The employee has not passed the certification of what to do. Certification of teaching staff: new rules. Dismissal of those who have not passed certification

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 Regulations). 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, one must 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 (a 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 was able to recover by a court decision, since the questions specified in the attestation sheet did not meet the requirements of the job description, and the employee's answers to the questions of the commission members were not recorded s Appeal 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.

Conflict situation: the management of the company decided to dismiss the employee based on the results of certification, he does not agree. 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.

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 materials and conclusions of the commission are sent to the employer, the head of the enterprise, authorized to make decisions on dismissal. The manager considers the specified materials, after which he makes decisions on dismissal, or on leaving the employee in office. It is important that the manager observes the deadlines set by the Regulation.

Attention

If the dismissal during the certification occurred later, it can be challenged. The Regulation should clearly state the time frame for the manager to make decisions based on the results of the certification. So, if, nevertheless, an employee does not meet the criteria defined for a given position, he can be dismissed only after he, in the proper manner, is offered another job at the same enterprise, which 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 about 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 transfer to certain vacant positions. In the notification, you need to 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 with the transfer to another position. That is, the dismissal of an employee based on the results of certification does not occur immediately, after the meeting of the commission. The commission indicates its opinion in the protocol, and the employer can decide to send the employee to professional development, training, courses.

Or, make a decision that the employee can no longer work in this position, which he does not correspond to.

Dismissal of those who have not passed certification

It is necessary to clearly and uniformly determine the requirements for length of service and experience, professional skills and education for a specific position or profession, otherwise, during the certification procedure, which we will discuss below, questions may arise about the interpretation of certain provisions of the instruction. So, based on the definition of qualifications given in Art. 195.1 of the Labor Code of the Russian Federation, it can be said that the inconsistency of the qualifications of an employee for occupying a particular position can be defined as the employee's inability to perform the work entrusted to him by the labor contract with quality. Documentation support of certification Let us repeat that commercial organizations independently decide whether to carry out certification, and if so, in relation to 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 far as commercial companies and organizations are concerned, the legislator has not established a peremptory norm for them to hold such an event. Therefore, if a company has made a decision to conduct certification, it is subject to employees for whom a special procedure is provided. 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 employer's initiative (Article 81). This article contains a provision that permits the dismissal of an employee based on the results of personnel certification.

Certification as a reason for dismissal

The main of these documents is a local normative act - a provision on certification. In addition to it, you will need: - an order for certification; - certification schedule; - regulations on the work of the certification commission and the order on the approval of its members; - minutes of commission meetings, attestation sheets, etc. It is important to develop and approve the documents that are used during attestation and on the basis of which it is carried out, since in the event of a labor dispute following attestation, the competent authorities will first of all check local regulations and the procedure for their adoption and approval.
Let's say a few words about the certification regulations.

Employees who have not passed certification will be able to be fired within three months

Certification is important for both sides of labor relations: it will help the employer to form a talent pool, dismiss workers who do not meet the requirements for the position, and the employee will get the opportunity to get a deserved promotion. In this article, we would like to give general recommendations for the certification of your employees, to 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 the compliance of his qualifications with 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. An extraordinary certification can be carried out in case of planning a reduction in the number or staff of an organization, ineffective 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 his suitability for the position held in the municipal service. Certification measures with this category of employees are carried out once every 3 years.

As a result of the above measures, the attestation commission must make a decision on whether this employee is appropriate for the position. The powers of the commission also include issuing recommendations related to the promotion of individual municipal employees. Encouragement comes for high results in work, success, including the promotion of employees in positions.
If necessary, the certification 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 an employment contract. A letter from Rostrud of 2008 at No. 1028 states that on the basis under consideration, a person can be fired only after certification. The term "certification" is absent in the Labor Code of the Russian Federation. Nevertheless, certification is understood as an event that is a test of a person's moral, personal and business qualities. In addition, the employee is checked for the compliance of his working qualities with the position held.

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 makes no sense for them.

Terms of dismissal of employees who have not passed certification

workers who are in a state of incapacity for work (temporary).

On the initiative of the employer, employees can be fired if they did not cope with the attestations, but in compliance with the procedures specified for this case:

union members;
representatives of employees during negotiations (collective);
minors;
staff representatives who are involved in resolving a labor dispute;
workers who take part in the strike;
employees who take part in a labor dispute;
employees elected to the labor dispute commission;
heads of collegial bodies of primary trade union organizations (selected) and their deputies.

How to avoid dismissal based on the results of certification Based on the results of certification of an employee of the enterprise, the employer draws up a review.

Dismissal of employees who have not passed certification

To carry out certification, the employer must approve a local regulatory act governing the procedure for conducting and applied certification procedures - the provision on certification. Since, at present, there is no single normative act that would determine the general rules for attestation in commercial organizations, then when preparing a regulation on attestation in a commercial organization, one can take as a basis the Regulation on the procedure for attestation of civil servants and other regulations concerning the behavior of attestation of certain categories workers. Additional documents that need to be based on when carrying out certification are the internal labor regulations of the organization, regulations on structural divisions of the organization, employment contracts, job descriptions of employees.

The new procedure for attestation of teaching staff was put into effect on January 1, 2011.

Related materials:

According to the old rules, a teacher who wanted to earn more could voluntarily apply for a second, first or highest category. The categories were assigned: the second - by the school administration, the first - by the district education department, and the highest - in the ministry.

According to the new rules, the second category was abolished altogether, and the certification of teachers was entrusted to the educational authorities at the level of the subject of the Russian Federation. At the same time, certification has become mandatory: once every five years, every teacher who does not have a category, regardless of desire and length of service, must undergo certification in order to confirm compliance with the position held.

Those teachers who wish to achieve the first or highest category may instead apply for certification to establish that 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 manner.

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

a teacher of the first category will either have to submit an application for attestation to be assigned to the first category, or, in general, pass attestation to confirm compliance;
a teacher of the highest category will first have to be certified for the first category, and only two years later he will be eligible to apply for the highest.

In this case, the 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 canceled. From now on, these teachers will also have to pass certification every five years.

Mandatory attestation for compliance with the position held

Mandatory certification is carried out every five years to confirm the pedagogical worker's compliance with the position held.

Who is obliged to pass certification

Pedagogical workers who do not have categories and do not express a desire to pass certification for a qualification category.

Who does not need to pass certification

teachers who have worked for less than 2 years in this position;
pregnant women and women on maternity leave and parental leave until they reach the age of 3 years. Their certification is carried out no earlier than two years after the release from the indicated leave.

Teachers who are absent from work for more than 4 months due to illness will need to pass certification one year after they officially go to work. But if the above category of citizens expresses a desire to start a pedagogical test, no one can challenge their decision and prevent them from attestation.

For certification in order to confirm the suitability of the position held by teachers, their employer shall submit them.

If a teacher works in different teaching positions for the same employer and does not have a qualification category for any of them, then the employer's submission can be submitted at once for all positions in which he is.

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

List of required documents:

Personal signature statement
A copy of the result from the previous certification (if any)
Copies of diplomas of higher or secondary professional pedagogical education
A copy confirming the existence of the highest or first category of certification (if such was previously received)
A copy of the documents confirming the change of surname, if it has been changed
A cover letter or a detailed description from the place of work, which can confirm the level of competence and professional activity.
A month after the submission of documents, the applicant will receive a letter to his home address with a detailed description of the place and time of the certification.

How is certification

In the course of certification, in order to confirm their suitability for their position, teachers undergo written tests on issues related to their professional activities or computer testing to determine the level of proficiency in modern teaching and education methods.

Commission decision

In accordance with clause 13 of the "Procedure for attestation of pedagogical workers", the decision of the attestation commission is drawn up in a protocol and entered into the attestation sheet of a pedagogical worker. This document, as well as an extract from the administrative act of the attestation commission, are stored in the teacher's personal file.

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 is "not fit for the position."

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

In addition, dismissal is not allowed if it is possible to transfer the teaching staff 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, you cannot dismiss

an employee during the period of his temporary disability and during the period of being on 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 under the age of eighteen;
other persons raising these children without a mother.

Voluntary certification for the first or highest category

Voluntary certification 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 has the right to pass certification

1. An application for attestation for the assignment of the first category can be submitted by:

teaching staff with no categories;
teachers with the first category - if the validity period of the previous "voluntary certification" comes to an end.

2. An application for attestation for the assignment of the first category may be submitted by:

teachers who have the first category - but not earlier than 2 years after its assignment;
pedagogical workers with the highest category - if the validity period of the previous "voluntary certification" comes to an end.

Teachers who have worked in their position for less than 2 years, pregnant women and women on maternity leave, childcare until they reach the age of 3 are also eligible to apply for voluntary certification.

Who is applying for certification

Each teacher does it independently. The law does not establish centralized deadlines for submitting applications and periods for attestation, so a teacher can apply for attestation at any time.

Teachers who already have a category are advised to apply 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 passing the certification.

How to apply for certification

1. A teacher who decides to submit an application for voluntary certification collects a package of documents:

application in the prescribed form (there is a sample);
a photocopy of the attestation sheet of the previous attestation (if any);
a new attestation sheet filled in up to point 7 inclusive;
a portfolio of their professional achievements (there are recommendations for drawing up), which can be submitted to the certification commission both at the time of application, and within a month after that.

2. The package of documents is submitted to the attestation commission of the constituent entity of the Russian Federation - in the capital these functions are performed by the Moscow Center for Educational Law, located at st. Bolshaya Dekabrskaya, house 9.

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

Category requirements

According to the "Procedure for the certification of teaching staff" the following requirements are imposed on the categories.

Requirements for the first qualification category:

personal contribution to improving the quality of education based on improving teaching and 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 has been established;
possession of modern educational technologies and methods and their effective application in practice;
stable results of mastering by students, pupils of educational programs and indicators of the dynamics of their achievements are higher than average in the constituent entity of the Russian Federation, including taking into account the results of participation of students and pupils in all-Russian and international Olympiads, contests, competitions;
personal contribution to improving the quality of education based on improving teaching and upbringing methods, innovative activities, in the development of new educational technologies and active dissemination of their own experience in improving the quality of education and upbringing.

At the same time, Olympiads, contests and competitions are taken into account only for the assessment of those teaching staff whose work provides for these events. For example, this item is not valid for educational psychologists.

How is 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 be held both without the participation of the teacher passing the test, and in his presence. The desire to attend the meeting must be written in advance in the application.

If the teacher declared his desire to be present at the meeting, but did not appear at the meeting within the specified period without a valid reason, the attestation commission has the right to conduct 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 pedagogical worker. 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 educational 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.

The entry on the assignment of the category is made in the work book, in the section "Information about the work". For instance: "Established the first qualification category for the position of" teacher " - 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 "passed" to the first category remain without a category, and must pass certification for compliance with the position held.

Those who “did not pass” to the highest - the first qualification category remains until the end of its validity period. After that, the certification will have to be passed again - either to confirm the first category, or to establish the highest.

Appealing the decision of the attestation commission

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

Attestation at the enterprise serves to assess the quality of the skills and functional skills of the employee, necessary for him to professionally perform his job duties. Dismissal based on the results of certification occurs when the employee does not meet the qualification requirements, as evidenced by the conclusion of the commission in writing. Let's consider how and in what cases it is possible to fire an employee who has not passed the certification.

Dismissal of employees based on the results of certification

The conditions that an employee working at the enterprise must correspond to the position held are contained in the Labor Code of the Russian Federation.

The provisions of Article 81 establish that dismissal is possible after certification, at the initiative of the employer of an employee who has not confirmed his qualifications based on the results of certification.

You just need to be very careful about the issue of formalizing the results of knowledge testing, otherwise they can easily be challenged.

Attestation rules

In order to legally dismiss an employee during certification, if he did not cope with the certification requirements, the procedure itself should be properly prepared and carried out in accordance with the Regulation on certification and the norms of the law.

An attestation commission should be convened.
Certification is possible both orally and in writing.
All the employee's answers must be entered in a specially prepared certification sheet.
The employee must be familiarized with the completed attestation sheet, against signature.
In the minutes of the commission meeting, revenge for each employee should become, the result of the vote, according to which a decision is made for each individual employee.
In accordance with the conclusion of the attestation commission, a mark is put on whether the employee corresponds to the position he occupies or not.
Certification must be regulated by a special Regulations adopted at the enterprise.

The conditions for attestation are reflected in the Regulations. It may contain other wording about the results of certification. So, for example, you can enter information that the employee corresponds to the position, but must undergo retraining, or advanced training. It is also possible to add information to the Regulations that the certification commission has the right to give recommendations to the employee, with subsequent rechecking of the implementation of these recommendations by the employee.

Dismissal on the basis of certification

Particular attention should be paid to the correctness of the procedure for dismissal. Indeed, in the legislation there are many options for the outcome of the same event - not passing certification. For example, if an employee who is a member of a trade union is fired, a notification and a written opinion from the body of the trade union organization is required.

In the manner prescribed by Art. 373 of the Labor Code, before dismissing a member of the trade union based on the results of certification, all documents on dismissal, including the order and the results of certification, are sent first to the elected body of the trade union organization. After the trade union has received these documents, within seven days it must give a written opinion on the possibility of dismissing this employee.

It is prohibited by law to dismiss an employee based on the results of certification if he is on sick leave, or is on the next paid or unpaid leave. However, not everything is so simple even if the employee does not pass the certification, if he is not a member of the trade union. His dismissal also does not happen instantly, you need to take into account some procedures.

How is the dismissal based on the results of certification

After the certification has taken place, all materials and conclusions of the commission are sent to the employer, the head of the enterprise, authorized to make decisions on dismissal. The manager considers these materials, after which he makes decisions on dismissal, or on leaving the employee in office.

It is important that the manager observes the deadlines set by the Regulation. If the dismissal during the certification occurred later, it can be challenged. The Regulation should clearly state the time frame for the manager to make decisions based on the results of the certification.

So, if, nevertheless, an employee does not meet the criteria defined for a given position, he can be dismissed only after he, in the proper manner, is offered another job at the same enterprise, which corresponds to his level of qualification. At the same time, it is necessary to notify the employee about 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 transfer to certain vacant positions. In the notification, you need to 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 with the transfer to another position.

That is, the dismissal of an employee based on the results of certification does not occur immediately, after the meeting of the commission. The commission indicates its opinion in the protocol, and the employer can decide to send the employee to professional development, training, courses. Or, make a decision that the employee can no longer work in this position, which he does not correspond to.

Dismissal of an employee who refused to pass certification

By itself, the refusal of an employee to pass certification is not a reason for dismissal. He may be subject to disciplinary action in the form of a reprimand or reprimand. Nevertheless, according to article 21 of the Labor Code of the Russian Federation, such an employee violates labor discipline at the enterprise. If he was familiarized with the job description, the work schedule, the Certification Regulations, was duly notified of the upcoming certification, and still refuses to pass it, such an employee can be brought to disciplinary responsibility.

p\u003e If the employment contract and the Regulations contain information on certification and dismissal, in case of repeated refusal of certification, or in violation of labor discipline by an employee, he can be dismissed under the article, in accordance with the initiative of the employer.

Judicial practice has different opinions. On the one hand, the courts have repeatedly indicated in their acts that the violation of labor discipline, if documented, is a legal basis for dismissal. But in the labor legislation there is no article that directly permits the dismissal of an employee if he does not pass certification, in case of his refusal, and not an official inconsistency. Therefore, if an employee refuses to undergo certification, this should be documented. The manager has every right to issue an order to bring the employee to disciplinary action.

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

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

Let us recall that at present, quite a lot of professional standards have been developed, and ultimately they are intended to replace qualification reference books. However, it is too early to write off ETKS and the Qualification Directory of the positions of managers, specialists and employees.
On the basis of these Directories (and now - professional standards), job descriptions are developed, in which, in addition to the direct duties and functions of the employee, the employer can prescribe requirements for work experience and educational level, as well as other requirements for occupying a particular position (for example, possession of one or several foreign languages, the ability to work on a computer).

Certification of teachers for compliance with the position held

Thus, in your case, you need to: - make changes to the certification schedule, setting in it a new date for its conduct for the absent employee, - invite the employee to read the Certification Regulations and deliver a notification of the certification date, - if the employee refuses to familiarize , draw up an appropriate act - send a letter to the employee about the upcoming certification and attach a copy of the Certification Regulations to it. Details in the materials of the Personnel System: 1. Answer: How to carry out certification of employees The purpose of certification What is certification of employees for? Perform certification of employees in order to determine their business qualities and evaluate the results of their work.

Certification of employees as a basis for dismissal

One of the grounds for terminating an employment contract on the initiative of the employer is the employee's inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by the results of certification (clause 3 of part 1 of article 81 of the Labor Code of the Russian Federation). As practice shows, dismissal on this basis quite often ends with proceedings in court, and often their result is the employer's loss.
In this article, we will tell you what is meant by certification, in relation to which categories of employees it can be carried out, what is its frequency and what is the procedure for dismissing an employee if, based on the results of certification, he is recognized as not appropriate for the position held or the work performed. Certification concept.

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

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

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

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

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

Regulation on certification and legal norms.

An attestation commission should be convened.
Certification is possible both orally and in writing.
All the employee's answers must be entered in a specially prepared certification sheet.
The employee must be familiarized with the completed attestation sheet, against signature.
In the minutes of the commission meeting, revenge for each employee should become, the result of the vote, according to which a decision is made for each individual employee.
In accordance with the conclusion of the attestation commission, a mark is put on whether the employee corresponds to the position he occupies or not.
Certification must be regulated by a special Regulations adopted at the enterprise.

The conditions for attestation are reflected in the Regulation.

What should an employer do if an employee refuses certification?

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

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

Such a decision should be made by the head of the organization or the employee who is responsible for the appointment of certification. Issue the decision by order.

Important

If the order of dismissal cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it by signing, a corresponding entry is made on the order.

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

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

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

If the employee has not passed the certification for the last day

Attention

An important condition that must be fulfilled when carrying out the certification of its employees is that the conditions and procedure for carrying out activities for the certification of employees at enterprises must be fully spelled out. Women who are in a position of pregnancy.

Because even when it is possible to determine their inconsistency with the position held at a certain enterprise, their dismissal will be impossible in accordance with the current article of the Labor Code of the Russian Federation. Employees who for a certain period of time are on legal leave associated with caring for children under 3 years of age. In addition, the implementation of planned activities that are associated with the direct re-certification of employees provide an excellent opportunity for the rational movement of personnel of their employees.
Oksana Vlasova 12/28/2016 4:19:14 PM Articles on the subject What is easy labor and who falls under it? What state bodies are investigating the unfortunate ... How is the certification of employees for compliance ...

The employer has the full legal right to terminate the drawn up employment contract with a certain employee who does not fully correspond to his position or the work performed in cases where he does not have the required knowledge and experience for a certain qualification. This justification is indicated in stat. 81 points 3 parts. 1. Features of dismissal of an employee in connection with the inconsistency of the position held In order to be able to the manager on a completely legal basis to dismiss his employee who does not meet his qualifications, you will need to use the stat.

It might be useful to read: