Is it possible to fire a person who has not passed the certification. If the teacher did not pass the certification, then whether this follows a dismissal. Appealing the decision of the attestation commission

In the context of a general reduction of staff, personnel certification has become in Russia one of the ways to "squeeze out" unnecessary workers. However, you should not be afraid of it: legislation and judicial practice are on the side of the employee

On the forums on the Internet, you can find a lot of employee reviews about the sudden "certification" and subsequent dismissal "due to the inadequacy of the position held." Here are just a few examples.

“Due to the financial crisis, our employer is forming an attestation commission for attestation with further dismissal under the article. The employer proposes either to resign of his own free will, or he will dismiss in connection with certification. The management does not want to hear about staff cuts. What to do in this situation? How to protect yourself during certification? Where to go? "

“When I came to work, I was suddenly called into the office of the chief engineer, saying that I was being certified, in view of the fact that one position was being cut in accordance with the issued directive. I was not informed about the attestation at all, and I was not familiarized with any documents about its conduct. "

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

At the same time, the certification procedure must be stipulated by the local acts of each company - the provisions on certification, which must be agreed with the representative body of employees, and in the absence of such a body - with the general meeting of employees. If the organization has decided to draw up a regulation on certification, all employees must be familiarized with it against signature.

Of course, the provision on certification cannot contradict labor legislation. “There are certain socially protected segments of the population who do not under any circumstances fall under such a check,” explains Alexander Konovalov, a lawyer at Pepeliaev, Goltsblat and Partners, noting that, for example, dismissal based on the results of the certification of employees may be considered illegal who have worked in their position for less than one year, and pregnant women. This also applies to women who have children under the age of three and are on parental leave.

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

In general, recruiting managers assure that certification is a necessary part of the personnel management system. The professional level of employees is growing unevenly; individual specialists may lag behind the needs of the company. Attestation should reveal these facts, and the HR department should develop an action plan to solve the problem - advanced training, certain trainings, etc.

Not everyone knows that even failure to pass certification is not a direct reason for dismissal. According to article 76 of the Labor Code of the Russian Federation, the employer only has the right to suspend you from work before retaking the exam. However, the employer often acts more subtly: those who have received an unsatisfactory mark at certification are offered to leave “of their own accord. Or they simply scare her, not at all intending to arrange her in reality.

“In conditions when the supply on the labor market has grown, a weak specialist can be replaced with a stronger one, the relevance of such decisions is increasing,” Maria Muzaleva, HR Manager of the Finam company, admitted in an interview. - However, I do not know that any companies abuse this. Mass layoffs, albeit formally related to certification, are negative for the company's image, undermine its corporate culture, and demoralize employees. "

Indeed, mass appraisal of employees in order to significantly reduce staff is a rather troublesome procedure for any company. “For organizations, appraisal is not the best way to quickly get rid of the extra staff. Rather, leaders in this case are acting emotionally, not logically. It is much wiser to talk to the labor collective, explain the situation, and perhaps even "tighten their belts" together, - reflects Maxim Chernigovskiy, director of the analytical department of the Vegas Lex legal company.

Moreover, the risk of litigation in the event of multiple dismissals following certification is very high. “Indeed, in the event that an employee does not agree with the results of certification, he can apply to the labor dispute committee of the company, to the labor inspectorate or to the court. Practice shows that up to 90% of litigations on this issue end with the employee's victory. Then the employer has to pay not only compensation to the employee, but also his legal costs, ”explains Maxim Chernigovsky.

An employee who does not agree with dismissal based on the results of certification has a month (from the date of receipt of the work book (Article 392 of the Labor Code of the Russian Federation)) to go to court with a claim for reinstatement at work. “Of course, employees can challenge the dismissal based on the certification results. In principle, this is correct, - says Maria Muzaleva. - Only for employees it is more correct to focus on obtaining compensation provided for by law, and not on reinstatement at their previous job. Believe me, the employer, if desired, can always find an additional reason to fire an employee. " In the case of a positive decision of the court, in addition to the salary that the employee was supposed to receive for the time he did not work, compensation is paid, calculated based on 1/300 of the Central Bank's refinancing rate for each day of delay.

L.A. Elina,
leading expert

When an employee does not cope with his duties and the management fails to agree with him on dismissal by agreement of the parties, some organizations carry out certification. But if it is carried out with procedural violations, its results can be challenged. Then the dismissed employee will be able to recover at work and collect from the company the average earnings during the forced absence and compensation for moral damage.

Dismissal of employees based on the results of certification

Develop and approve an attestation regulation

As a basis, you can take the old Soviet Regulation on the procedure for conducting certification and articles 8, 81 of the Labor Code of the Russian Federation; Position approved. Resolution of the State Committee for Science and Technology of the USSR No. 470, Goskomtruda of the USSR No. 267 dated 05.10.73 (hereinafter - the Soviet Regulation). Moreover, it is better not to prescribe in your local regulation on certification rules that will worsen the conditions for your employees in comparison with the Soviet Regulation.

At the same time, there are regulations governing the conduct of certification in relation to certain categories of workers. For example, when certifying scientific and pedagogical workers in universities, it is necessary to adhere to the Regulation on the procedure for conducting certification, approved by the Ministry of Education and Order of the Ministry of Education and Science of March 30, 2015 No. 293. If your organization is subject to any industry certification clause, you must follow the rules.

Attention

Employees of the company must be sure to familiarize themselves with the certification regulations. and art. 22 of the 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 be. Establish assessment criteria for different categories of workers. Based on the established criteria, forms of tests, questionnaires and / or lists of questions for specific categories of workers can be developed.

If the company has a union, do not forget to take its opinion into account when approving the certification regulation and art. 8, part 2 of Art. 81, art. 372 of the Labor Code of the Russian Federation; nn. 24,.

The regulation on certification must be approved by the order of the head.

Form an attestation commission

The attestation commission, as a rule, includes a chairman, members of the commission (including a deputy chairman) and a secretary. The commission may include experts from among highly qualified employees, as well as heads of relevant departments. Your position may include the ability to serve on a panel of independent experts who are not employees of your organization.

reference

When forming qualification requirements, you can focus on the norms of the professional standard, the Unified Qualification Reference Book, or the Unified Tariff and Qualification Reference Book.

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 the employees about the upcoming certification within the timeframe established by your regulation on certification.

Not later than 2 weeks before certification, for each certified employee, the direct supervisor must submit a written response to the commission members (characteristics y) clause 6 of the Soviet Regulations. The review reflects the assessment of the employee's performance, his qualifications, and also indicates how much he observes labor discipline.

No later than a week before certification, familiarize the employee with the feedback presented to him m clause 6 of the Soviet Regulations.

Carry out certification

As a rule, the certified employee answers the test questions or speaks orally with the 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 old;

employees who have worked in their position for less than 1 year.

And on the basis of negative results of certification 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 (disabled child under the age of 18 years) art. 261 of the Labor Code of the Russian Federation.

An employee's assessment should be based on his compliance with the qualification requirements for the position, set out in his job description and / or employment contract. In doing so, take into account the employee's professional knowledge, work experience, professional development, retraining and other data.

Please note that:

during certification, the secretary of the certification commission must keep a free form of the minutes of its meeting;

voting results must be determined by a majority vote. In case of equality of votes in assessing the performance of the certified employee, he must be recognized as having successfully passed the certification and corresponding to the position held;

the voting results must be entered 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, together 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 certification of employees must be entered in section IV of the personal card in the form No. T-2;

the employee certification sheets filled out by the commission must be handed over to the head of the company.

Attention

Dismissing an employee based on the results of certification during the period of his temporary incapacity for work or being on vacation cannot 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 certification, if, for example, the procedure for conducting such certification has been violated. So, one employee managed to recover by a court decision, since the questions specified 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 determination of the Krasnoyarsk Territory Court dated 12.24.2014 No. 33-12241. And the other worker recovered, since the certification consisted only in the announcement of the response presented in relation to her by her immediate supervisor m Appeal ruling of the Yamalo-Nenets Autonomous Okrug dated 05.06.2014 No. 33-1144 / 2014.

Make a decision of the management based on the results of certification

All personnel decisions in relation to an employee (for example, on dismissal) can be made only 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 an employee from his position, all procedures prior to such dismissal must be strictly followed.

reference

If the employee is a member of a trade union, then before firing him, 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; nn. 24, 31 Resolutions of the Plenum of the Armed Forces of 17.03.2004 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 and art. 374 of the Labor Code of the Russian Federation.

But even if the union is against, it is still possible to fire the employee. about articles 373, 374 of the Labor Code of the Russian Federation. The dismissal procedure will only be somewhat complicated. We will have to hold 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 she finds it illegal, the organization will receive an order to reinstate the employee at work with the payment of 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 an employee. s 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 area), 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 h. 3 tbsp. 81 of the Labor Code of the Russian Federation.

Be sure to submit your offer of vacancies in writing. Also ask for the employee's answer in writing. If the employee agrees, then draw up the transfer with an additional agreement to the employment contract at art. 72 of the Labor Code of the Russian Federation.

If the company does not have suitable vacancies, or the employee refused the vacancies offered by you, issue an order to terminate the employment contract. To do 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, it is not required to pay the dismissed severance pay. But its payment can be provided for in the collective agreement of the company, local regulation or employment contract with the dismissed employee.

What is the use of certification of social workers? What are the features of certification of medical workers for a category? What governs the position on certification for compliance with the position held?

Arriving at work, you will find out that there have been personnel changes in the team! Chief economist Maria Ivanovna was getting ready to retire urgently. Senior accountant Natalya glows with happiness - she is now the deputy chief accountant. But the leading economist Lyudochka is in tears - from now on she is just an economist.

This is due to the certification of employees, which no one attached much importance to two weeks ago. As you can see, in vain!

In order not to get into a mess and be fully armed, to know all the pros and cons of this procedure, I, Alla Prosyukova, have prepared a new article for you on the topic of personnel certification!

As always, at the end of the publication - useful tips and an overview of reliable companies offering personnel certification services!

1. What is employee certification and why is it carried out?

Every year, heads of enterprises and business owners pay more and more attention to the company's personnel. Popular expression "Cadres are everything!" finally began to acquire practical significance.

To remain competitive, companies must have a highly skilled workforce that matches its scale.

How to determine this level correctly? It's very simple - to carry out certification!

This is a periodic examination of personnel for professional suitability and suitability for the position held.

The objectives of this event are different. We have presented some of them in our diagram.

Legislatively, the frequency of certification activities is provided for at least once every 3 years. Based on this, each company independently approves the terms acceptable for it. They are fixed in a local act that regulates this process, developed and approved within the company.

You should know which categories of workers are not certified:

working in the organization for less than a year;
employees over 60 years old;
female employees expecting a child;
maternity leave workers;
women who have taken parental leave for a child under 3 years old.

Now certification has become popular in the field of social work. Certification of the professionalism of social workers allows the formation of a staff of highly qualified specialists, which has a positive effect on the quality of their services.

It is also important to remember about the peculiarities of certification of certain types of employees. For example, certification of health workers by category. These employees have the right to independently initiate the category assignment exam. The voluntariness of the test is its distinctive feature.

Examinations of this kind are conducted by an expert group of a specially formed commission.

2. What are the forms of certification of workers - 3 forms of

The method of certification is also selected depending on the goals. The most famous are 3 forms of this procedure. In practice, there are much more of them, because mixing often occurs and the result is a combined format.

As part of this publication, I propose to consider only the main ones: two oral (individual and collegial interviews) and written testing.

Form 1. Oral in the form of an individual interview

An individual interview is usually conducted by the head of the department in which the employee works. The results serve as the basis for compiling a testimonial-characteristic.

In the process, the attitude of the certified person to the work is clarified. The problems arising for an employee in the performance of work duties are determined.

Form 2. Oral in the form of a peer interview

The collegial interview is conducted by a commission approved for this purpose. First, listen to the report of the subject himself about his duties within the position, positive and negative aspects of the work. If necessary, clarifying questions are asked.

In the course of the conversation, the level of professional training of a specialist and his compliance with the position are determined.

Form 3. Written in the form of tests

The most objective form is testing. Proficiency testing requires a lot of preparation.

First, it is necessary to form and approve test questions. They must fully correspond to the specialty and qualifications of the certified employees.

Secondly, the% of correct answers should be determined in advance to determine the successful completion of the test.

3. How the certification of employees is carried out - 5 main stages

Such a serious and important procedure as the certification of workers requires thorough preparation.

In order for the results of this event to have value and practical significance, it is necessary to know some of its organizational subtleties and features of the event.

Stage 1. Drawing up a local regulatory act

The main document governing the certification procedure is the “Regulations on the certification of employees”.

Its approximate structure is shown in the table.

The approximate structure and composition of sections:

№	Section	Summary
1	Concept, goals, objectives	specifies specific goals and objectives specifically for the company that approved the Regulation (for example, the formation of a personnel reserve)
2	List of categories of personnel not subject to certification	legally established categories of employees that are not certified (pregnant women, working less than a year, etc.)
3	Dates	planned, unscheduled, frequency and duration
4	Forms of certification	individual or collegial interview, testing
5	Composition and powers of the commission	the composition of the commission with the functions assigned to them is indicated
6	Certification procedure	the most complete description of all stages of the process, a list of submitted documentation, a list of persons responsible for the preparation of documents
7	Criteria for evaluation	the number of points for successfully passing the test, the compliance of the employee's work with his service instructions, etc.
8	Types of final conclusions	corresponds / does not correspond to the position held, corresponds to the position held and is recommended for admission to the personnel reserve

The local act is approved by the head of the company. After that, all personnel are introduced to him under signature. Subsequently, the newly employed become familiar with the situation in a similar way.

Stage 2. Formation of the certification commission

The commission is approved by the order of the organization.

The composition includes:

chairman;
vice-chairman;
secretary;
members of the commission.

The number of members is not limited by law. Minimum - 3 people. Elected from among the most professional workers, heads of departments, chief specialists.

If there is a trade union in the firm, then its representative must be included in the commission. Otherwise, the attestation results may be invalidated.

Stage 3. Preparation of the necessary documents for the certification commission

The order of the head on the certification has been issued. The schedule for its implementation has been developed and approved. The time comes to prepare documentation for the commission.

List of standard documents:

an assessment form for working and business qualities;
reports of the attested;
qualification sheets;
the form of the commission's conclusion;
form for accounting for employee proposals.

Stage 4. Conducting certification

Certification is carried out by the commission strictly according to the approved schedule. In the course of the meeting, the submitted documents for each certified person are considered, the employees themselves, their immediate supervisors are heard.

Stage 5. Obtaining the results of certification

Based on the results of the certification, the commission issues a verdict for each person being certified. The wording of the decision is prescribed in the local act and usually has the form: “corresponds to the position held” and “does not correspond to the position held”.

The attestation conclusion is drawn up in the form. The results are formed into a consolidated report, which is then presented to the manager for making a final decision.

4. Who provides services for the certification of employees - an overview of TOP-3 companies

The personnel appraisal procedure is causing you difficulties and you do not know where to start? I suggest contacting professionals.

We have selected companies that will quickly and efficiently carry out certification of employees in any field, including such as: education, medicine, government and social services.

HR-praktika is a St. Petersburg company that has been operating for over 20 years throughout the Russian Federation in the field of personnel management. During this period, the company has become an expert in the field of its professional interests.

The company provides services in the field of personnel management in the following areas:

audit;
outsourcing;
training;
consultations;
design work.

Business leaders and owners, job seekers and employees of companies, HR specialists - everyone will find useful information on the corporate Internet resource of the company "HR-praktika". You can get an initial consultation by phone or by leaving a request on the website.

"Hermes" is a licensing center from Moscow, established in 2006. The company has all the necessary certificates and licenses to carry out the declared activities.

Services of Hermes LLC:

quality management certification;
licensing;
sRO tolerances;
training and retraining courses of various kinds;
certification: personnel,;
sale of ready-made companies licensed by the Ministry of Emergency Situations and KGIOP.

Having started its activity back in 2006 as a division of the holding, the company "There are personnel!" became a separate business unit with a wide network of specialized agencies.

Recruiting and consulting services are the main directions of the firm's activity. The most demanded among clients are personnel certification and.

The results of the events carried out by highly qualified specialists of the agency "There are personnel!" allow customers:

identify the reasons for the ineffective work of staff;
to determine the directions of optimization of personnel and organizational work;
develop activities that increase motivation and productivity;
review job responsibilities and salaries;
to redistribute the workload among specialists.

5. How to get objective results of employee certification - 3 useful tips

Objectivity is an important component of personnel certification.

Our advice will help to avoid problems in this matter.

As I already wrote, the number of participants in the certification commission is not limited. Include as many specialists as you need for a quality procedure.

The main condition: all members of the commission must enjoy authority, be competent in the professional specializations of those being certified. Such a composition will generate more credibility and reduce the risk of conflicts.

Example
During the certification process at Albatross LLC, a conflict arose when assessing the professional competencies of the system administrator Fyodor Kuzkin.
The commission decided to downgrade Kuzkin's category. Fedor wrote a complaint to the director of the company, in which he drew attention to the incompetence of the commission members in matters of system administration.
Indeed, the commission did not have a single specialist in this area, and, therefore, they could not properly assess the professional qualities of the system administrator Fedor.
The director of Albatross LLC agreed with Kuzkin's arguments and the recommendations of the attestation commission were not accepted.
Tip 2. Conduct certification only in the presence of an employee
Despite the fact that the law provides for cases of attestation in the absence of an employee (unreasonable absence, unwillingness to undergo an examination), it is better to carry it out in his presence.
This will reduce the risk of conflict and disputing the outcome on the part of the evaluated employee.
Tip 3. Trust third-party companies to carry out the certification
If you want to get really high-quality results of certification and get rid of the headache about this, I recommend ordering this event in specialized companies.
Such companies can be entrusted not only with personnel certification, but also, for example, a special assessment of working conditions (

Failure to pass certification is the basis for dismissal at the initiative of the employer. Here it is important to comply with legal requirements and know the step-by-step instructions, otherwise the termination of the employment contract may be recognized as illegal in court.

What is certification?

Certification of workers is a set of measures aimed at determining professional knowledge, qualities and skills. In 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 frame.

What are the goals of certification:

Assessment of competence and skills.
Determination of the level of professional training.
Determining the correspondence of the position to the level of training.
Potential analysis.

According to the law, certification must be carried out at least once every 3 years, but annual exams may be established at enterprises, which is not a violation if the terms are reflected in local regulations.

“To improve the level of knowledge, certification should be introduced in all areas, especially tourism. In a number of regions for the development of tourism, all guides take exams, but they are voluntary. It is necessary to issue a law on compulsory examination control, this will improve the quality and competitiveness of tourism products, ”says E.P. Stenyakina, Chairman of the Committee on Youth Policy, Physical Culture and Sports, ZSRO.

The following forms of certification are considered the most common:

View	Description
Interview with the manager	The employer himself conducts the conversation and determines the level of qualification of the employee by asking questions on professional topics
Collegial interview	It is carried out in the presence of the commission. The subject provides a report on his work, its positive and negative sides, answers questions
Written exam or testing	Employees are issued tickets with questions or tests. Based on the results, the correct number of answers is determined and a grade is given

How is certification carried out?

Professional certification is carried out in several stages:

The employer draws up an internal normative act - the Regulation on the certification of employees. It specifies the goals, objectives, timing, composition of the commission, evaluation criteria. In the future, each employee gets acquainted with the document against signature.
An attestation commission is being formed. This usually includes a secretary, a chairman and his deputy, a union representative (if he works in the company) and at least three examiners. The composition of the commission is approved by the order of the head.
Preparation of documents for the commission: forms for assessing working and business qualities, reports, conclusions.
Conducting certification.
Summing up the results of certification. The conclusion states “corresponds to the position held”, or vice versa - “does not correspond”. A summary report is drawn up and sent to the director of the organization.

How to fire an employee based on the results of certification: step by step instructions

In order for the dismissal to be legal, the employer must follow several rules:

The 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 paragraph 3 of Art. 81 of the Labor Code of the Russian Federation. He must offer the employee another position that matches his qualifications and experience.	Rostrud letter dated 30.04.2008 No. 1028
Dismissal of a pregnant woman is not allowed, except for the termination of the enterprise. It is also impossible to fire an employee raising a child under three years old, a minor under 14 years old or a disabled minor.	art. 261 of the 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 of the Labor Code of the Russian Federation

The step-by-step algorithm for dismissal based on the certification results is as follows:

The manager receives the opinion of the commission, gets acquainted with the certification materials and decides to dismiss the employee. The deadline for making a decision should be set in the Attestation Regulations. You cannot terminate the employment agreement later than the established date, otherwise the employee will be able to challenge the employer's actions.
The director offers the employee who did not pass the test vacancies corresponding to his qualifications. This is done by drawing up a written notice, on which the employee must put his signature and a note of consent or disagreement to move to a specific place.
If the subordinate agrees to leave for another position, the transfer procedure is carried out. If he refuses all offers, the employer draws up an act of this and initiates the termination of the employment contract by issuing a dismissal order, with which he introduces the dismissed against signature.
If the employee refuses to sign the order, an appropriate act is drawn up about this in the presence of two witnesses. Refusal to confirm familiarization with the document is not a basis for canceling the dismissal.
On the last day of work, the employee's work book is filled in. He is given all the documents in his hands, a full calculation of the salary and unused leave is made.

Important! The employer can, at its discretion, not fire an employee who has not passed certification, but send him to training or refresher courses if he considers that he has potential. A direct obligation to terminate employment contracts in case of unsatisfactory mark on the exam is not assigned to managers, 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 pass certification is not a reason for dismissal, in contrast to unsuccessful passing of the exam. In most cases, the courts side with workers and oblige managers to reinstate them in their previous positions.

Employers, if subordinates refuse to attest, may impose a disciplinary sanction on them under Art. 192 of the Labor Code of the Russian Federation:

What payments are due to those dismissed for unsatisfactory certification results?

The only obligation that the company has to such workers is the transfer of wages for the period of time worked. If the dismissed person did not take the due leave, he is entitled to compensation. Additional payments upon dismissal on such grounds are not provided.

Conflict situation: the company's management decided to dismiss the employee based on the certification results, he disagrees.

Example: an employee was fired for non-compliance with the work performed due to insufficient qualifications, confirmed by the results of certification. The basis for the issuance of the order was the protocol for checking the employee's knowledge. But the document did not cite the conclusions of the commission about the employee's inconsistency with the position, so the employee argued 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 carry out the certification procedure. On the basis of positive results, you can raise an employee in position, revise his grade, establish a stimulating bonus. But often the employer, based on unsatisfactory results of certification, can make other decisions: to demote, remove, change the grade, or even dismiss an employee under paragraph 3 of part one of Article 81 of the Labor Code.

But the employer needs to understand that this is one of the most difficult reasons for dismissal.

According to the established practice of court decisions, lawyers remind us that, before dismissing an employee based on the certification results, you must definitely offer him another job.

The procedure for attestation 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 employees (part two of article 81 of the Labor Code of the Russian Federation). You can fire an employee based on the results of certification, if you can't translate it with written consent for other existing work in the organization (including the underpaid) and in the event that if there are no vacancies or places in the company (part three of article 81 of the Labor Code of the Russian Federation).

At the same time, the employer is obliged to offer the employee in writing all suitable vacancies in a given area, as well as work in other areas, but only if this is provided for by a collective agreement, agreements, or an employment contract with the employee.

To win the case, the employer must prove that:

- the organization has a valid local regulatory act, developed taking into account the opinion of the representative body of employees, according to which the employee:

- was familiarized with both the local act and the notification (or schedule) of the certification against signature;

- the assessment of the employee was carried out by an expert commission, which can assess the professional level for this position;

- the professional level of the employee was assessed objectively (it is necessary to justify the assessment methodology: presentation of the immediate supervisor, the results of previous work, interviews, tests, tasks, tasks, the results of previous attestations);

- the employee has passed certification with an unsatisfactory result, which does not allow him to professionally continue to perform his duties in the existing position. The expert commission came to this decision, which is reflected in the documents on passing the certification;

- the employee was offered all possible vacancies that he could take, taking into account his qualifications (or he was notified that there are no vacancies in the organization).

The following documents may be requested in court:

- the employee's employment contract;

- internal labor regulations;

- regulations on certification of employees;

- certification sheet;

- orders to issue disciplinary sanctions to an employee;

- order to create a commission;

- job description of the employee;

- notification of the employee about vacancies;

- written refusal of the employee from vacancies;

- a letter from the employer about the absence of vacancies (in their absence);

- order to terminate the employment contract.

To defend their position, an employee can prove that:

- in fact, certification was not carried out (he was not familiar with its implementation);

- he was not personally present during the certification;

- the protocol was not signed by him, therefore, he could not put forward arguments in self-defense;

- in the attestation protocol itself, the commission did not come to a conclusion about his inadequacy for the position held, the employer decided this independently;

- not all vacancies existing in the organization were offered;

- vacancies were offered, but it was impossible to assess whether they were suitable for him or not, since the employer did not familiarize himself with the functionality and working conditions;

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