Article TC: inconsistency with the position held

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

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

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

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

It depends on the qualifications of the employee:

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

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

For this we use:

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

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

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

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

As a result of certification it can be established:

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

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

Attestation sheet: concept and rules of preparation

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

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

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

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

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

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

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

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

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

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

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

The procedure for dismissal on this basis

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

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

The employee must receive:

• wages for hours worked;

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

How to challenge an employer's decision?

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

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

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

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

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

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

What are the general provisions?

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

Who can be fired for inadequacy of the position?

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

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

What are the grounds for dismissal?

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

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

Who cannot be fired for being unsuitable for their position?

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

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

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

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

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

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

How is certification carried out?

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

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

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

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

What can an employer do after certification?

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

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

What is the procedure for dismissing an employee?

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

Algorithm of action during the dismissal process

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

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

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

Cases in judicial practice

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

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

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

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

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

From a legal point of view, dismissal of an employee due to inconsistency with the position is a rather dubious procedure. It is very difficult to prove an employee’s inadequacy for the position he occupies - this is due to the specifics of the work and the field in which he works.

General provisions

As one of the grounds sufficient for the employer to terminate cooperation with a specialist, the Labor Code names the employee’s inadequacy for the position held or the work he performs due to his insufficient qualifications, confirmed by certification results. This norm is established by Art. 81.

Job inadequacy is defined as the employee's inability to properly perform the assigned job. This is expressed in the fact that the work does not have a satisfactory result, labor standards are violated, the products of such a specialist, if he works at the enterprise, are completely defective.

However, insufficient qualifications are a reason for which, in essence, there is no fault of the employee, just as it is not his fault, for example, in his state of health. These two reasons are only a criterion by which one can judge that a person does not correspond to the position. Dismissal with this wording is not only a complex procedure, it is also quite dubious in a legal sense. To be legal, it requires compliance with a huge number of conditions and sufficient grounds in the order when dismissing an employee for inadequacy of the position held.

If you still plan to fire an employee precisely for this reason, then first determine the category to which he belongs. There are several groups of workers who cannot be fired for this reason. For example, according to Art. 261, it is impossible to dismiss a pregnant woman on this basis, except in cases where the enterprise is dissolved. That is, no matter how low the competence and qualifications of the expectant mother are, she will continue to work.

The management also cannot fire a specialist who has no experience for this reason, due to the fact that he has only recently worked. That is, a young worker, a specialist who came to production after training, as well as minors remain on the company’s staff, even if they lack qualifications. Moreover, a specialist cannot be fired, even if he does not have a diploma of special education, if by law it is not necessary to have one. However, if education is required, but the employee does not have it, and production suffers, then dismissal is quite possible. You also cannot fire someone who is on vacation or temporarily unable to work. This general rule from Article 81 is applicable in this case.

Marriage and labor standards

Insufficient qualifications - this concept must have some kind of quantitative expression. For example, the lack of qualifications of a mechanic, assembler or blacksmith can be expressed in the fact that he allows systematic defects, or does not fulfill the norm. But then there must be clearly established standards and GOSTs by which this can be judged, and which do not contradict the law.

How to determine inconsistency in a profession whose results are not quantifiable, especially when it comes to clerks and people in intellectual professions? The products of their labor are not easy to detect, especially if the person performs job duties and does not violate the organization's routine. Here the quality of executed orders should be analyzed. If a person, in general, copes with them and has no complaints, it is almost impossible to justify his incompetence.

Offer another job

The Labor Code of the Russian Federation allows this dismissal with one fundamental reservation, whether the enterprise has another position suitable for this employee, and whether it was offered to him. Clause 3 of Article 81 states that such dismissal cannot be considered legal if the employee has not received such an offer, even if the new job is lower in position or less paid. In paragraph 31 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, it is stated that the directorate must provide evidence of the employee’s refusal to transfer to this position or the absence of a vacancy in such positions.

Here it should be clarified that the job must be suitable for the employee, that is, it is not enough to offer the secretary a position as an electrician if he does not have the skills or education for this. But if there were relevant positions, but they were abandoned, you can dismiss them. Moreover, the employee is not at all obliged to agree to it.

Union participation

The dismissal procedure becomes significantly more complicated in case of inconsistency with the position held, if a person who is a member of a trade union is dismissed, since Part 2 of Art. 82 of the Labor Code of the Russian Federation clearly stipulates the participation of an elected trade union body in this process. In this case, the procedure goes like this: the management sends a draft order and copies of documents that justify the decision to dismiss to the organization for consideration. From this moment on, the trade union body has a week to make a decision on this issue, justify its opinion and send it in writing to the employer.

If the employer does not consider the union's opinion motivated, he may not pay attention to it. Moreover, the article does not specify which opinion should be considered unmotivated. If the parties do not agree on their decisions, they must hold consultations within three days, the results of which are documented in the form of a protocol. If there is no agreement at this stage, the employer has 10 days to make a final decision, after which it is up to the state labor inspectorate. She may decide to reinstate the employee to his position.

How to determine lack of qualifications?

For this purpose, there is a Qualification Directory of Positions (JSC), which is designed to systematize the work of personnel management and regulate labor relations. Of course, it does not have a verbatim listing of all modern positions, but using it involves drawing analogies between similar positions.

The use of the directory should be considered using specific examples. Let's say a secretary has been working at a company for two decades. At some point, the director orders him to learn a computer at his own expense and threatens him with dismissal for not having the appropriate qualifications. However, the secretary uses the computer quite successfully; he is only unfamiliar with some complex programs.

p>First, let’s figure out what exactly the position of this secretary is called, and what duties he must perform. The ECSD lists several secretarial positions. For example, the manager's secretary, according to the directory, must use a computer to present information to superiors, collect and process it, and also print for the manager. That is, the handbook does not specify which programs the secretary should use. Moreover, when applying for a job, the main requirement for someone working with a computer is knowledge of the MS Word package.

If a company, for some reason, decides to switch to other software products and needs retraining of personnel, then Art. 196 of the Labor Code of the Russian Federation clearly obliges the employer to retrain personnel for their needs and improve their qualifications. From this we can conclude that qualifications that were acceptable when the secretary was hired, and became insufficient over time, cannot unconditionally be considered a reason for dismissal. The employer has the right to improve this qualification not at the expense of the employee, but at the expense of the organization.

Employee certification

Certification is the most difficult, ambiguous and “slippery” moment of the procedure for dismissing an employee whose qualifications do not meet the required ones. The non-compliance must be proven by the certification commission, which is formed at the enterprise, and based on the results of the certification, it creates a special conclusion. The procedure for the creation and operation of the commission is approved by the directorate of the organization, if there are no special government acts regarding employees. For example, employees of unitary state enterprises are certified according to their own program, approved by the Government of the Russian Federation dated March 16, 2000 N 234 (SZ RF. 2000. N 13. Art. 1373). Civil servants go through it, guided by Decree of the President of the Russian Federation of 03/09/1996 N 353 (SZ RF. 1996. N 11. Art. 1036), etc.

The question of creating a commission is also ambiguous, the problem is who should participate in it? After all, non-governmental organizations often simply do not have provisions on the certification commission in their documentation, and without this it is impossible to create one. In addition, a small organization simply will not have specialists who could become members of this commission. For example, how to make a conclusion about the insufficient competence of an economist who is the only one on the company’s staff?

When considering a case in court, the question will arise: how could the members of the commission decide on its inconsistency if their own competence is lower than that of the defendant? A video engineer, electrician or system administrator can hardly judge the knowledge of an economist. Therefore, most likely such a commission will focus on the personality of the person being certified, complaints against him or other factors that are not the subject of discussion at the specialized commission. As a result of such a trial, a biased assessment of the employee’s qualifications will be established, which will make it possible to recognize its conclusions and decisions as null and void. However, upon dismissal, the inconsistency with the employee’s position in the document remains in the document, since the court cannot change it.

Of course, this does not apply to those cases when it is necessary to dismiss a law enforcement officer, customs service or civil servant for this reason. In this case, laws approved by the state apply, methods and clear regulations for the actions of the certification commission have been developed, since such employees undergo certification once every 4 years.

conclusions

• Dismissing an employee, even if he does not correspond to his position, (and especially an employee of a non-governmental organization) in compliance with all legal norms is a risky, time-consuming and partly futile matter, since it can be easily challenged legally.
• The decision to dismiss is ultimately made personally by the head of the company, therefore, he is fully responsible for it. Members of the commission who participated in the illegal dismissal cannot be held accountable.
• Since the incompetence of an employee is most often expressed in failure to comply with standards and production of defects, it can practically be regarded as a failure to fulfill job duties. This is a disciplinary offense and, therefore, it falls under Art. 192 – 193 of the Labor Code of the Russian Federation on the imposition of penalties. An employee who has several penalties can be dismissed using clause 5, part 1, art. 81 Labor Code of the Russian Federation.
• For an employee who has a number of penalties, the employer may, out of a sense of humanism, give a choice between dismissal “under the article” or settlement “at will” (Article 78 of the Labor Code of the Russian Federation), especially since this option will be more gentle for both parties. The employee does not receive a stain on his reputation, and the employer avoids potential troubles and difficulties with the dismissal procedure.

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

Employee qualification

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

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

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

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

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

We carry out certification

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

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

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

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

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

Certification results

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

For your information. In the clarifications of the Ministry of Labor on the application of professional standards dated 04.04.2016, it is noted that when applying qualification reference books and professional standards, persons who do not have special training or work experience established in the section “Qualification Requirements”, but have sufficient practical experience and perform efficiently and in the full extent of the official duties assigned to them, on the recommendation of the certification commission, they are appointed to the appropriate positions in the same way as persons with special training and work experience.

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

Limitations during certification

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

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

Dismissal procedure

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

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

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

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

What do you need to know?

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

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

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

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

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

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Dismissal for unsuitability for the position held is carried out at the initiative of the employer. Find out on what basis you can confirm the legality of terminating an employment relationship with an employee.

From the article you will learn:

What does the phrase “inadequacy for the position held” mean?

The grounds for dismissal of employees are clearly defined by labor legislation. The most controversial issue of termination of employment relations is for inadequacy of the position held. The employer is faced with the question of how to evaluate an employee so that such wording can be applied. If the assessment is incorrect, the employee will be able to go to court and protest such type of dismissal.

Dismissal for non-compliance with the position held is carried out on the basis of clause 3, part 1 of Article 81 of the Labor Code of the Russian Federation. The employer has the right to terminate the employment relationship on his own initiative if:

• certification was carried out, on the basis of which it became clear that the employee was not suitable for the position held;
• there are no available vacancies in the organization for transfer;
• the employee refused to be transferred to a vacancy that corresponded to his skill level.

It is necessary to consider whether the employee belongs to categories that cannot be dismissed for inadequacy for the position held. If the question concerns the termination of labor relations on the basis of clause 3, part 1 of Article 81 of the Labor Code of the Russian Federation, written consent must be obtained from the elected body of the primary trade union organization. Only if all conditions are met will the dismissal be legal and justified.

If the minutes drawn up after a meeting of the certification commission indicate that the employee does not correspond to the position held, this will not be enough for dismissal. The court evaluates not only the results of the certification, but also considers other evidence confirming the legality of termination of the employment relationship at the initiative of the employer.

Official inadequacy for the position held must be proven by facts in the form of:

1. supporting documents;
2. a memorandum drawn up by the employee’s immediate superior;
3. an act signed by two witnesses;
4. customer complaints when it comes to the provision of services.

In addition, it is necessary to submit to the court expert assessments, test results, reports on work to identify inconsistencies with the position held, and a job description.

It is worth considering that the absence of a document confirming the employee’s special education serves as grounds for dismissal for inadequacy of the position held only if the diploma is really important for performing the relevant work. For example, a doctor cannot work without a document that officially confirms his acquired profession. But a designer who does not have a diploma, but does an excellent job with the assigned work, cannot be fired on this basis.

Dismissal of an employee for non-compliance with the position held, taking into account the new rules

How to fire an employee for unsuitability for the position held, taking into account the new current rules? Relatively recently, the basis for recognizing inadequacy for the position held was considered not only carried out certification, but also receiving medical contraindications to perform the relevant work. If an employee was assigned a working disability group, this provided grounds for termination of the employment relationship at the initiative of the employer.

Such norms were so ambiguous that almost always dismissal on the specified grounds ended in subsequent legal proceedings. The main reasons were stated that the medical report received by the employee did not specifically indicate the types of work that the employee should not perform. Which gave grounds to refer to the illegality of deprivation of the opportunity to work.

Legislators took this into account and radically changed the approach to terminating employment relationships for medical contraindications. The article of inadequacy for the position held according to a medical report does not allow the employee to be fired. The employee is transferred to a position for which the performance of duties is not contraindicated due to health reasons (Article 73 of the Labor Code of the Russian Federation). The transfer is carried out on a temporary or permanent basis.

How to fire an employee for unsuitability for the position 2019

The dismissal procedure for an employee’s inadequacy for the position held is carried out in accordance with current legislation. The main purpose of preparing all documents is to confirm and record the fact of non-compliance. It is worth considering that an employee’s inadequacy for the position held is determined only using the results of certification. No other confirmation mechanisms are considered. And the rest of the list of documents refers to auxiliary ones.

The legislation says little about the certification procedure itself. Basically, by-laws regulate certification in municipal, state institutions, structures and departments. In commercial organizations, all issues are regulated local regulations.

Howconduct certification in order to dismiss for non-compliance with the position held:

Create a commission	Only members of the commission consisting of at least three people can draw up a report on the results of the certification
Evaluate the work taking into account all the circumstances	If the employee worked flawlessly, the employer or immediate supervisor did not previously reprimand the employee or apply disciplinary sanctions, making a decision after certification on non-compliance is considered unfair
Make a decision	It must be taken into account that the decision on dismissal is made by the employer, and not by members of the certification commission.

In order for a local regulatory act with certification results to have legal force, the document must be developed and approved in advance, and properly executed. Employees are informed of the decision of the certification commission against receipt.

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Offer other vacancies available in the organization

The inadequacy of an employee for the position held is determined on the basis of a decision made by members of the certification commission. Dismissal under the relevant article cannot be made until the employer offers the employee all available vacancies at the enterprise. This may be a position with lower pay and qualification requirements. After receiving a written refusal, the issue of dismissal is considered.

Which categories of employees cannot be fired:

1. pregnant women;
2. single women raising children under 14 years of age;
3. mothers with children under three years of age;
4. The same rules apply to fathers, guardians, and trustees.

When considering the results of certification, it is necessary to take into account that at the legislative level, these categories of employees are not subject to dismissal at the initiative of the employer for non-compliance with the position held (Articles 261, 264 of the Labor Code of the Russian Federation).

Taking into account trade union opinion

Before dismissing an employee due to inadequacy of the position held, it is necessary to obtain the consent of the trade union elected body or a higher trade union if the organization does not have a primary trade union organization.

In 2019, no changes were made to Article 81 of the Labor Code. Accordingly, the dismissal procedure remained the same. The following documents will be required for dismissal:

1. regulations on certification;
2. relevant orders on conducting certification in the organization;
3. schedule;
4. sheets, certification protocols;
5. reports on non-compliance with the position held;
6. written evidence of job offer;
7. written refusal;
8. dismissal order.

A corresponding entry is made in the work book