Alexey, I propose to you a similar situation regarding your question. Read the answer carefully and draw your own conclusions.
Question: A month ago, the employer, a legal entity engaged in the production of furniture, had its employees certified. Based on the results of the certification, the employee holding the position of engineer was found to be unsuitable for the position held. There are no vacant positions corresponding to the employee’s qualifications and no lower positions in the organization. During what period after certification does the employer have the right to terminate the employment contract with the engineer under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation?
Answer: An employee may be dismissed based on the results of certification under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation within the period established by a local regulatory act adopted by the employer taking into account the opinion of the representative body of employees, but no more than two months from the date of the decision on the certification results. After the expiration of the specified period, transfer of the employee to another job or termination of the employment contract with him based on the results of this certification is not allowed.
Rationale: The Labor Code of the Russian Federation does not establish deadlines for the execution of decisions of the certification commission. Similar terms, within the meaning of Part 2 of Art. 81 of the Labor Code of the Russian Federation, may be established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers. Since labor legislation and other regulatory legal acts containing labor law standards do not establish the terms of dismissal based on the results of certification, the terms of dismissal must be provided for by a local regulatory act adopted by the employer taking into account the opinion of the representative body of employees.
When developing a draft local regulatory act regarding the procedure for certification, it is necessary to take into account the Regulations on the procedure for certification of managers, engineering and technical workers and other specialists of enterprises and organizations of industry, construction, agriculture, transport and communications, approved by Resolution of the State Committee for Science and Technology of the USSR N 470, State Committee for Labor USSR N 267 dated 05.10.1973 and agreed with the Ministry of Justice of the USSR and the All-Union Central Council of Trade Unions (hereinafter referred to as the Regulations), to the extent that it does not contradict the Labor Code of the Russian Federation and other regulatory legal acts containing labor law norms.
Clause 12 of the Regulations states that the head of an enterprise or organization, taking into account the recommendations of certification commissions, applies appropriate incentive measures to employees in the prescribed manner and, in appropriate cases, within a period of no more than two months from the date of certification, can decide to transfer an employee recognized based on the results of certification not appropriate for the position held, to another job with his consent. If it is impossible to transfer an employee with his consent to another job, the head of the enterprise or organization may, within the same period, in accordance with the established procedure, terminate the employment contract with him.
Consequently, the employer has the right to terminate the employment contract with an employee who has not passed the certification within the period established in the local regulatory act, but no later than two months from the date of the decision based on the certification results.
This article will discuss how to correctly carry out the procedure to identify an employee’s inadequacy for the position held and competently dismiss him without adverse legal consequences for the employer. In addition, an example is given from judicial practice with interesting nuances of the case.
Dismissal based on certification results. General provisions
The Labor Code of the Russian Federation provides for “termination of an employment contract at the initiative of the employer” (Article 81). The mentioned article contains a number of parts with clauses, including clause 3, part 1, art. 81 about the employee’s inadequacy for the position held or the work performed due to insufficient qualifications confirmed by certification results.
The procedure for certification is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers (Part 2 of Article 81 of the Labor Code of the Russian Federation).
Dismissal on the grounds provided for in paragraph 3 of part 1 of the above article is permitted if it is not possible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower paid work) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
It should be noted that the letter of Rostrud dated April 30, 2008 No. 1028-s “On the dismissal of an employee due to insufficient qualifications” states that the dismissal of an employee on the above grounds not allowed without certification.
There is no definition of the concept of “certification” in the Labor Code of the Russian Federation. However, this term is found in the Labor Code of the Russian Federation in different meanings. So, for example, in Art. 173, art. 174 we are talking about examination tests in an educational institution. Under certification or workers, as a rule, understand the procedure, which is a comprehensive check of the level of business, personal, and sometimes moral qualities of an employee for the corresponding position in modern working conditions.
Main tasks certifications are:
- checking the professional level and skills, business qualities and/or specialized theoretical knowledge of employees;
- the ability to apply them when performing the functions specified in the employment contract;
- formation of highly qualified personnel.
It is with the help of certification that you can determine which employees need training and who can be transferred to a higher position.
At the moment, there is no regulatory legal act at the federal level that would regulate the general rules, terms, categories of employees, as well as other issues related to personnel certification. However, it should be noted that there are separate acts on this procedure for certain categories of workers in which the state is interested, in particular:
- state civil servants (Article 48 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” (as amended on April 2, 2014));
- scientific and pedagogical workers (Article 332 of the Labor Code of the Russian Federation, Article 49 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation” (as amended on July 21, 2014), Decree of the Government of the Russian Federation of September 24, 2013 No. 842 “On the procedure for awarding academic degrees” (as amended on July 30, 2014) (together with the “Regulations on awarding academic degrees”));
- experts in the field of special assessment of working conditions (Article 351.3 of the Labor Code of the Russian Federation, Federal Law dated December 28, 2013 No. 426-FZ “On special assessment of working conditions” (as amended on June 23, 2014));
- prosecutorial employees who have class ranks or occupy positions for which the assignment of class ranks is provided (clause 2 of Article 41 of the Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor’s Office of the Russian Federation” (as amended on July 21, 2014));
- aviation personnel (clause 2 of article 8 of the Air Code of the Russian Federation dated March 19, 1997 No. 60-FZ (as amended on April 20, 2014));
- rescuers (Articles 23, 24 of the Federal Law of August 22, 1995 No. 151-FZ “On Emergency Rescue Services and the Status of Rescuers” (as amended on July 2, 2013));
- persons holding positions related to ensuring the safety of navigation, flights and the movement of ground vehicles (clause 9 of the Government of the Russian Federation of August 30, 1993 No. 876 “On measures to ensure the sustainable operation of aviation, sea, river and road transport in 1993” ( as amended on October 16, 2000), Order of the Ministry of Transport of the Russian Federation, the Ministry of Labor of the Russian Federation dated March 11, 1994 No. 13/11 “On approval of the Regulations on the procedure for certification of persons holding positions of executive managers and specialists of transport enterprises” (as amended on May 11, 2000) );
- library workers (Article 26 of the Federal Law of December 29, 1994 No. 78-FZ “On Librarianship” (as amended on July 2, 2013));
- workers of a hazardous production facility (Clause 2 of Article 9 of the Federal Law of July 21, 1997 No. 116-FZ “On the Industrial Safety of Hazardous Production Facilities” (as amended on July 2, 2013));
- heads of unitary enterprises (clause 2 of article 21 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises” (as amended on December 28, 2013)).
Unlike the specialists listed above, for whom certification is a mandatory procedure, in commercial organizations it is voluntary and carried out on the initiative of management.
Important to consider that the Labor Code of the Russian Federation provides for categories of workers who are not subject to dismissal based on the results of certification(since this is dismissal at the initiative of the employer), therefore, conducting certification in relation to such employees either does not make sense, or is relevant only for the purposes of an increase in pay, position, etc.
According to Art. 261 of the Labor Code of the Russian Federation, “termination of an employment contract with a pregnant woman, with a woman with a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without a mother, with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of eighteen or the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent ( other legal representative of the child) is not in an employment relationship, at the initiative of the employer is not allowed.”
Dismissal of employees who meet these criteria based on the results of the certification and on the basis of clause 3, part 1, art. 81 of the Labor Code of the Russian Federation will be considered illegal.
In addition, the employer must be aware of general restrictions that also do not allow dismissing an employee under clause 3, part 1, art. 81 Labor Code of the Russian Federation. So, according to Part 6 of Art. 81 Labor Code of the Russian Federation, you cannot be fired in the normal way:
- employees on leave, regardless of its type;
- workers during periods of temporary incapacity.
However, it should be remembered that there are certain categories of workers who it is possible to dismiss under the above article, but only in accordance with the application of certain special procedures in accordance with the Labor Code of the Russian Federation:
- workers who are members of a trade union (Part 2 of Article 82 of the Labor Code of the Russian Federation);
- representatives of employees during collective bargaining (Part 3 of Article 39 of the Labor Code of the Russian Federation);
- workers under the age of 18 (Article 269 of the Labor Code of the Russian Federation);
- representatives of workers participating in the resolution of a collective labor dispute (Article 405 of the Labor Code of the Russian Federation);
- workers participating in a collective labor dispute or a strike (Article 415 of the Labor Code of the Russian Federation);
- workers elected to labor dispute commissions (Articles 171, 373 of the Labor Code of the Russian Federation);
- heads (their deputies) of elected collegial bodies of primary trade union organizations, elected collegial bodies of trade union organizations of structural divisions of organizations - not lower than workshops and equivalent to them (Articles 374, 376 of the Labor Code of the Russian Federation).
Features of certification
To carry out certification it is necessarydevelop and approve regulations (local regulations) on certification.
When developing a draft local act, the employer has the right to use as a recommendation document Resolution of the State Committee for Science and Technology of the USSR No. 470, State Committee for Labor No. 267 of 10/05/1973 “On approval of the Regulations on the procedure for certification of management, engineering and technical workers and other specialists of enterprises and organizations of industry, construction, agriculture economy, transport and communications" (together with the "Standard list of positions of management, engineering and technical workers and other specialists in industry, construction, agriculture, transport and communications and other sectors of the national economy, subject to certification in accordance with the Resolution of the Council of Ministers of the USSR of July 26 1973 No. 531, approved by Resolution of the State Committee for Science and Technology of the USSR, State Committee for Labor of the USSR dated October 22, 1979 No. 528/445) (as amended on November 14, 1986; hereinafter referred to as the Regulations). This Regulation must be applied taking into account Art. 423 Labor Code of the Russian Federation. The developed certification regulations must be approved by the head of the organization.
The main stages of preparation and certification are the following:
- issuing an order for certification;
- creation of a certification commission;
- coordination of the certification schedule;
- familiarization against signature of the entire working team and each newly hired person (according to Part 3 of Article 68 of the Labor Code of the Russian Federation);
- preparation of necessary documents for the work of the certification commission;
- approval of the preparatory list of questions for certification tasks;
- carrying out certification;
- summarizing.
Certification can be carried out either planned, in accordance with the schedule approved by the certification commission or the head of the organization, or unscheduled - on the initiative of the employee himself or his manager.
The timing of scheduled certification for employees, as a rule, does not exceed once every three to five years.
The organization sets the deadline for certification independently, depending on the number of employees subject to certification, the possibility of carrying it out in one or several departments at the same time, and other factors. The forms of certification are selected depending on the specifics of the profession of the person being certified. Thus, it could be a written exam, testing, a practical task (problem solving), making a sample (glassblowing).
One of the most important points when preparing certification is evaluation criterion. On its basis, the qualification level of the certified workers is assessed and the correspondence of this level to the work performed is established.
Such criteria may include the following:
- compliance with the qualification requirements for the position being filled, approved in the prescribed manner;
- determining the employee’s participation in solving the tasks assigned to the relevant structural unit;
- the complexity of the work he performs;
- results of the employee’s performance of the job description;
- undergoing advanced training and professional retraining.
As an example for the development of evaluation criteria and their documentation, the Regulations on the procedure for certification of employees of the Pension Fund of the Russian Federation, approved. Resolution of the Board of the Pension Fund of the Russian Federation dated January 15, 2007 No. 5p. This document presents a scale for assessing the professional, business, moral and psychological qualities of an employee and the characteristics of a manager being certified in points, a table of criteria for assessing the certified person, as well as a description of the criteria for assessing the certified person at four levels of the scale. Also, the criteria can be determined in accordance with the requirements for specialties established in the Qualification Directory of Positions of Managers, Specialists and Other Employees, approved. Resolution of the Ministry of Labor of the Russian Federation dated August 21, 1998 No. 37 (as amended on February 12, 2014).
Based on the established criteria, appropriate test forms, examination questions, etc. are developed.
The certification process is recorded in protocol, where all information about its implementation, information about the certified person and assessments of his qualifications are indicated. The results of the event are documented in writing as attachments to the protocol.
At the end of the certification, the commission conducts a discussion and makes a decision on each employee in the manner established by the regulations (this can be an open or closed vote, in the presence or absence of the employee). The decision made based on the results of the certification and reflected in the protocol is communicated to employees against signature within the time period specified by the regulations. It is advisable to provide in the regulations that the meeting of the certification commission will be considered valid if at least two thirds of its members are present.
The results identified during the certification can be recorded in the employee’s personal card in the appropriate section. If the personnel service uses the unified form No. T-2, then the following information is entered into section IV “Certification”: date of certification, decision of the certification commission and details of the basis document (protocol or other).
The employer needs to know that in accordance with Order of the Ministry of Culture of Russia dated August 25, 2010 No. 558 “On approval of the “List of standard management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods””, the storage period for minutes of meetings certification, qualification, tariff commissions, documents (protocols of counting commissions, secret ballot ballots) for them is 15 years, and in enterprises with difficult, harmful and dangerous working conditions, the storage period increases and is 75 years.
Before carrying out the certification, you should make sure that the necessary local regulations are in full order and that job descriptions/professional instructions have been drawn up for all positions in the organization with clear indications of the responsibilities that must guide the certified employee. Otherwise, if the employer decides to dismiss the employee based on the results of certification, and the dismissed employee subsequently goes to court with a claim for reinstatement at work, payment of wages for forced absence and compensation for moral damage, then in the absence of the necessary local regulations, including Job descriptions/professional instructions play an important role; the court may declare the certification results invalid and the dismissal of an employee illegal.
Arbitrage practice
So let's consider two examples from judicial practice with opposing decisions made by the judicial panel.
In the first example citizen A. went to court and filed a claim against the Federal State Budgetary Institution “National Park “V. Bor” (hereinafter referred to as the Federal State Budgetary Institution “V. Bor National Park”) with a request to invalidate the results of the certification, the order for his dismissal, and also to recognize the dismissal as illegal, reinstate him in his previous position with a salary in accordance with the staffing table and recover from employer's average salary during forced absence.
Plaintiff's position
A. worked at the Federal State Budgetary Institution “National Park “V. Bor” from 03/01/2008 to 12/01/2013, where he held the position of head of the park security service. 09/01/2013 at the Federal State Budgetary Institution “National Park “V. Bor”, an extraordinary certification was carried out, according to the results of which he was recognized as an employee inappropriate for his position. Further, due to the lack of vacancies, the plaintiff was dismissed by Order No. 255/k dated December 1, 2013 on the grounds provided for in clause 3, part 1, art. 81 Labor Code of the Russian Federation.
A. believes that his dismissal is illegal, since the Order “On carrying out an extraordinary certification” dated August 1, 2013 No. 21-K/O did not indicate what exactly his violations were, or what documents from law enforcement agencies confirm the facts of these violations. Also, the plaintiff was not familiar with the documents regulating the certification procedure and objective assessment criteria.
Defendant's position
Representatives of the defendant A.O., acting on the basis of a power of attorney, objected to the satisfaction of the claims, motivating their arguments by the fact that the certification took place on a legal basis, in accordance with the regulations and all local regulations that existed at the time of the certification, with which the plaintiff was in advance familiarized
Court position
Based on clause 3, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer if the employee is not suitable for the position held or the work performed due to insufficient qualifications confirmed by certification results. At the same time, dismissal on this basis is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his health status.
Part 2 of Art. 81 of the Labor Code of the Russian Federation stipulates that the certification procedure is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.
The compliance of the actually performed duties and qualifications of employees with the requirements of job characteristics is determined by the certification commission in accordance with the regulations applied in the organization on the certification procedure.
Regulations on the certification of employees of the Federal State Budgetary Institution “National Park “V. Bor”, approved on February 1, 2013, established the grounds for conducting an extraordinary certification, defining the procedure and conditions for conducting certification of employees of a budgetary institution.
As follows from the case materials, A. was dismissed on December 1, 2013 from the post of head of the security service of the Federal State Budgetary Institution “National Park “V. Bor”, due to inadequacy of the position held due to insufficient qualifications, confirmed by certification results on the basis of clause 3, part 1, art. 81 Labor Code of the Russian Federation. The plaintiff is familiar with the dismissal order: the dismissal order No. 255/k dated December 1, 2013 bears his signature.
The court found that the plaintiff, having a special education, appropriate work experience, and having completed training in advanced training courses, at the time of certification could correspond to the position held.
The employer, in connection with the revealed facts of illegal logging of forest plantations and theft of wood on the territory of the park in the blocks assigned to the plaintiff, by order of the Federal State Budgetary Institution “National Park “V. Bor” dated 01.08.2013 No. 21-K/O, an extraordinary certification of employees was appointed, based on the results of which the certification commission decided that A. was not suitable for the position held. This was the basis for terminating the employment contract with him. The certification results are documented in the minutes of the meeting of the certification commission dated November 24, 2013 No. 38p, by order of the Federal State Budgetary Institution “National Park “V. Bor” “On the results of certification of national park employees” dated November 25, 2013 No. 26-K/O.
The date of the extraordinary certification of employees, the composition of the certification commission, the lists of employees subject to certification, as well as the action plan for the preparation and conduct of certification were approved by the defendant’s order No. 22-K/O dated August 10, 2013, which the plaintiff became familiar with on August 11, 2013, as evidenced by his signature on the said document.
Based on the results of the certification, a certification sheet was drawn up for employee A, which assessed his activities as inappropriate for the position held.
Court, refusing to satisfy A.'s claims, having examined the evidence presented by the parties, guided by the above rules of law, came to the reasonable conclusion that the plaintiff’s dismissal was carried out in accordance with current labor legislation, and established that there were no violations of the dismissal procedure and procedure by the defendant.
In this case, the court proceeded from the fact that the extraordinary certification was carried out by the employer in accordance with the Regulations on the procedure for conducting certification. The plaintiff was familiarized with it on the date established by order of the head of the organization. During the certification process, the plaintiff was asked only questions related to the performance of his official duties. The plaintiff was promptly notified of the upcoming certification and was familiarized with the certification characteristics of the employees’ performance of official duties. After familiarizing himself with the characteristics of the objections regarding the information contained in them, A. did not declare or indicate to the certification commission additional information about his professional activities. In connection with this, the panel of judges considers the plaintiff’s arguments in this part to be unfounded.
Judicial panel agrees with the conclusions of the defendant's representatives regarding the objective assessment by the certification commission of the plaintiff’s business and personal qualities, compliance with the procedure for conducting extraordinary certification, since these conclusions of the defendant’s representatives are motivated and correspond to the circumstances established in the case.
Taking into account the employer’s lack of vacant positions corresponding to the employee’s qualifications, the assessment of the certification commission, the approval of the plaintiff’s dismissal with the trade union organization, the court’s conclusion on the legality of A.’s dismissal under clause 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation is legal.
Taking into account that the request to reinstate A. at work was refused, the court rightfully left without satisfaction the demand to recover from the employer the average salary for the period of forced absence.
The panel of judges cannot take into account the arguments that the certification characteristics were not signed by the immediate supervisor of the plaintiff, since the official had the authority to draw up and sign the characteristics, delegated by the head of the Federal State Budgetary Institution “National Park “V. Bor”” when organizing preparatory work for certification dated August 10, 2013 No. 23-K/O.
In establishing the plaintiff’s awareness of the norms of the Regulations on the Certification of Workers, the court rightfully took into account a copy of the register of familiarization of employees of the Federal State Budgetary Institution “National Park “V. Bor” with local regulatory documents, where the plaintiff signed with his own hand, in connection with this, the judicial panel considers the arguments about the inadmissibility of accepting the specified document as evidence to be unfounded.
Based on the above, having listened to the positions of the plaintiff and defendant, the conclusion of the prosecutor of the prosecutor’s office, having checked the case materials, having discussed the arguments and the prosecutor’s objections regarding them, The judicial panel decided to deny citizen A.’s claim.
Second example shows us a different picture of the resolution of a legal dispute regarding a dismissed employee who has not passed the certification.
So, a former employee of the medical institution LLC "M" Yu. filed a lawsuit against her former employer to declare her dismissal illegal, reinstate her in her previous position, and also demand to recover from the employer the average salary for the period of forced labor. absenteeism and pay compensation for moral damage in the amount of fifty thousand rubles.
Plaintiff's position
Yu. went to court with the above requirements, based on the fact that her dismissal was illegal. The plaintiff motivated her arguments by the fact that the certification commission was created by the decision of the head of this medical institution from doctors of other specialties working in the same institution. At the same time, the validity period of Yu’s qualification category has not expired.
Defendant's position
The defendant objected to the claims, citing the fact that conducting an extraordinary certification is not prohibited by law. The employer prepared this certification in accordance with all norms and rules in accordance with labor legislation.
Court position
The judicial panel, having listened to the arguments presented by the plaintiff and the defendant, having carefully studied the materials of the said case, decided to recognize the dismissal of the doctor, whose qualification category had not expired, based on the results of the certification carried out by the certification commission, created by the decision of the head of the medical institution from doctors of other specialties working in the same institution, illegal.
An employment contract can be terminated by the employer, including if the employee is not suitable for the position held or the work performed due to insufficient qualifications confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code of the Russian Federation). At the same time, the procedure for conducting certification is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers (Part 2 of Article 81 of the Labor Code of the Russian Federation). If certification has not been carried out, the employer does not have the right to dismiss an employee on this basis (clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on September 28, 2010)).
Medical workers have the right to basic guarantees provided for by labor legislation and other regulatory legal acts of the Russian Federation, including certification to obtain a qualification category in the manner and within the time frame determined by the authorized federal executive body (clause 4, part 1, art. 72 of the Federal Law of November 21, 2011 No. 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation” (as amended on July 21, 2014; hereinafter referred to as Federal Law No. 323-FZ)). Consequently, the timing of certification cannot be set arbitrarily.
Certification is carried out once every five years. The assigned qualification category is valid throughout the Russian Federation for five years from the date of publication of the administrative act on assignment (clause 5 of the Procedure and deadlines for medical workers and pharmaceutical workers to undergo certification for obtaining a qualification category, approved by Order of the Ministry of Health of Russia dated April 23, 2013 No. 240n ( further - Order)).
Approval of the procedure for certification of specialists with higher and secondary medical education for assigning them a qualification category falls within the competence of the Ministry of Health of Russia (clause 12, part 2, article 14 of Federal Law No. 323-FZ, clause 1 of the Regulations on the Ministry of Health of the Russian Federation, approved Decree of the Government of the Russian Federation dated June 19, 2012 No. 608 (as amended on July 16, 2014)).
The procedure for certification of medical workers does not provide for the right of the head of a medical institution to create a certification commission by his order, since the defendant is not a government body and is not vested with the authority to establish the procedure for certification of medical workers and, accordingly, did not have the right to issue relevant local acts.
The certification commission must include specialists with high qualifications and knowledge necessary to conduct a qualification exam in the specialties of the persons being certified (clauses 14, 17 of the Procedure).
From the above it follows that in this case the certification commission was created by the decision of a person who does not have the relevant competence, the terms of certification were violated, the commission did not include persons with the same specialty as the person being certified, that is, persons with the necessary knowledge for assessing the qualifications of the person being certified. Thus, the dismissal of the doctor in this case was carried out without proper certification and is illegal.
Court statement
The panel of judges ruled: the claim of citizen Yu. satisfy in full. Recognize the dismissal under clause 3, part 1. Art. 81 of the Labor Code of the Russian Federation is illegal to reinstate a former employee of M LLC in his previous position with the same salary in accordance with the staffing table. To recover from the defendant in favor of the plaintiff the average salary for the period of forced absence, as well as to pay compensation for moral damage in the amount of fifty thousand rubles.
As we can see from the above court decisions, in the first case the employer acted within the scope of his powers, scrupulously observing all the rules, therefore the employee’s claims were not satisfied by the court. In the second case, the employer grossly exceeded his authority, which served as the basis for satisfying the claim in full, including a claim for compensation for moral damage.
A. A. Panova, lawyer, head of personnel services
L.A. Elina,
leading expert
Dismissal of employees based on certification results
Develop and approve the certification regulations
You can take as a basis the old Soviet Regulations on the procedure for conducting certification And Articles 8, 81 of the Labor Code of the Russian Federation; Regulations, approved Resolution of the State Committee for Science and Technology of the USSR No. 470, State Committee for Labor of the USSR No. 267 of 05.10.73 (hereinafter referred to as the Soviet Regulations). Moreover, it is better not to prescribe rules in your local certification regulations that will worsen the conditions for your employees compared to the Soviet Regulations.
At the same time, there are regulations governing certification in relation to certain categories of workers. For example, when certifying scientific and pedagogical workers in universities, one must adhere to the Regulations on the procedure for conducting certification, approved by the Ministry of Education and Science And Order of the Ministry of Education and Science dated March 30, 2015 No. 293. If your organization is subject to any industry credentialing regulation, you must consider its rules.
Attention
Company employees must be familiarized with the certification regulations against signature. And Art. 22 Labor Code of the Russian Federation.
Fix in your position how the certification commission will be formed. Write down the timing and form of the certification, as well as what exactly it will consist of. Approve evaluation criteria for various categories of employees. Based on the established criteria, forms of tests, questionnaires and/or lists of questions can be developed for specific categories of workers.
If the company has a trade union, do not forget to take its opinion into account when approving the certification regulations And Art. 8, part 2 art. 81, art. 372 Labor Code of the Russian Federation; pp. 24,.
The certification regulations must be approved by order of the manager.
Form an attestation commission
The certification commission, as a rule, includes a chairman, members of the commission (including the deputy chairman) and a secretary. The commission may include experts from among highly qualified workers, as well as heads of relevant departments. Your position may provide the opportunity for independent experts who are not employees of your organization to participate in the commission.
Reference
When forming qualification requirements, you can focus on the norms of the professional standard, the Unified Qualification Directory or the Unified Tariff and Qualification Directory.
Be sure to include in the certification commission a representative of the elected body of the trade union organization (if it There is) Art. 82 Labor Code of the Russian Federation.
Approve the names of the certification commission by order of the head to conduct certification And clause 5 of the Soviet Regulations; Art. 82 Labor Code of the Russian Federation.
Prepare for certification
Inform employees about the upcoming certification within the time period established by your certification regulations.
No later than 2 weeks before certification, for each employee being certified, the immediate supervisor must provide written feedback (characteristics) to the members of the commission y) clause 6 of the Soviet Regulations. The review reflects the assessment of the employee’s performance, his qualifications, and also indicates the extent to which he complies with labor discipline.
No later than a week before the certification, familiarize the employee with the feedback submitted to him m clause 6 of the Soviet Regulations.
Conduct certification
As a rule, the employee being certified answers test questions or has an oral conversation with members of the commission - this depends on the specifics of the certification.
Reference
Certification cannot be carried out in relation to And clause 4 of the Soviet Regulations:
pregnant women;
women with children under 1 year of age;
employees who have worked in their position for less than 1 year.
And based on negative certification results, you cannot fire an entire group of people. Including women with children under 3 years of age, and single mothers raising a child under 14 years of age (disabled child under the age of 18 years) Art. 261 Labor Code of the Russian Federation.
An employee's assessment should be based on his compliance with the qualification requirements for the position as set out in his job description and/or employment contract. In doing so, take into account the employee’s professional knowledge, work experience, advanced training, retraining and other data.
Please note that:
during certification, the secretary of the certification commission must keep minutes of its meeting in free form;
the voting results must be determined by a majority vote. If there is an equality of votes in assessing the performance of the certified employee, he must be recognized as having successfully passed the certification and appropriate for the position held;
the voting results must be entered into the minutes l clause 8 of the Soviet Regulations;
these results must be announced to the employee being certified immediately after summing up the voting results of the members of the certification commission;
conclusions about the certification (or non-certification) of the employee must be entered into the certification sheet clause 9 of the Soviet Regulations. This sheet must be compiled in two copies:
One copy of it, along with the review of the employee, must be kept in his personal file;
The second must be given to the employee, preferably against signature;
the results of employee certification must be entered in section IV of the personal card in form No. T-2;
Attestation sheets for employees completed by the commission must be handed over to the head of the company.
Attention
It is impossible to dismiss an employee based on the results of certification during a period of temporary incapacity for work or while on vacation. I Art. 81 Labor Code of the Russian Federation.
Keep in mind that an employee can challenge the legality of his dismissal based on the results of certification if, for example, the procedure for conducting such certification was violated. Thus, one employee managed to be reinstated by a court decision, since the questions specified in the attestation sheet did not meet the requirements of the job description, and the employee’s answers to the questions of the commission members were not recorded s Appeal ruling of the Krasnoyarsk Regional Court dated December 24, 2014 No. 33-12241. And the other employee was reinstated, since the certification consisted only of the announcement of the review submitted to her immediate supervisor m Appeal ruling of the Yamalo-Nenets Autonomous Okrug court dated 06/05/2014 No. 33-1144/2014.
Formalize management’s decision based on the certification results
All personnel decisions regarding an employee (for example, dismissal) can only be made within 2 months from the date of certification And clause 12 of the Soviet Regulations. If the manager decides to leave him in his previous position, then nothing needs to be done.
If the manager wants to dismiss an employee from his position, all procedures preceding such dismissal must be strictly followed.
Reference
If the employee is a member of a trade union, then before dismissing him, you need to take into account the opinion of this trade union (the elected body of the primary trade union organization And) Articles 82, 373 of the Labor Code of the Russian Federation; pp. 24, 31 Resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2.
If the employee is the head or deputy head of an elected collegial body of a trade union organization, then the employer must request the prior consent of a higher-level elected trade union body A Art. 374 Labor Code of the Russian Federation.
But even if the trade union is against it, it is still possible to fire an employee O Articles 373, 374 of the Labor Code of the Russian Federation. Only the dismissal procedure will become somewhat more complicated. We will have to conduct additional consultations with the trade union and draw up protocols based on their results.
If during such consultations it is not possible to reach an agreement with the trade union, the employer may decide to dismiss the employee.
Such a decision can be appealed to the labor inspectorate. And if it recognizes it as illegal, the organization will receive an order to reinstate the employee at work with payment for forced absence. This order can be challenged in court.
Also, the employee himself or the trade union can apply directly to the court regarding the legality of the dismissal of an employee. h Articles 373, 374 of the Labor Code of the Russian Federation.
An employee who is found to be unsuitable for the position held must be offered vacant positions (work in the same area), both corresponding to his qualifications and those of lower or lower pay. Higher positions - only if this is provided for in the collective and/or labor contract and agreements And Part 3 Art. 81 Labor Code of the Russian Federation.
Offers of vacant positions must be made in writing. Also require the employee's response in writing. If the employee agrees, then formalize the transfer with an additional agreement to the employment contract at Art. 72 Labor Code of the Russian Federation.
If the company does not have suitable vacancies or the employee refuses the vacancies you offered, issue an order to terminate the employment contract. To do this you can use the form No. T-8 clause 3, part 1, art. 81 Labor Code of the Russian Federation.
In the work book, the dismissal entry looks like this.
As a general rule, there is no requirement to pay severance pay to a fired employee. But its payment may be provided for in the company’s collective agreement, local regulations or employment contract with the dismissed employee.
Failure to pass the certification is grounds for dismissal at the initiative of the employer. Here it is important to comply with legal requirements and know step-by-step instructions, otherwise termination of the employment contract may be declared unlawful in court.
What is certification?
Certification of employees is a set of measures aimed at determining professional knowledge, qualities and skills. At enterprises, it is usually held annually in the form of an exam: employees are given tickets with questions that they need to answer within a certain time.
What are the purposes of certification:
- Assessment of competence and skills.
- Determination of the level of professional training.
- Determining the suitability of the position for the level of training.
- Potential analysis.
According to the law, certification must be carried out at least once every 3 years, but enterprises may have annual exams, which is not a violation if the deadlines are reflected in local regulations.
“To increase the level of knowledge, certification should be introduced in all areas, especially tourism. In a number of regions, in order to develop tourism, all guides take exams, but they are voluntary. It is necessary to issue a law on mandatory examination control, this will improve the quality and competitiveness of tourism products,” says E.P. Stenyakina, Chairman of the Committee on Youth Policy, Physical Education and Sports of the ZSRO.
The following forms of certification are considered the most common:
| View | Description |
| Interview with the manager | The employer himself conducts a conversation and determines the employee’s qualification level by asking questions on professional topics. |
| Collegial interview | Conducted in the presence of a commission. The subject provides a report on his work, its positive and negative aspects, and answers questions |
| Written exam or testing | Employees are given tickets with questions or tests. Based on the results, the correct number of answers is determined and a score is assigned. |
How is certification carried out?
Professional certification is carried out in several stages:
- The employer draws up an internal regulatory act - Regulations on the certification of employees. It specifies the goals, objectives, timing, composition of the commission, and evaluation criteria. Subsequently, each employee gets acquainted with the document against signature.
- An attestation commission is being formed. It usually includes a secretary, a chairman and his deputy, a trade union representative (if one operates in the company) and at least three examiners. The composition of the commission is approved by order of the head.
- Preparation of documents for the commission: assessment forms for work and business qualities, reports, conclusions.
- Carrying out certification.
- Summing up the results of the certification. The conclusion indicates “corresponds to the position held”, or vice versa – “does not correspond”. A summary report is compiled and sent to the director of the organization.
How to fire an employee based on certification results: step-by-step instructions
For the dismissal to be lawful, the employer must follow several rules:
| Rule | Link to law |
| After receiving an unsatisfactory assessment based on the results of certification by an employee, the manager cannot immediately dismiss him on the basis of clause 3 of Art. 81 Labor Code of the Russian Federation. He must offer the employee another position corresponding to his qualifications and experience. | Letter of Rostrud dated April 30, 2008 No. 1028 |
| Dismissal of a pregnant woman is not allowed, except for the termination of the enterprise's activities. It is also impossible to dismiss an employee raising a child under three years of age, a minor under 14 years of age, or a disabled minor. | Art. 261 Labor Code of the Russian Federation |
| You cannot fire an employee who is on vacation or sick leave, except in the case of termination of the employment contract at his request | Art. 81 Labor Code of the Russian Federation |
The step-by-step algorithm for dismissal based on the results of certification is as follows:
- The manager receives the commission’s conclusion, gets acquainted with the certification materials and makes a decision to dismiss the employee. The deadline for making a decision must be established in the Attestation Regulations. The employment agreement cannot be terminated later than the established date, otherwise the employee will be able to challenge the employer’s actions.
- The director offers the employee who has not passed the test vacant positions that correspond to his qualifications. This is done by drawing up a written notice, on which the employee must put his signature and a note indicating his consent or disagreement to move to a specific place.
- If a subordinate agrees to leave for another position, a transfer procedure is carried out. If he refuses all offers, the employer draws up an act to this effect and initiates termination of the employment contract by issuing a dismissal order, which he acquaints the dismissed person with signature.
- If the employee refuses to sign the order, a corresponding act is drawn up about this in the presence of two witnesses. Refusal to confirm familiarization with the document is not grounds for canceling dismissal.
- On the last day of work, the employee’s work book is filled out. All documents are handed over to him, and a full payment of wages and unused vacation is made.
Important! The employer may, at its discretion, not fire an employee who has not passed the certification, but send him to training or advanced training courses if he considers that he has potential. Managers are not directly obliged to terminate employment contracts in the event of an unsatisfactory exam grade; everything is done at their discretion.
Is it possible to fire an employee if he refuses certification?
According to the Labor Code of the Russian Federation and judicial practice, refusal to undergo certification is not grounds for dismissal, unlike failure to pass the exam. In most cases, the courts side with the employees and oblige managers to restore them to their previous positions.
Employers, if subordinates refuse certification, can impose disciplinary sanctions on them under Art. 192 Labor Code of the Russian Federation:
What payments are due to those dismissed due to unsatisfactory certification results?
The only obligation that the enterprise has to such employees is the transfer of wages for the period of time worked. If the dismissed person does not take the required vacation, he is entitled to compensation. Additional payments upon dismissal for this reason are not provided.
According to the old rules, a teacher who wanted to earn more could, at his own request, apply for assignment to 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 education department, and the highest - by the ministry.
According to the new rules, the second category was abolished altogether, and the certification of teaching staff was entrusted to educational authorities at the level of the constituent entity of the Russian Federation. At the same time, certification has become mandatory: once every five years, every teacher who does not have a category, regardless of desire and work experience, must undergo certification in order to confirm compliance with the position held.
Those teachers who wish to receive the first or highest category can instead submit an application for certification to determine whether their professional level meets the requirements for the 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 cancelled.
After this
:
- a teaching worker of the first category will have to either submit an application for certification to be assigned the first category, or undergo certification in the general manner to confirm compliance;
- a teaching worker of the highest category will be forced to first be certified for the first category, and only after two years he will receive the right 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 certification for suitability for the position held
Mandatory certification is carried out every five years to confirm the suitability of the teaching staff for the position held.
Who must pass the certification
Teaching staff who do not have categories and have not expressed a desire to undergo certification for a qualification category.
To whom No need pass certification
-teachers who have worked for less than 2 years in this position;
-pregnant women and women on maternity leave and child care leave until the child reaches the age of 3 years. Their certification is carried out no earlier than two years after leaving the specified vacations.
Teachers are represented by their employer for certification in order to confirm their suitability for the position held.
If he does not work in different teaching 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 employed.
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 representation for the teacher. The submission is completed in accordance with the established form (there is a sample). In this document, the employer comprehensively evaluates the professional skills of the teacher and his work in his position. The document must also contain information about the teacher’s completion of advanced training courses and information about the results of previous certifications.
No later than a month before the start of the certification, the employer acquaints the teacher with the presentation against signature.
The employer submits documents to the certification commission of the constituent entity of the Russian Federation, where it receives information about the date, place and time of the teacher certification.
The certification period should not exceed 2 months. No later than a month before the certification, the employer brings to the attention of the teaching worker information about the date, place and time of his certification.
How is certification carried out?
During certification, in order to confirm compliance with the position held by teachers, they undergo written tests on issues related to their professional activities or computer testing, which allows them to determine the level of proficiency in modern teaching and education methods.
Commission decision
In accordance with paragraph 13 of the “Procedure for Certification of Teaching Workers,” the decision of the certification commission is documented in a protocol and entered into the certification sheet of the teaching worker. This document, as well as an extract from the administrative act of the certification commission, are stored in the teacher’s personal file.
Upon successful completion of the certification, the commission issues a verdict: “suitable for the position held.”
If the tests are failed, the commission decides that the teacher is “not suitable for his position.”
In this case, the employment contract with the teaching employee may be terminated in accordance with clause 3. part 1. art. 81 Labor Code of the Russian Federation. However, the employer is not obliged to fire a teacher who has not passed the certification. For example, he may offer him to take advanced training courses and, upon completion, undergo re-certification.
In addition, dismissal is not allowed if it is possible to transfer the teaching employee 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 disability and while on vacation;
-a pregnant woman, as well as a woman with children under three years of age;
a single mother raising a child under fourteen years of age or a disabled child up to eighteen years of age;
- other persons raising these children without a mother.
Voluntary certification for obtaining the first or highest category
Voluntary certification is carried out on the basis of an application from a teaching worker to determine whether his qualifications meet the requirements for the first or highest qualification categories.
Who is eligible to undergo certification?
1. An application for certification for assignment to the first category may be submitted by:
-teaching workers who have no categories;
- teaching staff with the first category - if the validity period of the previous “voluntary certification” is coming to an end.
2. An application for certification for assignment to the first category can be submitted by:
- teaching staff with the first category - but not earlier than 2 years after its assignment;
- teaching staff with the highest category - if the validity period 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 until the child reaches the age of 3 years also have the right to submit an application for voluntary certification.
Who is applying for certification?
Each teacher does this independently. The law does not establish centralized deadlines for submitting applications and periods for certification, so a teacher can submit documents for certification at any time.
Teachers who already have a category are recommended 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 submit documents for certification
1. A teacher who decides to submit an application for voluntary certification collects a package of documents:
- application in the prescribed form (there is a sample);
- a photocopy of the certification sheet of the previous certification (if there was one);
- a new certification sheet filled out up to point 7 inclusive;
- a portfolio of your professional achievements (there are recommendations for compilation), which can be submitted to the certification commission both at the time of submitting the application and within a month after that.
2. The package of documents is submitted to the certification commission -
3. Within a month, the commission reviews the application and sets the date, place and time for the teacher’s certification. The certification period should not exceed 2 months.
According to the “Procedure for Certification of Teaching Workers,” the following requirements are imposed on the categories.
Requirements for the first qualification category:
-personal contribution to improving the quality of education based on improving teaching and educational methods;
-stable results of students mastering educational programs and indicators of the dynamics of their achievements are above average in the constituent entity of the Russian Federation.
Requirements for the highest qualification category:
-the first qualification category has been established;
- mastery of modern educational technologies and methods and their effective application in practice;
-stable results of students mastering educational programs and -indicators of the dynamics of their achievements are above average in the constituent entity of the Russian Federation, including taking into account the results -participation of students and pupils in all-Russian and international olympiads, competitions, competitions;
-personal contribution to improving the quality of education based on improving teaching and upbringing methods, innovative activities, in the development of new educational technologies and active dissemination of one’s 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 assessment of those teaching staff whose work includes these events. For example, for educational psychologists this point is not valid.
How is certification carried out?
The qualification test takes the form of an examination of the teacher’s portfolio of professional achievements. The meeting of the certification commission can take place either without the participation of the teacher undergoing testing, or in his presence. You must write in advance in your application if you wish to attend the meeting.
If the teacher expressed his desire to attend the meeting, but did not appear at the meeting within the specified period without a good reason, the certification commission has the right to conduct certification in his absence.
Commission decision
During certification, in order to establish compliance of their professional level with the requirements for qualification categories, the decision of the commission is recorded and recorded on the certification sheet of the teaching worker. Then it is approved by the educational authorities of the constituent entity of the Russian Federation. The certification sheet and an extract from the act of the educational authority are sent to the employer.
1. If the teacher has passed certification, a decision is made “meets the requirements for the first (highest) qualification category.
In this case, the qualification category is assigned to the teaching worker from the day the certification commission makes the corresponding decision. From the same date, the teacher has the right to wages in accordance with his category.
An entry about the assignment of a category is made in the work book, in the “Work Information” section. For example: “The first qualification category for the position of “teacher” has been established - but the subject taught is not indicated.
2. If the teacher has not passed certification, a decision is made “does not meet the requirements for the first (highest) qualification category.”
In this case, those who “passed” for the first category remain without a category and must undergo certification for suitability for the position held.
Those who “failed” to the highest level are retained in the first qualification category until its expiration date. After which the certification will have to be taken again - either to confirm the first category, or to establish the highest.
Appealing the decision of the certification 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 to the labor dispute commission at the regional education authority or to the court. An application to the court to resolve an individual labor dispute is filed within three months from the day the employee learned or should have learned of a violation of his rights.
