Certification at an enterprise serves to assess the quality of skills and functional abilities of an employee necessary for him to professionally perform his job duties. Dismissal based on the results of certification occurs when the employee does not meet the qualification requirements, as confirmed by the commission in writing. Let's consider how and in what cases you can fire an employee who has not passed the certification.
Dismissal of employees based on certification results
The conditions that an employee working at an enterprise must correspond to the position held are contained in the Labor Code of the Russian Federation.
The provisions of Article 81 establish that dismissal is possible after certification, at the initiative of the employer of an employee who has not confirmed his qualifications based on the results of certification.
You just need to be very careful about the issue of formatting the results of a knowledge test, otherwise they can easily be challenged.
Certification rules
In order to legally dismiss an employee during certification if he failed to meet the certification requirements, the procedure itself must be properly prepared and carried out in accordance with the Regulations on certification and the norms of the law.
- An attestation commission must be convened.
- Certification can be carried out both orally and in writing.
- All employee answers must be entered on a specially designed certification sheet.
- The employee must be familiarized with the completed certification sheet against signature.
- In the minutes of the commission meeting, there should be details for each employee, the result of the vote on which a decision is made for each individual employee.
- In accordance with the conclusion of the certification commission, a mark is placed on whether the employee corresponds to the position he occupies or not.
- Certification must be regulated by a special Regulation adopted by the enterprise.
The conditions for certification are reflected in the Regulations. It may contain other wording about the certification results. For example, you can enter information that the employee is suitable for the position, but must undergo retraining or advanced training. It is also possible to include information in the Regulations stating that the certification commission has the right to make recommendations to the employee, with subsequent re-checking of the employee’s implementation of these recommendations.
Dismissal based on certification results
Should Special attention pay attention to the correctness of the dismissal procedure. After all, in the legislation there are many options for the outcome of the same event - failure to pass certification. For example, if an employee who is a member of a trade union is fired, notification and a written opinion from the body of the trade union organization is required.
In the manner provided for in Art. 373 of the Labor Code, before dismissing a trade union member based on the results of certification, all dismissal documents, including the order and certification results, are first sent to the elected body of the trade union organization. After the union has received these documents, within seven days it is obliged to give a written opinion on the possibility of dismissing the employee.
It is prohibited by law to dismiss an employee based on the results of certification if he is on sick leave, or is on regular paid or unpaid leave. However, not everything is so simple if an employee does not pass certification if he is not a member of a trade union. His dismissal also does not happen instantly; some procedures need to be taken into account.
How does dismissal occur based on the results of certification?
After the certification has taken place, all materials and conclusions of the commission are sent to the employer, the head of the enterprise, who is authorized to make decisions on dismissal. The manager reviews the specified materials, after which he makes decisions on dismissal or retention of the employee in his position.
It is important that the manager adheres to the deadlines established by the Regulations. If the dismissal occurred later during certification, it can be challenged. The Regulations must clearly define the deadlines for the manager to make decisions based on the results of the certification.
So, if, nevertheless, an employee does not meet the criteria defined for a given position, he can be dismissed only after he is, in due course, offered another job at the same enterprise that corresponds to his skill level. At the same time, the employee must be notified in writing about the vacancies available for him. The notification is issued in such a way that the employee understands that he is not suitable for the position held, but he is offered a transfer to certain vacant positions. The notice must indicate the column where the employee signs that he is familiar with all vacancies existing at the enterprise. And one more column where he indicates his consent or disagreement with the transfer to another position.
That is, the dismissal of an employee based on the results of certification does not occur immediately, after the commission meeting. The commission indicates its opinion in the protocol, and the employer can decide to send the employee to advanced training, training, or courses. Or, decide that the employee can no longer work in a given position for which he does not correspond.
Dismissal of an employee who refused to undergo certification
An employee’s refusal to undergo certification in itself is not grounds for dismissal. He may be subject to disciplinary action in the form of a reprimand or reprimand. However, according to Article 21 of the Labor Code of the Russian Federation, such an employee violates labor discipline at the enterprise. If he was familiarized with the job description, labor regulations, and the Certification Regulations against signature, was duly notified of the upcoming certification, and still refuses to undergo it, such an employee can be subject to disciplinary action.
If employment contract and the Regulations contain information about certification and dismissal, in case of repeated refusal to attest, or in case of violation labor discipline employee, he can be dismissed under the article, in accordance with the initiative of the employer.
There are different opinions from judicial practice. On the one hand, the courts have repeatedly indicated in their acts that violation of labor discipline, if documented, is a legal basis for dismissal. But in the labor legislation there is no article that directly allows the dismissal of an employee if he fails to pass the certification, in the event of his refusal, and not of professional inconsistency. Therefore, if an employee refuses to undergo certification, this should be documented. The manager has every right to issue an order to subject the employee to disciplinary action.
Certification at an enterprise serves to assess the quality of skills and functional abilities of an employee necessary for him to professionally perform his job duties. Dismissal based on the results of certification occurs when the employee does not meet the qualification requirements, as confirmed by the commission in writing. Let's consider how and in what cases you can fire an employee who has not passed the certification.
Dismissal of employees based on certification results
The conditions that an employee working at an enterprise must correspond to the position held are contained in the Labor Code of the Russian Federation.
The provisions of Article 81 establish that dismissal is possible after certification, at the initiative of the employer of an employee who has not confirmed his qualifications based on the results of certification.
You just need to be very careful about the issue of formatting the results of a knowledge test, otherwise they can easily be challenged.
Certification rules
In order to legally dismiss an employee during certification if he failed to meet the certification requirements, the procedure itself must be properly prepared and carried out in accordance with the Regulations on certification and the norms of the law.
- An attestation commission must be convened.
- Certification can be carried out both orally and in writing.
- All employee answers must be entered on a specially designed certification sheet.
- The employee must be familiarized with the completed certification sheet against signature.
- In the minutes of the commission meeting, there should be details for each employee, the result of the vote on which a decision is made for each individual employee.
- In accordance with the conclusion of the certification commission, a mark is placed on whether the employee corresponds to the position he occupies or not.
- Certification must be regulated by a special Regulation adopted by the enterprise.
The conditions for certification are reflected in the Regulations. It may contain other wording about the certification results. For example, you can enter information that the employee is suitable for the position, but must undergo retraining or advanced training. It is also possible to include information in the Regulations stating that the certification commission has the right to make recommendations to the employee, with subsequent re-checking of the employee’s implementation of these recommendations.
Dismissal based on certification results
Particular attention should be paid to the correctness of the dismissal procedure. After all, in the legislation there are many options for the outcome of the same event - failure to pass certification. For example, if an employee who is a member of a trade union is fired, notification and a written opinion from the body of the trade union organization is required.
In the manner provided for in Art. 373 of the Labor Code, before dismissing a trade union member based on the results of certification, all dismissal documents, including the order and certification results, are first sent to the elected body of the trade union organization. After the union has received these documents, within seven days it is obliged to give a written opinion on the possibility of dismissing the employee.
It is prohibited by law to dismiss an employee based on the results of certification if he is on sick leave, or is on regular paid or unpaid leave. However, not everything is so simple if an employee does not pass certification if he is not a member of a trade union. His dismissal also does not happen instantly; some procedures need to be taken into account.
How does dismissal occur based on the results of certification?
After the certification has taken place, all materials and conclusions of the commission are sent to the employer, the head of the enterprise, who is authorized to make decisions on dismissal. The manager reviews the specified materials, after which he makes decisions on dismissal or retention of the employee in his position.
It is important that the manager adheres to the deadlines established by the Regulations. If the dismissal occurred later during certification, it can be challenged. The Regulations must clearly define the deadlines for the manager to make decisions based on the results of the certification.
So, if, nevertheless, an employee does not meet the criteria defined for a given position, he can be dismissed only after he is, in due course, offered another job at the same enterprise that corresponds to his skill level. At the same time, the employee must be notified in writing about the vacancies available for him. The notification is issued in such a way that the employee understands that he is not suitable for the position held, but he is offered a transfer to certain vacant positions. The notice must indicate the column where the employee signs that he is familiar with all vacancies existing at the enterprise. And one more column where he indicates his consent or disagreement with the transfer to another position.
That is, the dismissal of an employee based on the results of certification does not occur immediately, after the commission meeting. The commission indicates its opinion in the protocol, and the employer can decide to send the employee to advanced training, training, or courses. Or, decide that the employee can no longer work in a given position for which he does not correspond.
Dismissal of an employee who refused to undergo certification
An employee’s refusal to undergo certification in itself is not grounds for dismissal. He may be subject to disciplinary action in the form of a reprimand or reprimand. However, according to Article 21 of the Labor Code of the Russian Federation, such an employee violates labor discipline at the enterprise. If he was familiarized with the job description, labor regulations, and the Certification Regulations against signature, was duly notified of the upcoming certification, and still refuses to undergo it, such an employee can be subject to disciplinary action.
p>If the employment contract and the Regulations contain information about certification and dismissal, in the event of repeated refusal of certification, or in case of violation of labor discipline by the employee, he can be dismissed under the article, in accordance with the initiative of the employer.
There are different opinions from judicial practice. On the one hand, the courts have repeatedly indicated in their acts that violation of labor discipline, if documented, is a legal basis for dismissal. But in the labor legislation there is no article that directly allows the dismissal of an employee if he fails to pass the certification, in the event of his refusal, and not of professional inconsistency. Therefore, if an employee refuses to undergo certification, this should be documented. The manager has every right to issue an order to subject the employee to disciplinary action.
Certification commissions summarize the recommendations made, as well as proposals for improving the performance of employees, improving the qualifications of personnel, the need and feasibility of which were established during the certification process.
Based on the analysis of the results of the completed certification, a draft action plan is being developed aimed at further improving the organization of production, labor and management.
After completion of the next certification, the HR department sums up its results, establishes the number of employees who have passed the certification, their specific gravity in the total number of managers and specialists subject to certification, the number of employees recognized as appropriate and not appropriate for their positions is determined, employees who have not passed certification are identified various reasons, a list of managers and specialists who are subject to re-certification in a year is compiled (their compliance with their positions will be determined taking into account their implementation of the recommendations of the certification commission adopted at the next certification), as well as employees after the expiration of the period of exemption from the next certification.
The head of the enterprise (organization) ensures a thorough review of the certification results in order to check the compliance of the certification procedure with the approved Regulations on certification, the validity of the recommendations adopted by the certification commissions, the possibility and feasibility of their implementation in compliance with staff discipline and within the approved wage fund.
On large enterprises(in organizations) measures are recommended to be developed first in structural divisions, and then throughout the enterprise (organization) as a whole.
Based on the results of the work carried out, an order is issued for the enterprise (organization), which provides an analysis positive aspects and shortcomings in the organization and conduct of certification, measures developed based on the results of certification, changes in the placement of personnel, official salaries, enrollment of promising employees in the reserve for promotion, as well as other measures to encourage positively certified employees are approved.
The head of an enterprise (organization), within a period of no more than 2 months from the date of certification, may decide to transfer employees recognized by the results of certification as not corresponding to their positions to another job with their consent. If employees do not agree with the transfer to another job, the head of the enterprise (organization) may terminate the employment contract with them within the same period in compliance with current legislation (see section “Dismissal of an employee of a trade and public catering enterprise for inadequacy of the position held or work performed due to insufficient qualifications , confirmed by certification results").
After 2 months, transferring employees to another job or terminating their employment contract based on the results of certification is not allowed.
Please note that the local Regulations on personnel certification cannot include disciplinary sanctions among the measures of influence on employees. This is unacceptable for the reason that inconsistency with the position held does not imply the employee’s fault for lack of sufficient qualifications, and if a dispute arises and is considered in court, the employer’s actions to bring employees to disciplinary liability will be recognized as unlawful, and the provisions of the local regulatory act on personnel certification will be declared invalid on the basis of Part 4 of Art. 8 Labor Code RF.
Labor disputes regarding the dismissal and reinstatement of employees recognized as not corresponding to their positions based on the results of certification are considered in accordance with the current legislation on the procedure for resolving labor disputes.
In the context of widespread staff reductions, personnel certification has become one of the ways in Russia to “squeeze out” unnecessary workers. However, you shouldn’t be afraid of it: legislation and judicial practice are on the employee’s side
On Internet forums you can find many reviews from employees about sudden “certification” and subsequent dismissal “due to inadequacy for the position held.” Here are just a few examples.
“In connection with the financial crisis, our employer is forming a certification commission to conduct certification with further dismissal under the article. The employer offers to either resign at will, or he will fire you due to certification. Management doesn't even want to hear about staff reductions. What to do in this situation? How to protect yourself during certification? Where should I go?”
“When I arrived at work, I was suddenly called into the chief engineer’s office, saying that I was undergoing certification due to the fact that one position was being eliminated, in accordance with the issued directive. I was not notified at all about the certification, and was not familiarized with any documents about its conduct.”
So how legal is all this? First of all, according to clause 3, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can indeed be terminated by the employer in the event of “inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results.”
In this case, the certification procedure must be stipulated by the local acts of each company - regulations on certification, which must be agreed upon with the representative body of employees, and in the absence of such a body, with the general meeting of employees. If the organization decides to draw up a regulation on certification, all employees must be familiar with it against signature.
Of course, the certification provision cannot contradict labor legislation. “There are certain socially protected segments of the population that under no circumstances are subject to such verification,” explains Alexander Konovalov, a lawyer at Pepelyaev, Goltsblat and Partners, noting that, for example, dismissal based on the results of employee certification may be considered unlawful. who have worked in their position for less than one year, and pregnant women. This also applies to women who have children under three years of age and are on maternity leave.
Technically, the certification procedure must also be carried out correctly: only with the consent of an elected employee representative or with the consent of the employee himself, in the presence of a commission. Thus, it is impossible to carry out certification on the day it is announced to the employee. The recommended period in which the employer must notify the employee about the certification is a year.
In general, recruitment managers claim that certification is a necessary part of the personnel management system. The professional level of employees is growing unevenly; individual specialists may lag behind the needs of the company. Certification should reveal these facts, and the HR department should develop an action plan to solve the problem - advanced training, certain trainings, etc.
Not everyone knows that even failure to pass certification is not a direct reason for dismissal. According to Article 76 of the Labor Code of the Russian Federation, the employer only has the right to remove you from work until you retake the exam. However, often the employer acts more subtly: the person who received an unsatisfactory assessment at the certification is asked to leave “of his own free will.” Or they simply intimidate her with no intention of actually making her happy.
“In conditions when the supply on the labor market has increased, a weak specialist can be replaced by a stronger one, the relevance of such decisions increases,” Maria Muzaleva, HR manager at Finam, admitted in an interview with the website. “However, I am not aware of any companies abusing this. Mass layoffs, even if formally related to certification, are negative for the company’s image and undermine it corporate culture, demoralize employees."
In fact, mass certification of workers for the purpose of significant staff reduction is a rather troublesome procedure for any company. “For organizations, certification is not the most The best way quickly get rid of the “extra frame”. Rather, the leaders in in this case act emotionally, not logically. It’s much wiser to talk to the workforce, explain the situation, and perhaps jointly “tighten our belts,” reflects Maxim Chernigovsky, director of the analytical department of the Vegas-Lex law firm.
Moreover, the risk of litigation in the event of numerous dismissals based on the results of certification is very high. “After all, if an employee does not agree with the results of the certification, he can appeal to the commission for labor disputes companies in labor inspection or to court. Practice shows that up to 90% of legal proceedings on this issue end in victory for the employee. Then the employer has to pay not only compensation to the employee, but also his legal costs,” explains Maxim Chernigovsky.
An employee who does not agree with dismissal based on the results of certification has a month (from the date of receipt work book in hand (Article 392 of the Labor Code of the Russian Federation)) in order to go to court with a claim for reinstatement at work. “Of course, employees can challenge dismissal based on performance appraisal results. In principle, this is correct,” says Maria Muzaleva. — It would be more correct for employees to focus on receiving the compensation provided for by law, and not on reinstatement to their previous job. Believe me, the employer, if desired, can always find an additional reason to fire an employee.” In case of a positive court decision, in addition to the salary that the employee should have received for the time he was not working, compensation is paid, calculated on the basis of 1/300 of the Central Bank refinancing rate for each day of delay.
Sometimes employers use performance reviews as a way to fire an employee. At the same time, they forget that dismissal based on its results is possible only if the procedure required by law is followed, and it is established that the employee is not suitable for the position held. To avoid common mistakes, we will talk about the certification procedure. We will also tell you how to correctly formalize your dismissal based on the results of the certification.
First, we note that for commercial organizations, certification of employees is voluntary. However, employers are interested in carrying it out, since this procedure allows for diagnostics professional level each employee and ensure competent arrangement frames. And this is the key to successful and efficient work. In addition, based on the results of the certification commission, you can legally make a decision to dismiss an employee who cannot cope with his job responsibilities (or work performed). But here we draw your attention to the following: in order for the dismissal to be recognized as lawful, the decision of the certification commission alone is not enough. The certification procedure must strictly comply with the procedure established in the organization by local regulations (in particular, the Regulations on the certification of employees).
Otherwise, the dismissed employee (if he goes to court) will be reinstated at work. To avoid litigation, let's look at what you should pay special attention to when preparing and conducting certification. And how to correctly formalize the dismissal of an employee based on its results.
Purpose of certification and basic requirements for its implementation
So, if you decide to carry out the certification procedure, it is important to remember that the main purpose of employee certification is to determine suitability for the position held or work performed based on an assessment of his qualifications. The certification commission must include a representative of the elected body of the primary trade union organization. In addition, in order for the results of the certification (if appealed) to be recognized as legitimate, it is necessary to comply with the following requirements when conducting it.
First. Certification, as we said earlier, must be carried out in strict accordance with the procedure established by a local regulatory act, adopted taking into account the opinion of the representative body of workers.
Second. Certification must be carried out at a meeting of the certification commission and carried out on the basis of objective criteria that exclude the personal factor.
Third. The certification carried out should not be selective (all employees holding positions or performing work that require special knowledge or special training are subject to certification).
Comment from a trade unionist Yuri PELESHENKO, Head of the Legal Department of the Federation of Independent Trade Unions of Russia: The Labor Code of the Russian Federation does not contain a ban on conducting certification in relation to one or another category of workers. At the same time, it must be remembered that certification is carried out to determine the compliance of employees’ qualifications with the position held (the work performed). This means that certification should not be carried out for workers engaged in unskilled labor (for example, cleaners). In addition, pay attention to employees in the preferential category. So, for example, there is no ban on certification of pregnant women; women with children under three years of age; single mothers raising a child under 14 years of age (disabled child under 18 years of age); persons raising these children without a mother. At the same time, if during the certification a discrepancy is revealed with their position (or work performed), it is impossible to dismiss them under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation (Article 261 of the Labor Code of the Russian Federation). Therefore, we consider it appropriate to exempt them from certification, enshrining this in the Regulations on certification. The same can be provided for minors (Article 269 of the Labor Code of the Russian Federation) and other persons (at your discretion). |
Procedure for preparing for certification
Certification in commercial organizations is not regulated by current legislation. You must establish the procedure for conducting certification yourself by local regulations (taking into account the opinion of the representative body of employees).
The Certification Regulations must necessarily provide for:
· objectives and goals of certification;
· frequency of certification;
· the procedure for forming the certification commission;
· procedure for preparing and conducting certification;
· decisions made by the certification commission, the procedure for their adoption;
· procedure for processing certification results.
Please note that the frequency of certification is determined by the employer based on necessity and production conditions. And for certain categories of employees it may be different. For example, the Regulations on Certification may stipulate that management employees (deputy managers, heads of departments, offices, divisions) are subject to certification once every two years, the rest - once every three years.
To carry out certification, an certification commission must be created in the organization. The composition of the commission is approved by order. When forming it, it is important that the commission members have the necessary knowledge and qualifications and can objectively assess the professional knowledge and skills of the employee being certified.
Preparation for each certification should begin with making a decision to conduct it. Such a decision is formalized by order. Each employee must be informed about the date and place of certification in advance, against signature, within the time limits established by the Regulations on certification (for example, no later than a month before it is held). This means that the order must be issued taking into account the time required for familiarization of employees.
Before the start of certification (for example, no later than two weeks) for employees subject to certification, reviews must be submitted to the certification commission (reviews can be issued in the form of a presentation) on their performance job responsibilities for the certification period. The review for each employee is signed by his immediate supervisor. The review, as a rule, should contain the following information:
· surname, name, patronymic of the employee;
· the name of the position he held at the time of certification and the date of appointment to this position;
· a list of job responsibilities performed by him;
· motivated assessment of professional and business qualities the employee and the results of his work for the certification period (with the attachment of reports on the work performed or information on unfulfilled orders (if any)).
At the same time, the HR department must submit copies of documents on education, advanced training, job descriptions, extracts from the work book and others. Each employee must also be familiarized with the materials submitted to the commission in advance (for example, at least a week before certification). So that he can provide the commission with additional information about his professional activity for the specified period, which, in his opinion, may affect the results of the certification.
Due to inconsistency with the position held or the work performed due to insufficient qualifications, confirmed by certification results, Article 81, part one, paragraph 3 of the Labor Code of the Russian Federation.
Employees must be familiarized with the Certification Regulations upon signature.
