Terms of dismissal of employees who have not passed certification. Didn't get certified at work

Sometimes employers use appraisal as a way to fire an employee. At the same time, they forget that it is possible to dismiss based on its results only if the procedure required by law is followed, and at the same time it is established that the employee does not correspond to the position held. In order to avoid common mistakes, we will talk about the certification procedure. And also we will tell you how to properly issue a dismissal based on the results of certification.

First, we note that for commercial organizations, the certification of employees is a voluntary matter. However, employers are interested in its implementation, since this procedure allows you to diagnose the professional level of each employee and ensure a competent placement of personnel. And this is the key to success and effective work. In addition, based on the results of the certification commission, it is possible to legally decide to dismiss an employee who cannot cope with his job duties (or work performed). But here we draw your attention to the following: in order for the dismissal to be recognized as lawful, one decision of the attestation commission 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. In order to avoid litigation, let's look at what you should pay special attention to when preparing and conducting certification. And how to formalize the dismissal of an employee based on its results.

Purpose of certification and basic requirements for its implementation

So, if you decide to conduct an attestation procedure, then it is important to remember that the main purpose of employee attestation is to determine the suitability of the position held or the work performed based on an assessment of his qualifications. The composition of the attestation commission must include a representative of the elected body of the primary trade union organization. In addition, in order for the results of certification (in case of appeal) to be recognized as legitimate, it is necessary to comply with the following requirements during its implementation.

First. Certification, as we said earlier, should be carried out in strict accordance with the procedure established by the local regulatory act, adopted taking into account the opinion of the representative body of employees.

Second. Attestation should be carried out at a meeting of the attestation commission and be 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 requiring special knowledge or special training are subject to certification).

Trade Unionist's Comment 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 attestation in relation to a particular category of workers. At the same time, it must be remembered that certification is carried out in order to determine the compliance of the qualifications of employees with the position (work performed). And this means that certification should not be carried out for workers engaged in unskilled labor (for example, cleaners). In addition, pay attention to privileged employees. So, for example, there is no ban on certification of pregnant women; women with children under the age of three; single mothers raising a child under the age of 14 (a disabled child under 18); 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), dismiss them under paragraph 3 of the first part of Article 81 Labor Code RF is impossible (Article 261 of the Labor Code of the Russian Federation). Therefore, we consider it expedient to exempt them from attestation, fixing this in the Regulations on attestation. The same may be provided for minors (Article 269 of the Labor Code of the Russian Federation) and other persons (at your discretion).

The procedure for preparing for certification

Carrying out certification in commercial organizations is not regulated by the current legislation. You must establish the procedure for attestation yourself by a local regulatory act (taking into account the opinion of the representative body of employees).

The regulation on attestation must obligatorily provide for:

· objectives and goals of certification;

· frequency of certification;

· the procedure for the formation of an attestation commission;

· the procedure for preparing and conducting certification;

· decisions made by the attestation commission, the procedure for their adoption;

· the procedure for reporting the results of certification.

Please note that the frequency of certification is determined by the employer based on the need and working conditions. And for certain categories of employees may be different. For example, the Regulation on Certification can provide that executives (deputy heads, heads of departments, departments, departments) are subject to certification once every two years, the rest - once every three years.

To conduct certification in the organization, an certification commission must be created. The composition of the commission is approved by order. When forming it, it is important that the members of the commission have the necessary knowledge and qualifications and can objectively assess the professional knowledge and skills of the certified employee.

Preparation for each certification should begin with a decision to conduct it. Such a decision is made by order. Each employee must be informed about the date and place of the certification against signature in advance within the time limits established by the Regulations on certification (for example, no later than a month before it is held). And this means that the order must be issued taking into account the time required for familiarization of employees.

Prior to the start of the certification (for example, no later than two weeks), the employees subject to certification must be submitted to the certification commission reviews (reviews can be issued in the form of a presentation) on their performance official duties for the certification period. The review for each employee is signed by his immediate supervisor. Feedback should generally include the following information:

· surname, name, patronymic of the employee;

· the name of the position held by him at the time of certification and the date of appointment to this position;

· a list of duties performed by him;

· a motivated assessment of the professional and business qualities of the employee and the results of his work for the certification period (with attachment of reports on the work performed or information on outstanding assignments (if any)).

At the same time, the personnel department must submit copies of documents on education, advanced training, job descriptions, extracts from the work book and others to the certification commission. 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 submit to the commission additional information about his professional activities for the specified period, which, in his opinion, may affect the results of certification.

Due to the discrepancy between the position held or the work performed due to insufficient qualifications, confirmed by the results of certification, article 81, part one, paragraph 3 of the Labor Code of the Russian Federation.

Employees must be familiarized with the Regulations on certification against signature.

Upon completion of certification, provide all materials to the head of the organization (another authorized person). He must make the final decision on the results of certification. Information about the results of the certification should be included in the employee's personal card. In commercial organizations, the Forms of the attestation sheet and protocol are not established by law. Therefore, they can be drawn up in any form (certification sheet, minutes of the meeting of the certification commission). In state and municipal institutions For the certification of employees, higher departments may establish (recommend) forms of certification (qualification) sheets and minutes of the meeting of the certification commission. For example: An example of processing the results of an employee's appraisal In an organization, five accountants were appraised.

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

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

Certification of teachers for compliance with the position held

Thus, in your case, you need to: - make changes to the certification schedule, setting a new date for it for the employee who did not appear; , draw up an appropriate act - send a letter to the employee about the upcoming certification and attach a copy of the Regulations on certification to it. Details in the materials of the Personnel System: 1. Answer: How to conduct an attestation of employees Purpose of attestation Why do you need attestation of employees Perform attestation of employees in order to determine their business qualities and evaluate the results of their work.

Certification of employees as a basis for dismissal

One of the grounds for terminating an employment contract at the initiative of the employer is the employee’s inconsistency with the position held or work performed due to insufficient qualifications, confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code of the Russian Federation). As practice shows, dismissal on this basis quite often ends with proceedings in court, and often their result is the loss of the employer.
In this article, we will explain what is meant by certification, in relation to which categories of employees it can be carried out, what is its frequency and what is the procedure for dismissing an employee if, according to the results of certification, he is recognized as inappropriate for the position or work performed. The concept of certification.

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

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

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

The regulation on certification is put into effect by order of the head of the organization. After the regulation comes into force, it must be familiarized with it against the signature of all working employees and each new employee when hiring (Part 1 of Art.
3 art. 68 of the Labor Code of the Russian Federation).

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

Regulations on certification and norms of the law.

1. A review committee should be convened.
2. Certification can be carried out both orally and in writing.
3. All responses of the employee must be entered in a specially designed certification sheet.
4. The employee must be familiarized with the completed certification sheet, against signature.
5. In the minutes of the meeting of the commission, there should be retaliation for each employee, the result of the vote, on which a decision is made for each individual employee.
6. In accordance with the conclusion of the attestation commission, a mark is made on whether the employee corresponds to the position he occupies or not.
7. Certification should be regulated by a special Regulation adopted at the enterprise.

The conditions for attestation are reflected in the Regulations.

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

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

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

Such a decision must be made by the head of the organization or the employee in whose competence is the appointment of certification. Make a decision by order.

Important

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

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

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

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

If the employee did not pass the certification on the 3rd day

Attention

An important condition that must be carried out when carrying out the certification of their employees is that the conditions and procedure for carrying out measures for the certification of employees at enterprises should be fully prescribed. Women who are in the position of pregnancy.

Because even when it is possible to determine their inconsistency with the position held at a certain enterprise, their dismissal will be impossible in accordance with the current article of the Labor Code of the Russian Federation. Employees who are on legal leave for a certain period of time related to caring for children under 3 years of age. In addition, the implementation of planned activities that are associated with the direct re-certification of employees provide an excellent opportunity for rational personnel transfer of their employees.
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The employer has a fully legal right to terminate the drawn up employment contract with a certain employee who does not fully correspond to his position or the work performed in cases where he does not have the required knowledge and experience for a certain qualification. This justification is indicated in Art. 81 pun. 3 part. 1. Features of the dismissal of an employee in connection with the inconsistency of the position held In order to be able to fully legal grounds to dismiss your employee who does not meet his qualifications, you will need to use the stat.

"HR officer. Labor law for a personnel officer", 2010, N 4

Certification of employees of the organization and dismissal based on its results: practical issues

For information on how to properly conduct the procedure to identify the inconsistency of the employee with the position held and not receive adverse legal consequences, read the material.

Perhaps, no reason for dismissal raises so many questions among employers as provided for in paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation: inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification. This is understandable: the criteria for non-compliance are rather difficult to determine - after all, this is an evaluation category. And the conflict between the manager's assessment and the employee's self-esteem often leads the employee and the employer to court. How to dismiss a subordinate for inconsistency with the position held in order to avoid his claims? To do this, it is necessary at least to correctly carry out the procedure for identifying the inconsistency of the employee with the position held.

In the Letter of Rostrud dated April 30, 2008 N 1028-s<Об увольнении работника вследствие недостаточной квалификации>it is clearly stated that the dismissal of an employee on this basis without certification is impossible.

By the way, certification is far from always a tool for dismissing an objectionable employee. With its help, you can not only assess the professional viability of employees, but also decide who needs training, who can be transferred to a higher position, and who is really better to leave without regret.

Polysemy of the term

In the Labor Code of the Russian Federation, the term "certification" is found in different meanings: in relation to the assessment of the qualifications and qualities of an employee, regarding examination tests in educational institution(Art. 174), in relation to workplaces (Art. 209).

Under the certification of employees, as a rule, they understand a procedure that is a comprehensive check of the level of business, personal, and sometimes even moral character an employee in the corresponding position in modern conditions. In normative acts, there are different approaches to the definition of attestation, its goals, objectives and principles. Solutions to the issues of the formation of attestation commissions, the preparation and conduct of attestation, the assessment of the person being attested and the legal consequences of attestation are ambiguous. This is due to the specifics of the industries that have adopted attestation acts, the characteristics of professions and the working conditions of certified workers.

However, you can set the following characteristics inherent in the certification of workers in any field. Firstly, it is usually carried out in the organization with which the employee has an employment contract. Secondly, the object of verification is the theoretical and practical readiness of the employee to occupy a certain position or perform a certain job. Thirdly, attestation is carried out in specially created attestation commissions.

The main tasks of certification are: 1) an objective assessment of the activities of employees and the establishment of their compliance with the position held; 2) assistance in improving the efficiency of the organization; 3) identifying the prospects for applying the potential of specialists; 4) formation of highly qualified personnel of the organization; 5) ensuring the possibility of movement of personnel; 6) stimulation of professional growth of employees.

So, in the process of certification, the employer needs to determine the level of preparedness, skill, the degree of suitability of the employee to perform work in a particular position or profession, determined by the category, class, rank and other categories, in other words, to identify the qualifications of the employee. The qualification of an employee being hired is established according to education documents, as well as documents confirming the employee's experience in the position (profession) for which he is hired.

The procedure for certification

Mandatory attestation is established by special federal laws in relation to a small number of employees of certain categories and certain industries economic activity. Unlike industries such as transport, education or industry, where personnel certification is mandatory, for ordinary commercial organization certification is voluntary. As a rule, it is carried out at the initiative of the administration.

As O. Yu. Sergeeva correctly notes, the circle of employees subject to certification is not limited by the Labor Code of the Russian Federation. Since the purpose of certification is to test the qualifications of employees, it should not be carried out for employees whose labor functions do not require special knowledge or training. In addition, the organization must exempt certain categories of employees from certification. For example, pregnant women and employees who have worked in the company less than a year, especially since for these persons such guarantees are provided for in paragraph 4 of the Decree of the State Committee for Science and Technology of the USSR and the State Committee for Labor of the USSR dated 05.10.1973 N 470/267 "On Approval of the Regulations on the Procedure for Certification of Managers, Engineering and Technical Workers and Other Specialists of Enterprises and Industrial Organizations, construction, Agriculture, transport and communications" (as amended on 11/14/1986, applied to the extent that it does not contradict the Labor Code of the Russian Federation, hereinafter referred to as Resolution N 470/267). At the moment, this is the only document that generally regulates the issue under consideration and can be used as the basis for the development of a local regulation on the procedure for attestation of employees of an organization.The procedure for attestation of civil servants is developed and adopted for each department separately, these standards can also be used by commercial organizations.

The main local normative act that determines the procedure for attestation of employees of an organization is the regulation on attestation. The Labor Code of the Russian Federation does not contain recommendations for the development of a provision on attestation. In order to avoid disputes, the norms of Decree N 470/267 can be taken as a basis for developing a provision on personnel certification. The regulation on attestation must be approved by the head of the organization. With the adopted provision, it is necessary to familiarize all working employees and each newly hired against signature (part 3 of article 68 of the Labor Code of the Russian Federation).

Auxiliary acts that ensure the organization and conduct of certification are the rules of internal work schedule organizations, regulations on structural divisions of the organization, job descriptions of employees.

By the way, in order to avoid possible misunderstandings, experts recommend including a clause on the obligation to undergo certification in the employment contract with the employee.

Certification can be carried out as planned, in accordance with the schedule approved by the certification commission or the head of the organization, or unscheduled - at the initiative of the employee or his manager. The timing of the planned certification of employees of organizations in various sectors of the economy differ from each other, but, as a rule, certification of employees should be carried out at least once every three to five years.

The organization also establishes the deadline for certification on its own, based on the number of employees being certified and other factors. The optimal period is from 3 to 6 months. Forms of attestation are selected depending on the specifics of the profession of the person being attested. This may be a written test, an interview, a written exam, practical task, sample making, etc.

For certification it is necessary:

Approve the position on certification;

Issue an order to carry it out;

Form an attestation commission;

Prepare Required documents for the work of the attestation commission;

Notify employees about the performance appraisal;

Approve the prepared list of questions for certification tasks;

Carry out certification;

Summarize it.

Before certification, it is advisable to check whether job descriptions have been drawn up for all positions in the organization. The fact is that in their absence, the court may recognize the results of the certification as invalid, and the subsequent dismissal of the employee as illegal.

The position on certification has already been discussed above, so let's turn to the order on certification. The certification order must contain the following information: the timing and place of the certification; circle of employees subject to certification; composition of the attestation commission; grounds for certification (if certification is extraordinary); the procedure for reporting the results of certification. In the order, it is desirable to fix the duties of employees and the timing of the preparation of documents for certification. In addition, establish the procedure for preparing and submitting to the certification commission information about which of the employees improved their qualifications and when, certification sheets for previous certification, feedback from clients and colleagues, etc. .

The attestation commission consists of the chairman, deputy, secretary and members of the commission. In the composition of the certification commission in a commercial organization, it is advisable, in the same way as it is done for certification in the public service, to include representatives of personnel and legal services. The quantitative and personal composition of the commission is approved by the head of the organization.

From testing to interview

Certification in the organization can be carried out in several stages. For example, the first stage is testing; the second is an individual interview. The purpose of the first stage is to assess the preparedness of an employee in the field of professional knowledge based on the results of testing on the topics proposed in the tests. To implement this stage, the organization develops tasks, for example, consisting of questions with alternative answers, and tasks on professional topics. Tests should cover a wide range of issues and reflect all current changes and additions to the current legislative and regulatory framework.

An individual interview is conducted in the presence of the certified person and his/her immediate supervisor. If the attested person for unexcused reasons did not appear at the meeting of the attestation commission, then attestation can be carried out in his absence. During an individual interview, a decision is made on the suitability of the employee for the position.

In accordance with the regulation on attestation, for each attested employee of the organization, the following documents are also submitted to the attestation commission in advance (no later than two weeks before the start of it): 1) a questionnaire characterizing the personality of the attested person; 2) summary sheet with test results; 3) a review of the employee subject to certification, signed by his immediate supervisor.

The review is the main document characterizing the level of theoretical and practical skills of the employee, his personal and moral qualities and the correspondence of this level to the position held. The recall should reflect not only general indicators characteristic of all categories of employees, for example, the level of education, length of service in this position, etc., but also the individual features of the person being certified, for example, the degree of independence in the performance of official duties, the quality of their performance and responsibility for the task assigned, the ability to adapt to a new situation and apply new approaches to solving problems that have arisen, the ability to organize the work of subordinates, etc.

The certification regulations of various organizations contain a different list of indicators for assessing the qualifications of employees, which can be summarized as follows: 1) education; 2) work experience in the specialty; 3) professional competence; 4) work ethics, communication style; 5) creativity, entrepreneurial spirit; 6) the ability to implement commercial activity; 7) the ability to self-esteem, attitude to criticism and tasks of the leader.

The assessment of the service qualification of the certified employee is based on the conclusion about its compliance with the provisions job description, determining the share of his participation in solving the tasks, the complexity of the work performed and its effectiveness. The results of the employee's appraisal are recorded in the appraisal sheet.

Based on the results of the appraisal, for each assessed employee, the appraisal commission makes one of the following decisions:

Corresponds to the position held;

Corresponds to the position held, subject to the improvement of work and the implementation of the recommendations of the certification commission with the passage of re-certification within a specific period;

Doesn't fit the position.

The decision of the attestation commission is drawn up in a protocol, which is signed by the members of the attestation commission present at the meeting. At the same time, it should be taken into account that the meeting of the commission will be competent if at least two thirds of its members are present. Judicial practice knows examples of the reinstatement of an employee dismissed following the results of certification on the basis of a dismissal order and a decision of the certification commission, the meeting of which was recognized as unauthorized.

Example. R. filed a lawsuit against the bailiff service of the main department of the Ministry of Justice of Russia in the Republic of Dagestan for reinstatement, recovery wages during forced absenteeism and compensation for non-pecuniary damage, referring to the fact that he was wrongfully dismissed from the post of senior bailiff of the city of Dagestanskiye Ogni according to paragraphs. "b" p. 3 h. 1 art. 81 of the Labor Code of the Russian Federation for inconsistency with the position held due to insufficient qualifications, confirmed by the results of certification, in accordance with the order of October 28, 2003 N 580.

By decision of the district court, the stated requirements were denied, the next instance left the decision unchanged. The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the court decisions, sending the case for a new trial to the court of first instance, on the following grounds.

In accordance with Art. 24 federal law dated 31.07.1995 N 119-FZ "On the basics public service in Russian Federation", in force at the time of the dispute and the consideration of the case in court, in order to determine the level of professional training and compliance of a civil servant with the civil service position held, as well as to resolve the issue of assigning a qualification category to a civil servant, his attestation is carried out.

The procedure and conditions for the certification of a civil servant were established by the Regulations on the certification of a federal civil servant, approved. Decree of the President of the Russian Federation of 09.03.1996 N 353. In accordance with clause 4 of the above Regulations, the attestation commission consists of a chairman, deputy chairman, secretary and members of the commission. The head of the state body shall involve independent experts in the work of the commission. The assessment by experts of the qualities of a federal civil servant is one of the arguments that characterize the person being certified.

The attestation commission includes representatives of the personnel and legal services of the state body, and may also include a representative of the relevant trade union body. The quantitative and personal composition of the attestation commission, the terms and procedure for its work are approved by the head of the state body that decides on the appointment or dismissal of the relevant federal civil servants.

In refusing to satisfy the stated requirements, the courts proceeded from the fact that the commission that conducted the certification of the plaintiff was competent, since its payroll complies with the Order of the Minister of Justice of the Republic of Dagestan dated April 19, 2000 N 82.

Meanwhile, the case file contains Order of the Minister of Justice of the Republic of Dagestan dated May 23, 2000 N 119 "On the Attestation Commission of the Ministry of Justice of the Republic of Dagestan" (hereinafter - Order N 119), which also applied to the bailiff service. The order contains the list of members of the certification commission in the amount of eight people. Paragraph 6 of this Order provides that all previously issued orders on the issue of attestation of employees should be considered invalid.

From the minutes of the meeting of the attestation commission, it can be seen that only four of the nine claimants participating in the attestation were approved by order N 119. There are no data on the replacement of the rest and the appointment of new members of the attestation commission in the case file.

In accordance with paragraph 10 of the Regulations on the certification of a federal civil servant, a meeting of the certification commission is considered competent if at least two thirds of its members are present. Since less than two-thirds of its members took part in the meeting of the attestation commission, approved. order N 119, the conclusions of the courts on its competence cannot be recognized as correct.

(Determination of the Armed Forces of the Russian Federation of December 16, 2005 N 20-B05-36.)

Such a court decision for the employer will entail such consequences as the restoration of the employee at work, the payment of wages for the time of forced absenteeism and monetary compensation for causing moral harm.

Notification of the results of certification must be issued to the employee or sent by mail ( by registered mail) no later than 5 days after the day of certification, unless otherwise provided valid document. An extract from the protocol of the attestation commission is attached to the personal file.

Based on the results of the certification, the certification commission may submit recommendations to the head of the organization (on encouraging individual employees for their achievements; on establishing, changing or canceling bonuses to official salaries; on inclusion in the reserve for promotion; on advanced training of individual employees, etc.). When issuing recommendations, the attestation commission must indicate the reasons for which they are formulated. The results of the certification are reported to the head of the organization within a week after its completion.

The head of the organization, taking into account the assessments and recommendations of the certification commission, makes a decision regarding the certified employee.

Dismissal

In accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, dismissal on the grounds provided for in paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, is allowed only if it is impossible to transfer the employee with his consent to another job. Therefore, the order should contain an order to the personnel department to offer employees a transfer to other positions available in the organization. If the employee agrees to the transfer (such consent must be expressed in writing), a transfer order is issued. If the employee refuses to transfer or there is no other job in the organization, then an order is issued to dismiss him.

In the event that, as a result of certification, a discrepancy between the position held (work performed) of an employee who is a member of a trade union is revealed, his dismissal is carried out taking into account the reasoned opinion of the elected trade union body (part 2 of article 82 of the Labor Code of the Russian Federation). At the same time, it should be taken into account that the employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the trade union body.

In a different order, the dismissal of employees who are heads (their deputies) of the elected trade union collegial bodies of the organization, its structural divisions(not lower than shop and equated to them), not released from the main work.

In order to dismiss the named workers in connection with the discrepancy between the position held (the work performed), it is required to obtain the consent of the relevant higher elected trade union body (Article 374 of the Labor Code of the Russian Federation). In a similar manner, the dismissal of executives (the head, his deputies) of the elected trade union body of this organization is carried out (Article 376 of the Labor Code of the Russian Federation).

The specified norm for the heads (deputies) of elected trade union bodies establishes increased legal protection when deciding on the termination of an employment contract with them, aimed at state protection from interference by the employer in the implementation of trade union activities.

In the event that the participation of an elected (corresponding higher elected) trade union body when considering issues related to the termination of an employment contract at the initiative of the employer is mandatory, the employer must, in particular, provide evidence that when terminating the employment contract with an employee due to his insufficient qualifications , confirmed by the result of the attestation, to the attestation commission during the attestation, which served as the basis for the dismissal of the employee under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, included a representative from the relevant elected trade union body (part 3 of article 82 of the Labor Code of the Russian Federation).

In view of what has been said in the order, an entry is made:

"Dismiss due to inconsistency of the position held due to insufficient qualifications, confirmed by the results of the certification and refusal to transfer to another position, clause 3, part 1, article 81 of the Labor Code of the Russian Federation. Reason: order to carry out activities following the results of the certification from "__" ______________ N ___, minutes of the meeting of the attestation commission dated "___" ______________ year N ___, proposal for transfer to another job dated "__" ______________, statement _________________ Full name ________ on refusal to transfer to another job from "__" ______________".

On the basis of the order, a corresponding entry is made in the work book of the employee.

Bibliography

1. Sergeeva O. Yu. Personnel certification // Salary. 2007. No. 11.

2. Regulations for an accountant. 2008. No. 12.

I. Pogodina

Head of Department

Civil law and process

Vladimirsky

State University

Signed for print

According to the old rules, a teacher who wants to earn more own will could apply for the assignment of the second, first or highest category. The categories were assigned: the second - by the leadership of the preschool educational institution, the first - by the district department of education, and the highest - in the ministry.
According to the new rules, the second category was completely canceled, and the certification of pedagogical workers was entrusted to educational authorities at the level of the subject of the Russian Federation. At the same time, certification became mandatory: every five years, every teacher who does not have a category, regardless of desire and length of service, must undergo certification in order to confirm compliance with the position held.
Those teachers who wish to receive the first or higher category may instead apply for attestation to determine whether their professional level meets the requirements for qualification categories. Categories are assigned for 5 years, after which they must be confirmed again in the same order.

If the teacher does not confirm his category in time, it will be canceled.

After this :
- a teaching worker of the first category will either have to submit an application for attestation to be assigned the first category, or, in a general manner, pass an attestation to confirm compliance;
- a pedagogical worker of the highest category will be forced to first be certified for the first category, and only two years later he will be entitled to apply for the highest.

At the same time, qualification categories assigned before January 1, 2011 remain valid for the period for which they were assigned. However, the rule according to which a teacher who has worked in the profession for 20 years was assigned the second category “for life” is cancelled. From now on, these teachers will also have to undergo certification every five years.

Mandatory attestation in accordance with the position

Mandatory attestation is carried out every five years to confirm the compliance of the teacher with the position held.

Who must pass the attestation

Pedagogical workers who do not have categories and have not expressed a desire to be certified for a qualification category.

To whom no need pass attestation
- teachers who have worked less than 2 years in this position;
-pregnant women and women in maternity leave and on parental leave until the child reaches the age of 3 years. Their attestation is carried out not earlier than two years after leaving the specified holidays.

For certification in order to confirm the compliance with the position held, teachers are represented by their employer.

If he does not work in different pedagogical positions for one employer and does not have a qualification category for any of them, then the employer's representation can be submitted immediately for all positions in which he is a member.

If a teacher combines work in his specialty with several employers, each of them has the right to send him for certification.

The employer draws up a submission to the teacher. The submission is filled in according to the established form (there is a sample). In this document, the employer comprehensively assesses the professional skills of the teacher and his work in his position. Also, the document should contain information about the teacher's advanced training courses and information about the results of previous certifications.
Not later than a month before the start of the certification, the employer, against signature, acquaints the teacher with the presentation.
The employer submits documents to the certification commission of the constituent entity of the Russian Federation, where he receives information about the date, place and time of the certification of the teacher.
The period of certification should not exceed 2 months. Not later than one month before the certification, the employer brings to the attention of the teacher information about the date, place and time of his certification.

How is the certification

In the course of certification, in order to confirm the compliance with the position held, teachers pass written tests on issues related to their professional activities or computer testing, which allows determining the level of knowledge modern techniques teaching and education.

Commission decision

In accordance with paragraph 13 of the “Procedure for the certification of pedagogical workers”, the decision of the certification commission is drawn up in a protocol and entered in the certification sheet of the teacher. This document, as well as an extract from the administrative act of the attestation commission, are stored in the personal file of the teacher.
Upon successful completion of the certification, the commission issues a verdict: "corresponds to the position held."
If the tests were overwhelmed, the commission decides that the teacher "does not correspond to the position held."

In this case, the employment contract with a teacher may be terminated in accordance with clause 3. part 1. Art. 81 of the Labor Code of the Russian Federation. However, the employer is not obliged to dismiss a teacher who has not passed certification.. He, for example, can offer him to take refresher courses, and at the end of them to undergo re-certification.

In addition, dismissal is not allowed if it is possible to transfer a teacher with his written consent to another job (for example, a vacant lower position or a lower paid job).

Also, in accordance with Article 261 of the Labor Code of the Russian Federation, it is impossible to dismiss
- an employee during the period of his temporary incapacity for work and during his vacation;
- a pregnant woman, as well as a woman with children under the age of three;
a single mother raising a child under the age of fourteen or a disabled child - up to eighteen years;
- other persons raising these children without a mother.

Voluntary certification for obtaining the first or highest category

Voluntary attestation is carried out on the basis of an application of a pedagogical worker to establish the compliance of his qualifications with the requirements for the first or highest qualification categories.

Who is eligible to be certified

1. An application for attestation for the assignment of the first category can be submitted by:
- pedagogical workers who do not have categories;
- pedagogical workers with the first category - if the validity of the previous "voluntary certification" is coming to an end.

2. An application for attestation for the assignment of the first category can be submitted by:
- teaching staff with the first category - but not earlier than 2 years after its assignment;
- pedagogical workers with the highest category - if the validity of the previous "voluntary certification" is coming to an end.

Teachers who have worked in their position for less than 2 years, pregnant women and women on maternity leave to care for a child up to the age of 3 years also have the right to apply for voluntary certification.

Who applies for certification

Each teacher does this on their own. The law does not establish centralized deadlines for filing applications and periods for attestation, so a teacher can submit documents for attestation at any time.

Teachers who already have a category are advised to submit an application no later than three months before the expiration of the previous voluntary certification. This is necessary so that this period does not expire during the consideration of the application and certification.

How to apply for certification

1. A teacher who decides to apply for voluntary certification collects a package of documents:
- an application in the prescribed form (there is a sample);
- a photocopy of the certification sheet of the previous certification (if any);
- a new attestation sheet filled up to point 7 inclusive;
- a portfolio of your professional achievements (there are recommendations for compiling), which can be submitted to the certification commission both at the time of application, and within a month after that.

2. A package of documents is submitted to the certification commission -

3. Within a month, the commission considers the application and sets the date, place and time for the certification of the teacher. The period of certification should not exceed 2 months.

According to the "Procedure for certification of pedagogical workers", the following requirements are imposed on the categories.

Requirements for the first qualification category:
- personal contribution to improving the quality of education through the improvement of teaching and upbringing methods;
-stable results of mastering by students, pupils educational programs and indicators of the dynamics of their achievements are above average in the subject of the Russian Federation.

Requirements for the highest qualification category:
- the first qualification category was established;
-possession of modern educational technologies and methods and their effective application in practice;
- stable results of learning by students, pupils of educational programs and - indicators of the dynamics of their achievements above average in the subject of the Russian Federation, including taking into account the results - participation of students and pupils in all-Russian, international olympiads, competitions, competitions;
- personal contribution to improving the quality of education on the basis of improving the methods of training and education, innovation, in the development of new educational technologies and active -distribution own experience in the field of improving the quality of education and upbringing.

At the same time, olympiads, competitions and competitions are taken into account only for the evaluation of those pedagogical workers whose work provides for these events. For example, for educational psychologists, this item is not valid.

How is the certification

The qualification test takes place in the form of an examination of the teacher's portfolio of professional achievements. The meeting of the attestation commission can take place both without the participation of the teacher undergoing tests, and in his presence. If you wish to attend the meeting, you must write in advance in the application.

If the teacher expressed his desire to attend the meeting, but did not appear at the specified time without a good reason, the attestation commission has the right to conduct an attestation in his absence.

Commission decision

In the course of certification, in order to establish the compliance of their professional level with the requirements for qualification categories, the decision of the commission is recorded and recorded in the certification sheet of the teacher. Then it is approved by the educational authorities of the constituent entity of the Russian Federation. The attestation sheet and an extract from the act of the education authority are sent to the employer.

1. If the teacher has passed the certification, a decision is made “meets the requirements for the first (highest) qualification category.

In this case, the qualification category is assigned to the teacher from the day the certification commission makes the appropriate decision. From the same date, the teacher has the right to remuneration in accordance with his category.

A record of the assignment of a category is made in the work book, in the section "Information about work". For example: “The first qualification category for the position “teacher” has been established - while the subject being taught is not indicated.

2. If the teacher has not passed the certification, a decision is made "does not meet the requirements for the first (highest) qualification category."

In this case, those who "surrendered" to the first category remain without a category, and must be certified for compliance with their position.

For those who "did not pass" to the highest - the first qualification category is retained until its expiration date. After that, the certification will have to be passed again - either to confirm the first category, or to establish the highest.

Appeal against the decision of the attestation commission

The right to appeal the results of certification is stipulated in the "Procedure for certification of teaching staff". You can file an appeal either with the labor disputes at the regional education authority, or to the court. An application to the court for resolving an individual labor dispute is filed within three months from the day when the employee found out or should have found out about the violation of his right.

In the conditions of wholesale staff reductions, personnel certification has become in Russia one of the ways to “squeeze out” unnecessary workers. However, you should not be afraid of it: legislation and judicial practice are on the side of the employee

On the forums on the Internet, you can find a lot of feedback from employees about the sudden "certification" and subsequent dismissal "due to inconsistency with the position held." Here are just a few examples.

“In connection with the financial crisis, our employer is forming an attestation commission to conduct an attestation with further dismissal under the article. The employer offers to either resign of his own free will, or he will dismiss in connection with certification. Management doesn't even want to hear about layoffs. What to do in this situation? How to protect yourself during certification? Where to apply?

“When I arrived at work, I was suddenly called to the office of the chief engineer, saying that I was undergoing certification, due to the fact that one position was being reduced, in accordance with the issued directive. I was not informed about the attestation at all, and they did not familiarize me with any documents on its conduct.

So, how legal is all this? First of all, according to paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, an employment contract can indeed be terminated by the employer in the event of "an employee's inconsistency with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification."

At the same time, the procedure for certification should be stipulated by the local acts of each company - the provisions on the certification, which must be agreed 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 familiarized with it against signature.

Of course, the provision on certification cannot contradict labor law. “There are certain socially protected segments of the population who under no circumstances fall under such a check,” explains Alexander Konovalov, a lawyer at Pepeliaev, Goltsblat and Partners, noting that, for example, dismissal based on the results of an 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 with children under the age of three and on parental leave.

Technically, the attestation procedure must also be carried out correctly: only with the consent of the elected representative of the employees or with the consent of the employee himself, in the presence of the commission. Thus, it is excluded to carry out certification on the day of the announcement of it to the employee. The recommended period for which the employer must notify the employee about the certification is one year.

In general, recruitment managers assure that appraisal is a necessary part of the personnel management system. Professional level employees grows 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, the employer often acts more subtle: those who received an unsatisfactory assessment at the certification are offered to leave “of their own free will. Or they simply intimidate her, not at all intending to arrange it in reality.

“In conditions when the supply on the labor market has grown, a weak specialist can be replaced by a stronger one, the relevance of such decisions is increasing,” admitted Maria Muzaleva, HR manager of Finam, in an interview with the website. “However, I am not aware that any companies have abused this. Mass layoffs, even though they are formally related to certification, are negative for the company's image, undermine its corporate culture, and demoralize employees.”

Indeed, mass appraisal of employees in order to significantly reduce staff 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, leaders in this case act emotionally rather than logically. It is much wiser to talk to the workforce, explain the situation, and perhaps “tighten the belts” together,” says Maxim Chernigovsky, director of the analytical department at the law firm Vegas-Lex.

Moreover, the risk of litigation in the event of numerous dismissals based on the results of certification is very high. “After all, in the case when an employee does not agree with the results of the certification, he can apply to the commission on labor disputes of the company, to the labor inspectorate or to the court. Practice shows that up to 90% of litigation on this issue ends in victory for the employee. Then the employer has to pay not only compensation to the employee, but also his legal costs,” explains Maxim Chernigovskiy.

An employee who does not agree with the dismissal based on the results of certification has a month (from the date of receipt of the work book in his hands (Article 392 of the Labor Code of the Russian Federation)) to apply to the court with a claim for reinstatement. “Of course, employees can challenge the dismissal based on the results of certification. In principle, this is correct, says Maria Muzaleva. — Only it is more correct for employees to focus on receiving the compensation provided for by law, and not on reinstatement in their previous jobs. Believe me, the employer, if desired, will always be able to find an additional reason to dismiss an employee. In the event of a positive court decision, in addition to the salary that the employee was supposed to receive while not working, compensation is paid, calculated on the basis of 1/300 of the Central Bank refinancing rate for each day of delay.