Dismissal for inadequacy of the position in 2020

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.

Dismissal procedure

Step-by-step instructions on how to fire an employee for inadequacy for the position held are as follows.

Step 1. Document the discrepancy

Non-compliance with qualification requirements must be documented through certification. We carry out certification in the manner prescribed by the regulations on it adopted by the employer.

Step 2. Offer vacancies

After the certification has been carried out, and its result turned out to be unsatisfactory, and it is properly documented, it is necessary to send the employee an official notice of non-compliance with the qualification requirements with an offer to move to another, less qualified position, if there is one in the organization.

Example notification:

Dear Pavel Petrovich!

On February 5, 2020, a meeting of the certification commission was held to assess the degree of compliance of your qualifications with the requirements of the position you occupy (minutes of the meeting of the certification commission dated 02/05/2020). As a result of the meeting, the commission decided that you are not suitable for the position of senior sales manager, which was confirmed by the results of the certification (order of the General Director of PION LLC dated 02/09/2020 No. 23).

Guided by Part 3 of Art. 81 of the Labor Code of the Russian Federation, we offer you a transfer to another permanent job at PION LLC - to the position of a security guard with a salary of 15,000 rubles.

We kindly ask you to inform us of your consent to the transfer or refusal of it in writing by 02/17/2020 inclusive.

General Director _____________/Voronov A.V.

I have read the notice and received a copy

Senior Sales Manager _____________/Petrov P.P.

Step 3. Formalize the refusal

Any transfer to another position is possible only with the written consent of the employee; if he does not agree, the refusal must also be made in writing. The notice to the employer must indicate the deadline for providing the response and its form.

Step 4. Prepare the order

When an official written refusal is received, we proceed to the immediate termination of the employment contract; dismissal for non-compliance with qualification requirements is formalized by an appropriate order signed by the head of the organization. The order states that the employee is not suitable for the position, this is confirmed by the results of the certification, and a refusal to transfer is recorded.

If the person being dismissed is a member of a trade union, before issuing an order, it is necessary to seek a reasoned opinion from the trade union regarding the possibility of dismissal. This obligation of the employer is fixed in Part 2 of Art. 82 Labor Code of the Russian Federation.

Step 5. Fill out the work book

The work book indicates the grounds for dismissal:

“The employment contract was terminated due to the employee’s inadequacy for the position held due to insufficient qualifications, confirmed by the results of certification, paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.”

Step 6. Issue documents

On the last day of work, the dismissed employee is given a work book and other documents related to his work that he requests, is presented with the dismissal order against his signature, and the final payment is made. The following are subject to payment:

• salary, allowances and bonuses due for actually worked and paid time;
• compensation for unused vacation.

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.

Not always

It has already been said that sometimes it is possible to offer personnel a transfer to another position if a discrepancy has been identified for a particular position. At enterprises where this possibility is provided, the situation with dismissal is much more complicated than where the transfer does not take place. What is the main problem?

The thing is that, in accordance with the Labor Code of the Russian Federation, dismissal for the fact that an employee does not meet certain criteria can only be done in a situation where there is no possibility of transferring the personnel to another position. In other words, if a person could have been transferred to a new job within the corporation, but the employer decided to hide this fact, dismissal due to inadequacy for the position held may be considered illegal. More precisely, carried out in violation of the rules. If a transfer is envisaged, but it cannot be carried out due to lack of space, it is necessary to draw up an act with which the dismissed person becomes familiar. The latter must sign a notice stating that he is aware of the absence of available vacancies for transfer.

To protect the company, it is recommended to offer subordinates suitable vacancies for transfer. And in case of refusal, draw up a special act that will confirm that the employer previously tried to keep a position in the organization behind the scenes. Even if we are talking about a different position. The main thing is that the employee was suitable for the new vacancy. The presence of an act and a written refusal of a subordinate to transfer (usually we are talking about demotion) is an additional safety net for the employer. So, how to properly carry out the dismissal procedure?

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.

When is dismissal possible for inadequacy of the position?

In this case, it must be taken into account that in paragraph 3 of Article 81 of the Labor Code of the Russian Federation, an important clause is made - the employee’s inadequacy for the position or work held must be confirmed by certification results, according to which the employee’s qualifications are recognized as insufficient (that is, by the conclusion of the certification commission).

In other words, a subjective opinion about the employee of his manager, colleagues, business partners, etc. cannot be a basis for dismissal on this basis, the conclusion of a duly appointed certification commission is required, subject to the established certification procedure.

If the certification commission has recognized the employee’s suitability for the position held (the work performed), the employer does not have the right to dismiss the employee under clause 3 of Article 81 of the Labor Code of the Russian Federation.

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The procedure for conducting certification is established:

Labor Code of the Russian Federation and other regulatory legal acts containing labor law norms. Thus, Article 18 of the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” talks about mandatory certification of state civil servants; Decree of the President of the Russian Federation dated February 1, 2005 N 110 approved the Regulations on their certification. Article 49 of the Federal Law of December 29, 2012 N 273-FZ “On Education in the Russian Federation” provides for the certification of teaching staff, its procedure is determined by Orders of the Ministry of Education and Science of Russia N 276 of 04/07/2014 and N 293 of 03/30/2015.

In the letter of Rostrud dated April 30, 2008 N 1028-s, which is still relevant, it was explained, in particular, that the requirements for the qualifications of employees are determined by their job responsibilities. The fact that the qualifications of an employee and the duties he performs meet/does not meet the requirements of his job characteristics is established by the certification commission in accordance with the regulations on the certification procedure that is applied in the organization.

In this case, it is recommended to use the Qualification Directory of Positions of Managers, Specialists and Other Employees, approved. Resolution of the Ministry of Labor of Russia dated August 21, 1998 N 37.

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.

Entitled payments

As a result of dismissal, a person who becomes unemployed must receive a calculation from the accounting department, which includes:

• Earnings for all days up to the day of termination of the contract with the employer.
• Compensation for days of vacation that were not yet completed.

Additional payments, such as severance pay, are not provided for dismissal due to inadequacy of the position held.

Attention

Payment must be made on the day the order is issued or on the next business day thereafter. A delay in settlement may result in additional payments to the dismissed person as compensation for moral and material losses.

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.

Reasons for dismissal - lack of qualifications

The only reason for the dismissal of an employee due to inadequacy for the position he occupies is low qualifications. The lack of knowledge, experience and skills of such an employee can be confirmed and proven only at the certification of the enterprise, and nothing else. That's the order.

Calling an employee for certification must be preceded by any negative facts that allow one to draw a conclusion about his low professional training. For example, an organization’s accountant was found to have repeated cases of incorrect calculation of wages to employees, and a worker on an assembly line was found to have numerous cases of defective production. There should be a system in the identified negative facts. One negative act on the part of an employee is not enough to raise the question of his inadequacy. In the end, for a single violation he can be held accountable or recover financial damage caused to the company.

Procedure for dismissal

To carry out any dismissal for one reason or another, the employer must follow a certain sequence of personnel actions. If the requirements of the regulations are correctly followed, the dismissed employee will have no chance to challenge the dismissal and have it declared illegitimate. What kind of sequence of actions is this in case of dismissal caused by low qualifications of an employee? Let's analyze each action separately.

Carrying out certification

Maximum attention should be paid to certification. The organization creates an order defining the commission and its work plan, usually for a year. The order must specify the composition of the commission, indicating the chairman, secretary and each member: full name, position held and other regalia.

In order for the commission's decisions to be objective and fair, the participation of representatives from various departments and services of the company is mandatory. The commission makes decisions by a majority vote. Most often, at least 2/3 of voters. Options for decisions made may be as follows:

• corresponds to the position;
• does not correspond to the position;
• does not correspond to the position occupied, it is advisable to use it in a position with a smaller volume of work, etc.

Based on the results of examining the employee, the commission may also come to positive conclusions. For example, to a decision to award a bonus to the person being certified, send him for training, or promote him to a more prestigious position, which in practice is quite rare.

The document indicating the holding of the meeting is the protocol. It does not reflect all stages of the commission; it contains the signatures of all participants.

The main tasks of certification participants:

• give a fair assessment of the business qualities of the person being certified;
• identify employee potential;
• assess the existing qualifications and their compliance with the position being filled by the employee.

A certain package of documents is being prepared for certification. Most often, representatives of the personnel department are responsible for their completeness and quality of execution.

Collection of necessary documents

What kind of documents are these? First of all, these are papers characterizing the personality of the certified employee, his experience, education:

• service characteristics;
• a copy of the service record;
• copies of diplomas;
• personal file materials;
• certificate of existing periods of temporary disability during the year.

The following are documents that provide sufficient grounds to believe that the employee is low qualified:

• punishment orders;
• reports of violations committed by him;
• office notes.

If the consequences of a subordinate’s low qualifications are so dire that we are talking about dismissal, then the manager’s constant threats about the upcoming termination of the employment relationship should be reflected in the documents. Verbal warnings in the future will be difficult to prove, so the most effective means in this case are orders to bring the culprit to disciplinary liability and deprive him of his bonus.

The text of the certification must reflect all the details of the commission and the opinions of all participants. The secretary, as a rule, does not vote. The certified employee must familiarize himself with the decision made against signature.

Preparing a dismissal order

The next step towards dismissal after certification is the preparation of an order to terminate the employment contract with the employee. The basis for dismissal is the certification decision. That's how it's written in the order. For example, “Basis: certification decision No. 5 dated December 15, 2017,” indicating specific conclusions.”

The order is coordinated with all interested services. Mandatory:

• with the head of the company office;
• with a lawyer;
• with the chief accountant.

After the director of the company signs the order, he is announced to the dismissed person under personal signature. A copy of the order is issued to the employee on the same day.

Entry in the work book

After issuing the order, the personnel employee makes an entry in the work book of the dismissed person with reference to clause 3 of Article 81 of the Labor Code. This dismissal is considered one of the grounds related to the initiative of the manager. This is an unpleasant fact, however, the entry is made specifically for this item.

Along with the record of dismissal, data on the employee’s bonuses and awards must be recorded in the work book. Medals, for example, certificates of honor or gratitude, if there were any during the period of work in the company.

An important point is that the work book must be handed over on the last day of work of the dismissed person. The director of the company is responsible for all delays. Even if the dismissed person did not hand over material assets belonging to the company or did not sign the bypass sheet, the work book must be handed over to him on the day of dismissal, and not a day later. If the dismissed person does not appear at the personnel office to receive a work permit, then he must be sent a notification letter about the need to come for these purposes, or give personal consent to send the book by postal order.

Deadlines for dismissal

The classic period for terminating an employment relationship is two weeks. During this period, from the point of view of the legislator, the dismissed employee must have time to take care of his subsequent employment. Applicable to dismissal due to low qualifications, the recommended period is the same. Ideally, immediately after certification, the employee should be given notice of dismissal on this basis. Subsequently, after the expiration of the two-week period, it is not at all necessary to withdraw the resignation letter from the employee. Dismissal without an application in this case will be completely legitimate, provided that the employee has signed the notice. If he refuses to do this, then an act is drawn up in the presence of at least three people.

Payments during dismissal under the article for non-compliance with the position held

Mandatory payments that are always paid, regardless of any circumstances:

• compensation for vacation due and unused in the current year. It is paid in proportion to the time worked by the dismissed person in the year of termination of the contract;
• compensation for unused uniforms. Calculated according to the logistics service statements;
• payment for processing, if any.

There is no need to talk about a bonus in the amount of two salaries in relation to this basis for dismissal, because the dismissal is associated with the employee’s low qualifications and failure to fulfill his job duties at the proper level.

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 concentrate 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.

Concept of job inadequacy

Every person who gets a job in any company for a certain position must have certain skills, knowledge and abilities in order to easily cope with the tasks assigned.

Only in this case will he be suitable for the position. If a person does not have the necessary qualifications, then he will not be able to perform management tasks. This will lead to poor quality work results.

For such violations, the employer may subject the employee to disciplinary punishment in the form of dismissal.

Each person must regularly improve their qualifications, for which it is necessary to take advanced training courses, attend various trainings, or even undergo training in suitable organizations with a training license.

If a person cannot cope with the job, then the head of the company may offer him a transfer to an easier job, which will certainly lead to a decrease in earnings.

It is possible to prove that a person is not suitable for the position held only after certification. It is based on its results that the qualifications and knowledge of the employee are determined.

The criteria by which the qualifications of employees are assessed must be enshrined in the company’s internal documentation, and specialists must familiarize themselves with this information before employment.

Some employees cannot be fired even if they have poor performance appraisal results.

These include the following specialists:

• citizens on sick leave or on vacation;
• female workers with children under three years of age;
• single parents;
• pregnant women;
• minor workers;
• young specialists hired immediately after graduation from an educational institution;
• persons who have more than three other dependents, but they must be the sole breadwinners in the family.

How to certify an employee for suitability for the position held? Watch the video:

In fact, it is quite difficult to fire a person who is not suitable for his position. To do this, you will have to prepare a lot of evidence and documents. Often this situation leads to conflicts and litigation.

What evidence is needed?

An employer planning to dismiss a specialist who cannot cope with his main responsibilities must prepare certain evidence that the dismissal of such a citizen is really required.

How is sick leave processed if an employee is on vacation? See here.

The level of qualification is determined on the basis of several criteria, which include existing education, work experience in a specific field of activity, the category of the worker, his class and other parameters.

All employees working in the same position are subject to the same requirements.

To obtain evidence that an employee is unsuitable for a particular position, the following evidence is collected:

• unsatisfactory results of certification, which must be carried out taking into account state standards and norms;
• studying the awards and merits of an enterprise employee, since if they are absent, this indicates that the person was unable to distinguish himself at work;
• memos from department heads that prove that a person is not performing his duties well, and therefore the result of his work is of poor quality;
• a medical certificate issued by employees of a medical organization after an examination, which confirms that for health reasons a citizen cannot work in a specific position.

Conclusions after personnel certification.
Photo ppt-online.org Each company can develop its own standards relating to the appearance of employees, their state of health, physical indicators or other parameters.

If any deviations are identified, this may become grounds for dismissal, but this information must be specified in the employment contract.

But termination of the contract must be justified, since otherwise such dismissal is easily challenged by a citizen in court.

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 labor 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 can, 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.

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How to prove non-compliance?

In order for dismissal under Article 81 of the Labor Code of the Russian Federation to become a lawful action, the employer must prove that the employee is really not suitable for a specific position. This can be done by organizing certification, which will reveal the true level of professional training of employees.

Read here what to do in case of illegal dismissal.

Certification of an employee should be carried out only in his presence. In other words, the commission does not have the right to evaluate the professional level of an employee.

The qualification level is checked by the certification commission and consists of the following levels:

• Studying the documents on the basis of which it is verified how well the employee copes with his job responsibilities;
• Listening to the speech of the employee and his boss;
• Summarizing;

To sum up, one of the following conclusions is reached:

• The employee is suitable for the position held;
• The employee is suitable for the position held, subject to the fulfillment of certain recommendations for improving the level of qualifications;
• The employee is not suitable for the position held;

The reason for the dismissal of an employee under the article of inadequacy for the position held must be proven and justified, and also formalized in the appropriate manner.

The certification results are entered into the appropriate certification sheet, which, after review, is signed by the employee and the employer.

Read the following article about what to do if the certification result is unsatisfactory.

Justifications in the Labor Code of the Russian Federation

The law states that an employee can be dismissed from a position, without taking into account his consent or desire, if his qualifications are not suitable for performing the labor functions that this position provides, which must be confirmed by the official certification procedure (Clause 3 of Article 81 of the Labor Code of the Russian Federation).

In paragraph 1 of Art. 195 of the Labor Code of the Russian Federation defines the concept of professionalism of workers and provides requirements for assessing its level.

IMPORTANT! Specific compliance parameters are developed directly by the employer for each position in his staffing table, but they should not conflict with the qualification characteristics given in official documents, in particular, in the tariff and qualification reference book.

Documentary evidence of service non-compliance

In order to dismiss an employee for professional inconsistency, it is necessary to comply with all legal formalities and pay attention to documentary support of this process. This will avoid legal disputes and fines for illegal dismissal.

It is worth considering that one protocol from the certification commission, in which a conclusion is made regarding service inconsistency, is not enough for dismissal. If the dismissal case goes to court, then other evidence will be considered that confirms the validity of the commission’s conclusions.

Documentary evidence of non-compliance may include:

• a memorandum (or memo) drawn up by the employee’s manager - an official document that serves to inform senior management about the employee’s failure to perform (poor performance) of his official duties;
• an act signed by at least two witnesses;
• complaints from customers (if the company operates in the service sector);
• expert assessments;
• test results (if provided);
• report on the results of identifying service discrepancies;
• job description for the employee.

As for the lack of a document on special education, it does not always matter. So, for example, a designer without a diploma can cope with his work without specialized education, while a doctor cannot, and his lack of a diploma can become a good reason for dismissal.

A mandatory document for the dismissal of an employee under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation is a report on the results of certification. Other documents are not mandatory, but can be used as evidence of the validity of dismissal.

How does dismissal happen?

Even before making a decision to terminate the employment relationship, the manager must comply with the mandatory rule of the Labor Code of the Russian Federation - transfer him to another position, if such a possibility objectively exists at the enterprise. The position for such a transfer must correspond to the level of qualifications confirmed by the results of certification, as well as labor protection rules and working conditions for certain categories of citizens. Transfer to another place of work or another position is formalized by an additional agreement to the employment contract and an administrative act of the director of the institution.

If transfer to another place of work is impossible, the head of the institution has the right to implement the dismissal procedure. Step-by-step instructions for terminating an employment relationship under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation is as follows:

• the employee gets acquainted with the results of the certification and may request an independent knowledge test or challenge the conclusion;
• departmental instructions or local acts may provide for re-certification - as a rule, the period for its completion is two months;
• an order for dismissal is issued due to inconsistency with the position - citizens are also familiarized with the contents of this document upon signature;

Sample order of dismissal due to inconsistency with the position held
; order of dismissal due to inconsistency with the position held

• the specialized services of the institution make accruals for payments due to the employee on the date of dismissal;
• The personnel service fills out the work book and issues it against signature on the citizen’s last day of work (if the employee refuses to receive the document in person, you can send it by mail).

Sample entry in the work book about dismissal for non-compliance with the position held

How long before a citizen is notified of the upcoming termination of employment? The law does not contain an exact period for such notification. However, before dismissal, measures must be taken to find a place for transfer, notify the representative body of employees, calculate monetary remuneration, etc. Therefore, compliance with all formalities may take from several days to several weeks. When recertifying, this period automatically increases.

When dismissing on this basis, one must take into account the prohibitions and restrictions regulated by the Labor Code of the Russian Federation. In particular, it is impossible to terminate labor relations with the following categories of citizens:

• pregnant women;
• persons who are not subject to certification to the villa of law (for example, minor children);
• employees with family obligations - you cannot fire a woman with a child under three years old, a single mother with a minor child, the sole breadwinner of a disabled person or a child under three years old in the family, etc.

Note! The employer may not be aware of these preferential circumstances. In order to exercise his right to keep his job, an employee must provide supporting documents - a certificate of pregnancy, birth certificate, etc.

In addition, upon dismissal, the employee is provided with days of unused rest, or appropriate monetary compensation is paid (by decision of the manager). Severance pay will not be included in payments, unless otherwise provided by internal documents of the company

Inconsistency with the position or qualification level does not deprive the right to receive monetary remuneration and other mandatory payments. In addition, upon dismissal, the employee is provided with days of unused rest, or appropriate monetary compensation is paid (by decision of the manager). Severance pay will not be included in payments, unless otherwise provided by the company's internal documents.

Read on the topic: Articles of the Labor Code of the Russian Federation regulating dismissal at the initiative of the employer

The specialist can challenge the fact of dismissal on this basis, or the results of the certification. Even before the actual dismissal, you can file a complaint with a higher-ranking official, contact the labor inspectorate or the prosecutor's office. If the procedure for terminating the employment relationship was violated, you can file a claim in court. To do this, you need to take into account the limitation period - no later than one month from the date of receipt of a copy of the order or issuance of the work book.

Basics of the Labor Code of the Russian Federation

Inconsistency with the position held may be grounds for termination of the employment agreement at the initiative of the organization's management. The Labor Code in paragraph 4 of part 1 of Article 81 contains a description of such an opportunity for the employer, but with the caveat of an important nuance - the basis for the discrepancy must be the insufficient level of qualifications of the employee, proven by certification results.

If we act in accordance with the law, then, first of all, it is necessary to establish the concept of a sufficient level of qualifications for each position. Such a procedure should be carried out in a timely manner, with a full staff, not urgently and without changing the regulatory framework of the organization only in order to fire a specific employee. It is impossible to dismiss a person from work for inadequacy of the position if the insufficiency of his professional qualities has not been confirmed in a certain manner.

If an employee has done something wrong, causing a serious problem in production, for example, the release of a defective product, that is, he will be deservedly fired, it is necessary to use a different article of the Labor Code of the Russian Federation.

Dismissal due to non-compliance with labor implies the absence of conscious guilt of the person being dismissed and is a certain step intended to optimize activities in the organization.

Having established the criteria, you should indicate in the internal documentation of the enterprise the procedure for checking an employee’s suitability for the position he occupies, that is, certification. The solution to the problem should not contradict legal norms, i.e. the decision must be made objectively, and only competent employees must be included in the commission.

Once a staffing unit has been determined to be non-compliant, all preliminary procedures and document requirements are followed. Do not forget that there are categories of employees whom the law protects from losing their job on this basis, although in this case it is possible to transfer the employee to another job position with a lower salary.

What does the law say?

The Labor Code of the Russian Federation clearly states that non-compliance with the position held means that the employee lacks the necessary knowledge and skills to perform official duties. In some cases, this is not the employee's direct fault. He may not be able to do the job due to health reasons.

The management of the enterprise does not have the right to terminate the employment agreement with a young specialist, relying on Article 81 of the Labor Code of the Russian Federation. Since the citizen has just settled and, accordingly, does not yet have the necessary skills. The exception is employees who do not have a specialized education, as a result of which the company incurs significant losses. In other situations, dismissal for inadequacy of the position held is quite possible.