If the employee does not correspond to the position held or the work performed due to insufficient qualifications. This basis is provided for in paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Consider the features of such a dismissal.
To dismiss an employee under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation - due to inconsistency with the position held or the work performed due to insufficient qualifications, the employer must conduct certification:
- receive a negative conclusion on the qualifications of the employee, made as a result of the certification;
- to establish the absence of a vacancy to which the employee can be transferred, or to record the employee's refusal from such a vacancy.
Conditions for the dismissal of employees under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation
It should be noted that the presence of grounds for dismissal gives the employer the right to terminate the employment contract with the employee, but does not oblige him to do so.
The certification procedure is established by labor legislation or other regulatory legal acts containing labor law norms (part 2 of article 81 of the Labor Code of the Russian Federation).
The current legislation does not contain a single norm regulating the procedure and conditions for the certification of employees. These rules are contained in special regulatory legal acts adopted in relation to a particular category of workers. If there are no such regulations for a specific category of employees yet, the head of an enterprise or organization has the right to adopt an appropriate regulation on the procedure and conditions for attestation of employees.
One of the main requirements for certification is the presence of a special organizational and legal form - the requirements established by the regulatory procedure for the preparation of certification, the availability of a list of employee evaluation criteria, as well as methods for evaluating an employee according to these criteria, regulation of the procedure for certification and decision-making by the certification commission.
According to paragraph 14 of Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee who does not correspond to the position held or the work performed is allowed if it is impossible to transfer him to another job available to the employer (both to a vacant position or job corresponding to the employee’s qualifications, and to a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health. The employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area, and obtain a written consent to the transfer. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
Some features of the certification procedure
What are the requirements for the composition of the attestation commission?
A cumulative assessment of all information about the professional qualities of the person being certified and the results of his work is carried out by an attestation commission created by the employer. The Labor Code of the Russian Federation does not contain requirements for the composition of the attestation commission, with the exception of the need to include a representative of the elected body of the primary trade union organization in it. If there is no trade union organization, attestation is carried out without the participation of its representative.
The employer has the right to independently determine the certification procedure, including the requirements for the qualitative composition of the certification commission, and fix it in a local act.
The employer has the right to independently determine the certification procedure and fix it in a local act.
Inclusion in the composition of the commission of persons who are not employees of the organization is permissible. This is an opportunity, not an obligation of the employer. However, the attestation commission can also consist only of employees of this company, as was indicated in the Appeal ruling of the Samara Regional Court dated December 25, 2014 in case No. 33-12913 / 2014.
If certification is composition of the attestation commission different from that approved by the order, such a commission may be recognized as unauthorized, and its results invalidated. Example - Appellate ruling of the Supreme Court of the Altai Republic dated 07/03/2013 in case No. 33-440.
If the procedure for conducting the first certification is violated, and the second one is observed
If the results of the first certification, which passed with a violation, served as the reason for re-certification, then the results of the last one also cannot be recognized.
Example - Appellate ruling of the Kursk Regional Court dated August 23, 2012 in case No. 33-1946-2012. The chief accountant of the Center for Employment of the Population, whose work experience in this institution was 19 years, was dismissed on the basis of paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation by decision of the repeated certification commission. The court ruled that the dismissal was unlawful. The first certification, at which the re-certification was scheduled, was carried out in the absence of the chairman of the certification commission, who nevertheless signed its decision. The court declared the dismissal unlawful.
If an employee was appointed to one position, and another is indicated in the job description, how to conduct certification?
The job description defines the functional duties, rights and responsibilities of the employee. If issued in the name of a specific employee, this is proof that it must act in relation to the person named in it. The fact that such an instruction is issued in the name of a specific employee indicates that the obligations stipulated by it apply specifically to him. The fact that the employee has never contacted the employer about the discrepancy between the position held and the one prescribed in the instructions indicates the employee's agreement with the job description. An example of the legality of the results of attestation in the event of a mismatch in the names of positions during the appointment and indication of the position in the instructions is the Appeal ruling of the Omsk Regional Court dated 06/19/2013 in case No. 33-3638 / 2013.
Can the academic degree and length of service be an indisputable confirmation of the employee's compliance with the position held?
The level of education and length of service are not an indisputable confirmation of the employee's suitability for the position held. Consider the Appellate ruling of the Chelyabinsk Regional Court dated December 16, 2014 in case No. 11-13367/2014.
A candidate of medical sciences who had worked in a scientific institution for more than 30 years was fired based on the results of the certification. It was found that this employee did not meet the qualification requirements prescribed in the job description: she did not conduct scientific activities during the reporting period, did not prepare reviews for abstracts and dissertations, did not participate in the preparation of work programs, the development of research methods and work with students, assigned by the head of the task did not perform, was not published, did not know how to work on the existing equipment, did not own a computer. Her work activity was reduced to writing out directions for testing, and this work is technical, not scientific. The court ruled that the dismissal was justified.
Are there any features of certification of employees working in the branch?
When carrying out certification of employees working in a branch, special attention should be paid to local regulations according to which it is carried out. If these acts are signed by the head of the branch, then the branch must have the necessary powers to develop, adopt and approve local regulations (LNA) containing labor law norms. Otherwise, the certification results are invalidated.
Consider the Appellate ruling of the Court of the Chukotka Autonomous Region dated October 27, 2014 in case No. 33-173/14, 2-25/14. An employee, a meteorological technician of the branch of Roshydromet, was dismissed due to inconsistency with her position due to insufficient qualifications, confirmed by the results of certification: she gave incorrect answers to 22 out of 36 questions, incomplete answers to 6 questions, and during the period of work she was twice involved in a disciplinary responsibility.
Local regulations for which certification is carried out must be signed by authorized persons.
The court of first instance, where the employee applied, found the dismissal lawful. Order and. O. Director of the branch approved and put into effect the regulation on the certification of employees of the branch (hereinafter referred to as the Regulation), which determined the procedure for attestation of employees of the branch holding positions requiring special knowledge or special training, the circle of employees not subject to certification, established the possibility of conducting extraordinary certification .
The procedure for conducting certification by the employer was observed: an order was issued to conduct certification, a schedule for its implementation was approved, with which the employee was informed in a timely manner, a certification commission was formed, documents necessary for the work of the commission were prepared, a meeting was held during which a review of the employee being certified was announced, his objections , interview. The form of attestation and the composition of the commission complied with the requirements of the approved regulation on attestation. The procedure for terminating the employment contract was also observed: there were no vacant positions that would correspond to the qualifications of the employee and could be offered to her.
However, the appeals committee found the dismissal illegal. The fact is that the head budgetary institution did not develop and did not adopt a regulation on the procedure for attesting its employees, and the branch did not have the authority to adopt the named provision, which is a LNA containing labor law norms. In accordance with Part 1 of Art. 8 of the Labor Code of the Russian Federation, employers accept LNA containing labor law norms only within their competence. It follows from the charter of the institution that management is carried out by the general director of the institution, who has the authority to act on behalf of the institution without a power of attorney. The director of a branch of an institution is empowered and acts on the basis of a power of attorney issued to him by the general director.
The employer has the right to delegate the right to accept LNA containing labor law norms on its own behalf to other persons with the transfer of appropriate powers to them. According to the regulation on the branch, it is not a legal entity of the institution. He had the right to conduct certification of employees, but did not have the authority to develop, adopt and approve LNA containing labor law norms, in particular the Regulations. Normative-methodical, informational and legal support of the activities of the branch was carried out by the institution. Therefore, the results of the certification were canceled, and the dismissal was declared illegal.
Some features of the dismissal of an employee under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation
Are there categories of workers who cannot be dismissed under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation?
Termination of the employment contract under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation refers to the initiative of the employer. Therefore, according to Part 1, 4 Art. 261, Art. 264 of the Labor Code of the Russian Federation not subject to dismissal:
- pregnant women;
- a woman with a child under the age of three;
- single mothers or fathers raising a child under the age of 14 (a disabled child under the age of 18), or guardians, trustees of children of the specified age;
- a parent (guardian, trustee) who is the sole breadwinner of a child under the age of three, in a family with three or more children under the age of 14, or a disabled child under the age of 18, if the other parent (guardian, trustee) does not work.
Is it possible to dismiss an employee based on the results of an extraordinary certification?
Legal regulation of attestation issues is within the competence of employers. Art. 81, 82 of the Labor Code of the Russian Federation, regulating general issues of certification by the employer, do not prohibit extraordinary certification of employees, and the dismissal of employees based on its results is possible. Otherwise, it would limit the right of the employer to dismiss an employee with insufficient qualifications. However, the possibility of dismissal based on the results of extraordinary certification should be enshrined in relevant acts. An example of the legal dismissal of an employee based on the results of an extraordinary attestation is the Appellate ruling of the Court of the Chukotka Autonomous Region dated 10/27/2014 in case No. 33-173 / 14, 2-25 / 14.
If a disciplinary sanction is canceled, which became the reason for an extraordinary certification
For employees of certain categories, extraordinary attestations can be carried out upon detection of facts of non-performance or improper performance of official duties that entailed the application of disciplinary sanctions. Carrying out an extraordinary certification when an employee receives a disciplinary sanction may be included in the regulation on the certification of a particular institution. If the disciplinary sanction is recognized as unreasonable, then the results of the attestation, the reason for which was this sanction, are subject to cancellation. Consider, as an example, the Appellate Ruling of the Irkutsk Regional Court dated August 23, 2013 in case No. 33-6912/13.
If the disciplinary sanction is recognized as unreasonable, then the results of the attestation, the reason for which was this sanction, are subject to cancellation.
The employee was subject to disciplinary action. According to the regulation on attestation adopted in the institution, the disciplinary sanction became the reason for an extraordinary attestation. Based on the results of the certification, an order was issued to dismiss the employee as not corresponding to the position held. Subsequently, the order to impose a penalty was canceled. The court, where the employee applied, considered the dismissal unlawful, since the employer, after the abolition of the disciplinary sanction, had no basis for an extraordinary certification.
If the certified employee is not familiar with the job description?
The obligation of the employer to draw up and maintain job descriptions of the Labor Code of the Russian Federation is not provided for. Therefore, in a number of organizations there is no job description.
In the absence of a job description, the attestation commission is deprived of the opportunity to make an objective conclusion about the compliance of the employee with the position held. However, if there are other documents regulating the service rights and obligations of the certified person, dismissal under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation will be lawful even in the absence of a job description.
Consider, as an example, the Appellate Ruling of the Samara Regional Court dated December 25, 2014 in case No. 33-12913/2014. The director of the city circus, which is a branch of the Russian State Circus enterprise, was fired due to inconsistency with his position. In a court complaint, he pointed out the lack of a job description and asked in connection with this to recognize the results of the attestation as invalid. The Tribunal held that this argument was untenable.
By virtue of paragraph 2 of Art. 55 of the Civil Code of the Russian Federation, a branch is a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office (types of activity of a legal entity that it has the right to engage in in accordance with the law and its constituent documents). Since the legal capacity of a branch is derived from the legal capacity of a legal entity, its limits are determined by the legal entity itself in the regulation on the branch, on the basis of which it acts. According to paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, the head of a branch is appointed by a legal entity and acts on the basis of his power of attorney. Thus, the head of the branch acts in accordance with the regulations on the branch.
Regulations on the branch of the city circus were developed and approved. The document determined the subject and types of activities of the branch, its legal status and property, financial and economic activities, the management of the branch and the competence of the director, the procedure for maintaining accounting and reporting. In addition, an employment contract was concluded with the director of the branch, which regulated, among other things, the competence and rights of the head, his duties and responsibilities.
The court concluded that the director of the branch was his official rights and duties are known and the requirements for his position, and the attestation commission had the opportunity to give an objective assessment of the compliance of the level of knowledge, skills and professional skills, experience of the director with the level required for holding the position.
If there is an act of unsatisfactory performance, is certification necessary?
Dismissal of an employee under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation without certification is not provided. Consider the Appellate ruling of the Rostov Regional Court dated January 17, 2013 in case No. 33-381/2013.
The head of the logistics department went to court in connection with the dismissal under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation. The court considered the actions of the employer illegal, since the certification was based on two acts on the results of the work of employees, which, by their content, cannot reflect an assessment of the business and professional qualities of the head of the logistics department. These acts are the implementation of the system of remuneration in the organization (bonuses, fines). Violation of the dismissal procedure under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation became the reason for the recognition of the actions of the employer as illegal.
If there is no document confirming professional training
If the certification of the employee for non-compliance with the work performed was not carried out, then the grounds for dismissal under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation are absent. Consider, as an example, the Appellate Ruling of the Krasnodar Regional Court dated July 10, 2012 in case No. 33-13477/2012.
In connection with the reduction, the pumping station operator was transferred to locksmiths. When the employee did not agree with the order, he was fired under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation due to inconsistency with the position held. The reason was the lack of a document confirming professional training in the amount of knowledge necessary for the position. At the same time, the employee had no complaints from the management, was not brought to disciplinary responsibility, and did not cause damage to property.
The court, where the dismissed employee applied, considered the actions of the management illegal. In making decisions, the court was based on the fact that the employee was not attested for inconsistency with the work performed, which indicated a violation by the employer of the dismissal procedure. There were no grounds for dismissal.
If the employee does not know the internal labor regulations, labor protection and safety rules
If the employee's job description contains a requirement, in addition to knowing their immediate duties, also to know the laws and other regulations related to work, internal labor regulations, labor protection and safety rules, then such knowledge is essential. If the job description containing all the listed requirements is signed by the employee, and the certification shows a lack of knowledge on these issues, then this is a reason for dismissal due to insufficient qualifications. Example - Appellate ruling of the Astrakhan Regional Court dated November 19, 2014 in case No. 33-3810 / 2014.
In the next issue, we will consider the features of the certification procedure for employees of budgetary institutions.
For example, Art. 49 of the Federal Law of December 29, 2012 No. 273-FZ "On Education in the Russian Federation", art. 48 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”.
For example, clause 2.1 of the Regulations on the procedure and timing of the certification of candidates for the positions of heads and heads of municipal educational organizations, approved. Decree of the Administration of the city of Dzerzhinsk, Nizhny Novgorod Region dated October 23, 2013 No. 4274.
Conflict situation: the company's management decided to dismiss the employee based on the results of the certification, he does not agree. Example: an employee was fired for inconsistency with the work performed due to insufficient qualifications, confirmed by the results of certification. The protocol for checking the employee's knowledge became the basis for issuing the order. But the document did not contain the conclusions of the commission about the inconsistency of the employee with the position, so the employee claimed that the certification was not actually carried out and he was simply given an unsatisfactory grade. In addition, the employee justified the illegality of the dismissal by the fact that he was not offered another job. What does the law say about this? To assess the professional level of employees, the employer needs to conduct an attestation procedure.
Dismissal of employees based on the results of certification. legal aspects
How is the dismissal based on the results of the certification After the certification has taken place, all the materials and conclusions of the commission are sent to the employer, the head of the enterprise, authorized to make decisions on dismissal. The head considers the specified materials, after which he makes decisions on dismissal, or on leaving the employee in office. It is important that the manager complies with the deadlines established by the Regulations.
Attention
If the dismissal during certification occurred later, it can be challenged. The Regulation should clearly set out the deadlines for the manager to make decisions based on the results of the certification. So, if, nevertheless, the employee does not meet the criteria defined for this position, he can be fired only after he, in the prescribed manner, is offered another job at the same enterprise that corresponds to his level of qualification.
Certification of employees as a basis for dismissal
At the same time, it is necessary to notify the employee of the vacancies available for him in writing. The notification is drawn up in such a way that the employee understands that he does not correspond to his position, but he is offered a transition to certain vacancies. In the notice, you must indicate the column where the employee will sign that he is familiar with all the vacancies existing at the enterprise.
And one more column, where he indicates his consent, or disagreement, to the transfer to another position. That is, the dismissal of an employee based on the results of certification does not occur immediately, after a meeting of the commission. The commission in the minutes indicates its opinion, and the employer may decide to send the employee for advanced training, training, courses.
Or, make a decision that the employee can no longer work in this position, which he does not correspond to.
Dismissal of non-certified
It is necessary to determine the requirements for length of service and experience, professional skills and education for a specific position or profession clearly and uniformly, otherwise, during the certification procedure, which we will discuss below, questions may arise regarding the interpretation of certain provisions of the instruction. So, based on the definition of qualification given in Art. 195.1 of the Labor Code of the Russian Federation, it can be said that the discrepancy between the qualifications of an employee for occupying a particular position can be defined as the inability of an employee to qualitatively perform the work assigned to him by an employment contract. Documentary support of appraisal Let us repeat that commercial organizations independently decide whether to conduct appraisal, and if so, for which employees and how often.
However, for this procedure to be legal, the company needs to develop a number of documents.
International Faculty
That is, the legislator establishes that certification is mandatory for budgetary institutions. As for commercial companies, organizations, the legislator has not established an imperative norm for them to hold such an event. Therefore, if a company has decided to conduct certification, employees for whom a special procedure is provided are subject to it. For example, for teachers. When developing a local regulatory act on certification, it is necessary to take into account the requirements of legislative acts.
Dismissal based on the results of certification inconsistency with the position held The grounds for dismissal of employees of an enterprise or company are listed in the Labor Code of the Russian Federation. One of the grounds is the initiative of the employer (Article 81). This article contains a provision that allows you to dismiss an employee based on the results of staff appraisal.
Certification as a reason for dismissal
The main of these documents is a local normative act - the regulation on certification. In addition to it, you will need: - an order for certification; - certification schedule; - regulations on the work of the attestation commission and an order on the approval of its members; - minutes of commission meetings, certification sheets, etc. It is important to develop and approve the documents that are used during certification and on the basis of which it is carried out, since if a labor dispute arises following the results of certification, the competent authorities will first of all check local regulations and the procedure for their adoption and assertions.
Let's say a few words about the regulation on certification.
Employees who have not passed certification can be fired within three months
Certification is important for both sides of labor relations: it will help the employer to form a personnel reserve, fire workers who do not meet the requirements for the position, and the employee will have the opportunity to get a well-deserved promotion. In this article, we would like to give general recommendations on the certification of your employees, tell you what local regulations in the field of labor law are necessary for certification. First of all, attestation is a periodic check of the professional level of an employee to establish whether his qualifications correspond to the position held or the work performed.
As a rule, certification of employees should be carried out at least once every three to five years. Extraordinary certification can be carried out in case of planning to reduce the number or staff of the organization, inefficient work of the department, etc.
Dismissal based on the results of certification
Info
A civil servant has the right to appeal the results of certification. Dismissal based on the results of certification of municipal employees Certification of a municipal employee is carried out in accordance with the tasks of determining its compliance with the position held in the municipal service. Certification activities with this category of employees are carried out once every 3 years.
As a result of the above event, the attestation commission must decide whether the employee corresponds to the position held. The powers of the commission also include the issuance of recommendations related to the promotion of individual municipal employees. Encouragement comes for high results in work, success, including the promotion of employees.
If there is a need for that, the attestation commission recommends improving the work of certified employees.
Important
In another locality, an employee can also be offered vacancies, but only if this is provided for by the employment contract. A letter from Rostrud dated 2008 under No. 1028 states that, on the grounds under consideration, a person can only be fired after certification has been carried out. The term "certification" in the Labor Code of the Russian Federation is absent. Nevertheless, attestation is understood as an event that is a test of the moral, personal and business qualities of a person. In addition, the employee is checked for compliance with his working qualities of the position.
Dismissal based on the results of the certification is not allowed. Certification in relation to some employees does not make sense. This is due to the fact that, based on the results of this event, they cannot be fired at the initiative of the employer. Therefore, this process loses its meaning for them.
Terms of dismissal of employees who have not passed certification
- employees who are in a state of disability (temporary).
At the initiative of the employer, employees can be fired if they have not coped with the certification, but in compliance with the procedures defined for this case:
- union members;
- representatives of employees during negotiations (collective);
- minors;
- personnel representatives who participate in the resolution of a labor dispute;
- workers who take part in the strike;
- employees who take part in a labor dispute;
- employees elected as members of the commission on labor disputes;
- heads of collegiate bodies of primary trade union organizations (elected) and their deputies.
How to avoid dismissal based on the results of certification Based on the results of the certification of an employee of an enterprise, the employer draws up a review.
Dismissal of employees who have not passed certification
To conduct certification, the employer must approve a local regulatory act that regulates the procedure for conducting and applied certification procedures - the regulation on certification. Since, at present, there is no single regulatory act that would define the general rules for attestation in commercial organizations, when preparing a regulation on attestation in a commercial organization, the Regulation on the procedure for attestation of civil servants and other regulations relating to the conduct of attestation of certain categories can be taken as a basis workers. Additional documents that need to be based on during the certification are the internal labor regulations of the organization, regulations on the structural divisions of the organization, employment contracts, job descriptions of employees.
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 successful 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 between their position (or work performed) is revealed, they cannot be dismissed under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation (Article 261 of the Labor Code of the Russian Federation). Therefore, we consider it 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.
Before 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 the performance of their 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.
According to the old rules, a teacher who wanted to earn more could, at his own request, 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 on maternity leave and 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 undergo written tests on issues related to their professional activities or computer testing, which allows determining the level of knowledge of modern teaching and upbringing methods.
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 paragraph 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 of 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 based on improving the methods of education and upbringing, innovation, 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 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 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". An appeal can be filed either with the labor dispute commission at the regional education authority or with 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.
L.A. Elina,
leading expert
Dismissal of employees based on the results of certification
Develop and approve the regulation on certification
As a basis, you can take the old Soviet Regulations on the procedure for conducting certification And articles 8, 81 of the Labor Code of the Russian Federation; Regulation, approved. Decree of the State Committee for Science and Technology of the USSR No. 470, Goskomtrud of the USSR No. 267 dated 05.10.73 (hereinafter referred to as the Soviet Regulation). Moreover, it is better not to prescribe rules in your local attestation regulation that will worsen the conditions for your employees compared to the Soviet Regulations.
At the same time, there are regulations governing the certification of certain categories of workers. For example, when attesting scientific and pedagogical workers in universities, one must adhere to the Regulations on the procedure for conducting attestation, 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-wide attestation regulation, you must consider its rules.
Attention
Employees of the company must be familiarized with the regulations on certification against signature. And Art. 22 Labor Code of the Russian Federation.
Fix in your position how the attestation commission will be formed. Write down the terms and form of certification, as well as what exactly it will consist of. Approve evaluation criteria for different categories of workers. Based on the established criteria, test forms, questionnaires and / or lists of questions for specific categories of workers can be developed.
If the company has a trade union, do not forget to take into account its opinion when approving the regulation on certification And Art. 8, part 2, art. 81, art. 372 of the Labor Code of the Russian Federation; pp. 24,.
The regulation on certification must be approved by order of the head.
Form an attestation commission
The attestation commission, as a rule, includes the chairman, members of the commission (including the deputy chairman) and the secretary. The commission may include experts from among highly qualified employees, as well as heads of relevant departments. Your position may include the possibility of participation in the panel of independent experts who are not employees of your organization.
Reference
When forming qualification requirements, one can focus on the norms of the professional standard, the Unified Qualification Guide or the Unified Tariff and Qualification Guide.
Be sure to include in the attestation commission a representative of the elected body of the trade union organization (if it There is) Art. 82 of the Labor Code of the Russian Federation.
Approve the nominal composition of the certification commission by order of the head of the certification And clause 5 of the Soviet Regulations; Art. 82 of the Labor Code of the Russian Federation.
Prepare for certification
Inform employees about the upcoming certification within the time period established by your regulation on certification.
Not later than 2 weeks before the certification for each employee being certified, the immediate supervisor must submit a written review to the members of the commission (characteristics y) clause 6 of the Soviet Regulations. The review reflects the assessment of the employee's activities, his qualifications, and also indicates how he observes labor discipline.
Not later than a week before the certification, familiarize the employee with the review submitted to him m clause 6 of the Soviet Regulations.
Conduct an attestation
As a rule, the certified employee answers the questions of the test or speaks orally with the members of the commission - this depends on the characteristics 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 the age of 1 year;
employees who have worked in their position for less than 1 year.
And according to the negative results of attestation, it is impossible to dismiss a whole group of people. Including women with children under the age of 3 and single mothers raising a child under the age of 14 (a disabled child under the age of 18 years) Art. 261 of the Labor Code of the Russian Federation.
The assessment of an employee should be based on his compliance with the qualification requirements for the position held, set out in his job description and / or employment contract. At the same time, take into account the professional knowledge of the employee, work experience, advanced training, retraining and other data.
Please note that:
during the attestation, the secretary of the attestation commission must keep the minutes of its meeting in free form;
voting results must be determined by majority vote. In case of equality of votes in the assessment of the performance of the certified employee, he must be recognized as having successfully passed the certification and corresponding to the position held;
Voting results must be recorded in the protocol l clause 8 of the Soviet Regulations;
these results must be announced to the certified employee 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 in the certification sheet clause 9 of the Soviet Regulations. Such a sheet must be drawn up in two copies:
One copy of it, along with a response to the employee, must be kept in his personal file;
The second must be given to the employee, preferably against signature;
the results of the attestation of employees must be entered in section IV of the personal card in the form No. T-2;
the attestation sheets filled out by the commission for employees must be transferred to the head of the company.
Attention
It is impossible to dismiss an employee based on the results of certification during the period of his temporary disability or being on vacation. I Art. 81 of the Labor Code of the Russian Federation.
Keep in mind that an employee can challenge the legality of his dismissal based on the results of the appraisal if, for example, the procedure for conducting such an appraisal has been violated. Thus, one employee managed to be reinstated by a court decision, since the questions indicated in the certification 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 restored, since the certification consisted only in the announcement of the review submitted in relation to her by her immediate supervisor m Appeal ruling of the court of the YaNAO dated 05.06.2014 No. 33-1144/2014.
Make a management decision based on the results of certification
All personnel decisions regarding an employee (for example, on dismissal) can only be made within 2 months from the date of certification And clause 12 of the Soviet Regulations. If the manager decided to leave him in his previous position, then nothing needs to be done.
If the manager wants to dismiss the employee from his position, you must strictly follow all the procedures preceding such a dismissal.
Reference
If an employee is a member of a trade union, then before dismissing him, the opinion of this trade union (the elected body of the primary trade union organization) must be taken into account. And) articles 82, 373 of the Labor Code of the Russian Federation; pp. 24, 31 Decrees of the Plenum of the Supreme Court of March 17, 2004 No. 2.
If the employee is the head or deputy head of the elected collegial body of the trade union organization, then the employer must request the prior consent of the higher elected trade union body A Art. 374 of the Labor Code of the Russian Federation.
But even if the union is against it, it is still possible to fire the employee. O articles 373, 374 of the Labor Code of the Russian Federation. It will only make the dismissal process a little more complicated. We will have to conduct additional consultations with the trade union, 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 absenteeism. This order can be challenged in court.
Also, the employee himself or the trade union can apply directly to the court on the legality of the dismissal of the employee. h articles 373, 374 of the Labor Code of the Russian Federation.
An employee who is recognized as not corresponding to the position held must be offered vacant positions (work in the same locality), both corresponding to his qualifications, and lower or lower paid. Higher positions - only if it is provided for by the collective and / or labor contract and agreements And Part 3 Art. 81 of the Labor Code of the Russian Federation.
The offer of vacancies must be made in writing. The employee's response is also required in writing. If the employee agrees, then issue the translation as an additional agreement to the employment contract at Art. 72 Labor Code of the Russian Federation.
If there are no suitable vacancies in the company or the employee has refused the vacancies you offered, issue an order to terminate the employment contract. For this you can use the form No. T-8 p. 3 h. 1 art. 81 of the Labor Code of the Russian Federation.
In the work book, the dismissal record looks like this.
As a general rule, a dismissed employee is not required to pay severance pay. But its payment may be provided for in the collective agreement of the company, a local regulation or an employment contract with a dismissed employee.
