.

Such criteria can be the following:

• compliance with the qualification requirements for the position being replaced, approved in accordance with the established procedure;
• determination of the employee's participation in the decision of the assigned structural unit tasks;
• the complexity of the work he does;
• the results of the employee's performance of the job description;
• undergoing advanced training and professional retraining.

As an example for the development of assessment criteria and their documenting can serve as the Regulation on the procedure for certification of employees of the Pension Fund of the Russian Federation, approved. Resolution of the Board of the RF PF dated 15.01.2007 No. 5p. V this document presents a scale for assessing the professional, business, moral and psychological qualities of an employee and the characteristics of a manager, certified in points, a table of criteria for assessing the person being certified, as well as a description of the criteria for assessing someone being certified at four levels of the scale. Also, the criteria can be determined in accordance with the requirements for specialties established in Qualification handbook positions of managers, specialists and other employees, approved. Decree of the Ministry of Labor of the Russian Federation of August 21, 1998 No. 37 (as amended on February 12, 2014).

Based on the established criteria, appropriate test forms, examination questions, etc. are developed.

The certification process is recorded in protocol, which contains all the information about its conduct, information about the person being certified and the assessment of his qualifications. The results of the event are documented in writing as annexes to the protocol.

Upon completion of the certification, the commission discusses and makes a decision on each employee in the manner prescribed by the regulation (this can be an open or closed vote, in the presence or absence of the employee). The decision made on the basis of the certification and reflected in the protocol is communicated to the employees against signature within the time frame specified by the regulation. It is advisable to provide in the provision that a meeting of the certification commission will be considered valid if it is attended by at least two-thirds of its members.

The results revealed during the certification process can be recorded in the employee's personal card in the appropriate section. If personnel service uses unified form№ T-2, then the following information is entered into section IV "Attestation": the date of attestation, the decision of the attestation commission and the details of the foundation document (protocol or other).

The employer needs to know that in accordance with the Order of the Ministry of Culture of Russia dated 25.08.2010 No. 558 "On approval of the" List of standard administrative archival documents generated in the course of activities government agencies, bodies local government and organizations, indicating the storage time "" the storage period for minutes of meetings of certification, qualification, tariff commissions, documents (minutes of counting commissions, secret ballot papers) for them is 15 years, and at enterprises with heavy, harmful and dangerous conditions labor storage period increases and is 75 years.

Before carrying out the certification, you should make sure that the necessary local regulations were in perfect order and that job / professional instructions were drawn up for all positions in this organization with clear instructions on the responsibilities that the certified employee should be guided by. Otherwise, if the employer decides to fire the employee based on the results of certification, and the dismissed employee later goes to court with a statement of claim for reinstatement at work, payment of wages for forced absenteeism and compensation for moral damage, then in the absence of the necessary local regulations, including job / professional instructions play an important role, the court may invalidate the results of the certification, and the dismissal of the employee is illegal.

Arbitrage practice

So consider two examples from jurisprudence with the opposite decisions made by the judicial collegium.

In the first example citizen A. went to court and a statement of claim to the Federal State budget institution"National Park" V. Bor "" (hereinafter - FSBI "National Park" V. Bor "") with a request to invalidate the results of certification, the order to dismiss him, as well as to recognize the dismissal as illegal, reinstate him at work in his previous position with a salary in accordance with staffing table and collect from the employer the average wage for the time of the forced absence.

Plaintiff's position

A. worked at the Federal State Budgetary Institution "National Park" V. Bor ”” from 01.03.2008 to 01.12.2013, where he held the position of the head of the park's security service. 09/01/2013 at the Federal State Budgetary Institution "National Park" V. Bor ””, an extraordinary certification was carried out, according to the results of which he was recognized as an employee inappropriate for his position. Further, due to the lack of vacancies, the plaintiff was dismissed by Order No. 255 / k dated 01.12.2013 on the grounds provided for in paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

A. believes that his dismissal is illegal, since the Order “On conducting an extraordinary certification” dated 01.08.2013 No. 21-K / O did not indicate what his violations were specifically expressed, what documents of law enforcement agencies confirm the facts of these violations. Also, the plaintiff was not familiar with the documents regulating the certification procedure and objective assessment criteria.

Defendant's position

Representatives of the defendant A.O., acting on the basis of a power of attorney, objected to the satisfaction of the claims, motivating their arguments by the fact that the attestation took place on legal grounds, in accordance with the regulations and all local normative acts that existed at the time of the attestation, with which the plaintiff was in advance familiarized.

Position of the court

On the basis of clause 3, h. 1, Art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer if the employee does not match the position or work performed due to insufficient qualifications, confirmed by the results of certification. At the same time, dismissal on this basis is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health conditions.

Part 2 of Art. 81 of the Labor Code of the Russian Federation stipulates that the certification procedure is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of employees.

Compliance of actually performed duties and qualifications of employees with the requirements job characteristics is determined by the certification commission in accordance with the regulation on the certification procedure applied in the organization.

Regulations on the certification of employees of the Federal State Budgetary Institution "National Park" V. Bor ””, approved on February 1, 2013, established the grounds for an extraordinary certification with the determination of the procedure and conditions for certification of employees of a budgetary institution.

As follows from the materials of the case, A. was dismissed on 01.12.2013 from the post of the head of the security service of the FSBI National Park V. Bor ””, due to the inadequacy of the position held due to insufficient qualifications, confirmed by the results of certification on the basis of clause 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The plaintiff is familiar with the order of dismissal: his signature is on the order of dismissal dated 01.12.2013 No. 255 / k.

The court found that the plaintiff, having a special education, appropriate work experience, having completed training in refresher courses, at the time of certification could correspond to the position held.

The employer, in connection with the revealed facts of illegal felling of forest plantations and theft of timber on the territory of the park in the quarters assigned to the plaintiff, by order of the Federal State Budgetary Institution "National Park" V. Bor ”” dated 01.08.2013 No. 21-K / O, an extraordinary certification of employees was appointed, based on the results of which the certification commission made a decision on A.'s inconsistency with the position held. This was the basis for terminating the employment contract with him. The attestation results were formalized by the minutes of the attestation commission meeting dated November 24, 2013 No. 38p, by order of the Federal State Budgetary Institution "National Park" V. Bor ”” “On the results of certification of employees of the national park” dated November 25, 2013 No. 26-K / O.

The date of the extraordinary certification of employees, the composition of the certification commission, the lists of employees subject to certification, as well as the plan of measures for the preparation and conduct of certification were approved by the order of the defendant dated 10.08.2013 No. 22-K / O, which the plaintiff got acquainted with on 11.08.2013, as evidenced by his signature on the mentioned document.

Based on the results of certification for employee A., a certification sheet was drawn up, which assessed his activities as inappropriate for the position held.

Court, refusing A. to satisfy the claim Having examined the evidence presented by the parties, guided by the above-mentioned legal norms, he came to a reasonable conclusion that the plaintiff's dismissal was made in accordance with the current labor legislation, and established that there were no violations of the procedure and procedure for dismissal by the defendant.

In this case, the court proceeded from the fact that the extraordinary certification was carried out by the employer in accordance with the Regulations on the procedure for conducting certification. The plaintiff was familiarized with it on the date set by the order of the head of the organization. In the process of attestation, the plaintiff was asked only questions related to his performance job responsibilities... The plaintiff was promptly notified of the upcoming certification and familiarized with the certification characteristics of the performance by employees of official duties. After familiarizing himself with the characteristics of the objections regarding the information contained in them, A. did not declare and did not indicate to the attestation commission additional information about my professional activity... In this connection, the arguments of the plaintiff in this part are considered by the panel of judges to be unfounded.

Judicial board agrees with the findings of the defendant's representatives regarding an objective assessment by the attestation commission of the business and personal qualities of the plaintiff, compliance with the procedure for conducting an extraordinary attestation, since these conclusions of the defendant's representatives are motivated, correspond to the circumstances established in the case.

Taking into account that the employer has no vacancies corresponding to the qualifications of the employee, the assessment of the attestation commission, the approval of the dismissal of the plaintiff with the trade union organization, the conclusion of the court on the legality of A.'s dismissal under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation is lawful.

Taking into account that the claim for A.'s reinstatement at work was denied, the court reasonably dismissed the claim to recover the average wage from the employer during the forced absence from work.

The judicial collegium cannot take into account the arguments that the attestation characteristic was not signed by the direct supervisor of the plaintiff, since official had the authority to draw up and sign the characteristics, delegated by the head of the Federal State Budgetary Institution "National Park" V. Bor ”” when organizing preparatory work for certification of 08/10/2013 No. 23-K / O.

Establishing the plaintiff's awareness of the provisions of the Regulation on the certification of workers, the court rightly took into account a copy of the register of familiarization of employees of the Federal State Budgetary Institution "National Park" V. Bor ”” with local regulatory documents, where the plaintiff signed with his own hand, in this regard, the arguments about the inadmissibility of accepting as evidence said document the panel of judges considers it unreasonable.

Based on the foregoing, after hearing the positions of the plaintiff and the defendant, the conclusion of the prosecutor of the prosecutor's office, checking the case materials, discussing the arguments and objections of the prosecutor regarding them, the panel of judges decided to refuse the claim to citizen A..

Second example shows us a different picture of the solution to the litigation regarding a dismissed employee who has not passed certification.

So a former employee medical institution LLC "M" Yu went to court with claims against its former employer on recognizing her dismissal as illegal, reinstating her at the workplace in her previous position, as well as demanding to collect from the employer the average wage for the time of forced absence and pay compensation for moral damage in the amount of fifty thousand rubles.

Plaintiff's position

Yu went to court with the above requirements, based on the fact that her dismissal was unlawful. The plaintiff motivated her arguments by the fact that the certification commission was created by the decision of the head of this medical institution from doctors of other specialties working in the same institution. At the same time, the validity period qualification category Yu is not over.

Defendant's position

The defendant objected to the claims, referring to the fact that the extraordinary certification is not prohibited by law. By the employer this certification was prepared in accordance with all norms and rules in accordance with labor laws.

Position of the court

The judicial board, after hearing the arguments presented by the plaintiff and the defendant, having carefully studied the materials of the specified case, decided to recognize the dismissal of the doctor whose qualification category had not expired, based on the results of the attestation conducted by the attestation commission created by the decision of the head of the medical institution from doctors of other specialties working in the same institution, illegal.

An employment contract may be terminated by the employer, including in the event that the employee does not match the position held or the work performed due to insufficient qualifications, confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code of the Russian Federation). At the same time, the procedure for conducting certification is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of employees (part 2 of article 81 of the Labor Code of the Russian Federation). If certification has not been carried out, the employer is not entitled to dismiss the employee on this basis (clause 31 of the Resolution of the Plenum The Supreme Court RF of March 17, 2004 No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation" (as amended on September 28, 2010)).

Medical workers have the right to basic guarantees provided for by labor legislation and other regulatory legal acts of the Russian Federation, including to undergo certification to obtain a qualification category in the manner and within the time frame determined by the authorized federal body executive power(Clause 4, Part 1, Article 72 of the Federal Law of November 21, 2011 No. 323-FZ "On the Fundamentals of Health Protection of Citizens in the Russian Federation" (as amended on July 21, 2014; hereinafter - Federal Law No. 323-FZ)). Consequently, the timing of the certification cannot be set arbitrarily.

Certification is carried out once every five years. The assigned qualification category is valid throughout the entire territory of the Russian Federation for five years from the date of the issuance of the administrative act on assignment (clause 5 of the Procedure and terms of passage health workers and pharmaceutical workers of certification for obtaining a qualification category, approved by Order of the Ministry of Health of Russia dated 04.23.2013 No. 240n (hereinafter referred to as the Procedure)).

Approval of the procedure for attestation of specialists with higher and secondary medical education, for assigning them a qualification category belongs to the competence of the Ministry of Health of Russia (clause 12, part 2 of article 14 of Federal Law No. 323-FZ, clause 1 of the Regulation on the Ministry of Health of the Russian Federation, approved by Decree of the Government of the Russian Federation of 19.06.2012 No. 608 (in ed. of 07/16/2014)).

The procedure for attestation of medical workers does not provide for the right of the head of a medical institution to create an attestation commission by his own order, since the defendant is not a public authority and is not empowered to establish the procedure for attestation by medical workers and, accordingly, was not entitled to issue the relevant local acts.

The attestation commission must include specialists with high qualifications and knowledge necessary to conduct a qualification exam in the specialties of certified persons (clauses 14, 17 of the Procedure).

From the above it follows that in this case the certification commission was created by the decision of a person who does not have the appropriate competence, the timing of the certification was violated, there were no persons in the commission who had the same specialty as the person being certified, that is, persons who have the necessary knowledge for assessing the qualifications of the attested person. Thus, the dismissal of the doctor in this case was made without a proper certification and is illegal.

Court statement

The judicial board ruled: the claim of citizen Yu. satisfy in full... Recognize the dismissal under clause 3 h. 1. Art. 81 of the Labor Code of the Russian Federation, it is illegal to restore a former employee of LLC "M" in his previous position with the same salary according to the staffing table. To recover from the defendant in favor of the plaintiff the average wage for the time of the forced absence, as well as to pay compensation for moral damage in the amount of fifty thousand rubles.

As you can see from the above court decisions, in the first case, the employer acted within the framework of his authority, scrupulously observing all the rules, therefore the employee's claims were not satisfied by the court. In the second case, the employer grossly exceeded his authority, which served as the basis for satisfying the claim in full, including the claim for compensation for moral damage.

A. A. Panova, lawyer, head of personnel service