Dismissal of an employee who has not passed certification. Terms of dismissal of employees who have not passed certification. How certification is carried out

The traditional system of attestation of employees by the current legislation means a procedure, the content and procedure of which the employer develops independently. There is no article titled "Attestation of employees for compliance with the position held". but Labor Code according to Article 81, determines that the procedure for carrying out certification is established by a local regulatory act of the employer.

For example, certification of cultural workers is determined by the Procedure approved by the Deputy Minister of Culture of the Russian Federation, dated 08.02.2010 No. 7790-44 / 04-ПХ. This normative act, in particular, stipulates that employees who, due to the nature of their activities, do not require special skills or knowledge, for example, unskilled workers, are not subject to certification.

There is a nuance: the employer develops the regulation on the certification of subordinates independently, taking into account the opinion of the trade union. But if there is no trade union in the organization, then there is no need to coordinate anything with anyone.

Regulation on certification of employees

IMPORTANT!

Since in 2019 the certification of workers is regulated by the employer, we recommend taking the Regulation on the procedure for conducting certification, approved by the Resolution of the USSR State Committee of 05.10.1973 No. 267, as the basis for the development of an internal regulatory act.

The current legislation does not limit in any way the categories of employees in respect of whom certification can be carried out, as well as the frequency and the procedure for conducting the certification itself. The employer has the right to establish, at his discretion, any procedure for carrying out this procedure in relation to any categories of employees.

We recommend that you approach the development of the document, which will be called "Regulations on the certification of workers", with attention. In order to exclude possible negative judicial practice, as well as to ensure that the certification of employees for compliance with the position held is as clear as possible to both employees and the employer himself, it is advisable to include the following sections:

General information.
Section about preparatory activities.
Section on certification.
Final provisions.
Applications.

These sections are provided as examples and do not claim to be universal. We want to give the employer a step-by-step algorithm so that the certification of employees at his enterprise does not fail and is as objective as possible.

General section

Step 1. Outline the purpose of the certification

For one employer, it will be enough to write that the purpose of this event is to determine the suitability of the employee's qualifications for the position he holds.

Another can set out the goal of rational use of the labor resources of their employees, increasing the effectiveness of their work and responsibility for the assigned work. Formulate clearly and specifically the goal you are striving to achieve.

For example, in accordance with the Regulation approved by the Decree of the Government of the Russian Federation of March 16, 2000 No. 234, the purposes of certification of enterprise managers are:

an objective assessment of the activities of managers and determination of its compliance with the position held;

assistance in improving the efficiency of enterprises;

stimulating the professional growth of enterprise managers.

Step 2. Determine the composition of the certified workers

Taking into account that the legislation does not restrict the employer in the choice of categories of employees for their certification, we still recommend NOT to include in the lists of certified:

pregnant women;
who have worked in office for less than a year;
those on parental leave and employees who have worked for less than one year after starting work from this vacation;
old age pensioners;
minors;
employees with whom a fixed-term employment relationship has been concluded.

The rest of the staff can be certified.

For example, when attestation of prosecutors is carried out, the number of attested does not include:

pregnant women;

those on parental leave (they can be certified six months after leaving the leave);

employees who have reached the age limit for serving (if they have not made significant omissions in their work);

officers in the reserve of the military prosecutor's office when assigning them the initial class rank.

All the rest of the employees of the prosecutor's office are subject to certification in accordance with the Order of the Prosecutor General dated 20.06.2012 No. 242.

Step 3. Fix the frequency of certification

Certification can be carried out every year, but such a frequency is unlikely to contribute to the formation of a healthy atmosphere in the team. Therefore, the best option would be a period of no more than once every three years and at least once every five years.

For example, according to the text of Federal Law No. 342-FZ of 30.11.2011, attestation of employees of internal affairs bodies is carried out once every four years.

Step 4. Indicate the grounds for the extraordinary certification

It is better to provide (in case of separation) and fix that extraordinary certification can be carried out:

by agreement of the parties;
in the event of a change in working conditions for technological reasons;
in case of repeated improper performance of their official duties.

Then the employer will have the right to send the employee for an extraordinary certification, based on the results of which an appropriate decision is made, including that provided for in paragraph 3 article 81 of the Labor Code of the Russian Federation.

For example, in the Regulation approved by the Ministry of Transport of the Russian Federation of March 11, 1994 No. 13/11 (registered in the Ministry of Justice on April 18, 1994, No. 548), early certification is carried out in cases where gross violations of the rules and regulations governing the safe operation of vehicles are detected, or transport accidents with serious consequences.

Section on preparation for certification

In this section, it is necessary to clearly and understandably indicate what steps and measures the employer and his subordinate officials must take.

Step 1. Determine the composition of the commission

The composition of the commission is determined by the order of the employer.

The commission must have a chairman, rank-and-file members and a secretary.

It is necessary to indicate which of them has the right to vote and who does not.

It is also important who will have the decisive right to vote if the opinions of the members of the commission are equally distributed (to avoid this, the commission should be created from an odd number of representatives of the employer).

The composition of the commission is permanent, changes can be made either due to a conflict of interest or in connection with personnel transfers.

It is important to define the powers of the commission members. So, the chairman is responsible for the validity and legality of the collegial decisions taken, the members of the commission - for the comprehensiveness and objectivity of the decisions made, the secretary - for technical work.

Step 2. Make a schedule

The certification schedule is a document that the employer prepares annually. Approved by a separate order. The schedule should be approved in advance in order to have time to familiarize those who are to be certified with it.

The chart indicates:

the list of employees subject to certification this year;
date and place of the procedure;
time of submission of the necessary personnel documents for certified employees and full name. responsible for providing.

Step 3. Notify employees about the upcoming certification

All certified employees must be notified of the procedure in advance and signed. How much in advance, the employer decides, but the optimal period is one month.

The form of the notification is not important, the fact confirming familiarization is important.

If the employee refuses, an appropriate act is drawn up.

If sick, a corresponding notification is sent to the place of registration and residence by registered mail with a receipt acknowledgment.

Step 4. Obtain the required HR documents

Due to the fact that the attestation commission makes decisions on the basis of the documents provided, the employer has the right to independently foresee which document and in what time frame should be submitted to the commission.

It can be any requirement, like a portfolio.

For example, until recently, pedagogical workers of state government institutions of social services in the Leningrad Region had to provide for certification a portfolio of a social worker characterizing the results of their activities. However, it is worth noting that at present this requirement has been canceled by the Order of the Committee for Social Protection of the Population of the Leningrad Region No. 1 dated January 21, 2013.

Sample portfolio of a social worker for certification

In practice, most often the employer demands to provide the commission with a characteristic or an official response to the employee, which must be prepared by his immediate superior.

The characteristics of the employee must be familiarized with the signature. After reviewing this document, it is submitted to the certification commission.

IMPORTANT!

It is necessary to provide for the possibility for the employee to disagree with the content of his characteristics and submit written objections to the certification commission.

The deadline for submitting all documents is indicated in the schedule.

IMPORTANT!

A characteristic not provided in time in case of controversial certification results is a formal reason for the court's recognition of the decision of the certification commission as unlawful in connection with a violation of the procedure.

Certification section

This section is a description of the step-by-step procedure for certification of workers at the enterprise.

Step 1. Determine the quorum

For this, the regulation should state that with the participation of two-thirds of the composition of the commission, its decisions are considered competent. If the number of commission members is less, the certification is postponed to another period determined by the employer, taking into account the requirements of the described regulation.

Step 2. We describe the procedure itself

We write that the certification of employees for compliance with the position should be carried out in the presence of the employee himself and his immediate supervisor in a friendly atmosphere (the employee is already under stress).

We indicate that the boss represents the employee, and then the members of the commission ask questions of interest to them.

After the questions are asked and the employee answers them, the certified employee is removed, and his manager and members of the commission remain to discuss and make an appropriate decision.

After the decision has been made, the employee is invited, and the chairman announces the decision of the commission.

Step 3. Fixing the decision-making mechanism

IMPORTANT!

Any decision must be justified and supported by an appropriate document. If the employee is a scoundrel, this is not a reason to recognize him as not appropriate for his position.

The employee's professional activity should be assessed in relation to the qualification requirements for his position. It is necessary to take into account the personal contribution of the employee to the achievement of the goals facing the organization, as well as the complexity and intensity of the work that he performs.

It is worth paying attention to the absence or presence of facts of violations of the work schedule and job duties.

All doubts are interpreted in favor of the employee.

Step 4. Options for decisions of the commission

We describe what decisions the commission can make:

the employee corresponds to the position held;
send for training to match the position;
apply to the employer for an increase (salary, in position);
consider the issue of demotion due to insufficient qualifications;
does not correspond to the position held, recommend to send for training for advanced training or to be fired due to insufficient qualifications.

Step 5. We draw up the decision of the commission.

All decisions of the commission are drawn up in a protocol or entered in the employee's certification sheet. It makes no sense to draw up both documents, in fact they are one and the same, only the form is different. At the same time, no one forbids filling in both documents.

The certification sheet and the protocol are signed by all members of the commission present at the certification.

IMPORTANT!

Those members of the commission who were not present at the certification are not allowed to sign these documents. If they sign, this may serve as a reason for canceling the commission's decision and initiating a criminal case under Article 292 of the Criminal Code of the Russian Federation.

The order must be issued within a certain time frame, the employer himself will determine when, but not more than one month.

It is necessary to provide that the terms can be interrupted (when going on vacation, temporary absence for unexplained reasons or temporary disability, this period should be interrupted).

Violation of the terms entails cancellation of the decision by the attestation commission.

For example, if A.V. Petrov will be recognized as inconsistent with his position, the employer has the right to dismiss him, send him for training or demote him (his will, the certification commission gave him such powers).

If the employer decides to relocate A.V. Petrov to a lower position, and A.V. Petrov will refuse, the employer will have the right to fire him on the same grounds.

Step 6. Employee rights

It is advisable to point out that in case of disagreement with the results of certification, the employee can appeal this decision in the manner prescribed by law.

Final provisions

This section contains information on where to store approval documents. All attestation documents are stored in personnel departments, protocols are in the nomenclature folder, attestation sheets are in the personal files of employees.

The storage period for these documents is 75 years.

Sample regulation on certification of workers

Sample Schedule for Employee Certification

Give your opinion on this article or ask experts to get an answer

Personnel certification is the most effective assessment of the company's personnel. This event is an integral part of HR management. Certification is required for a certain category of workers. The imperative requirement for them is established by law. At the discretion of the administration of the enterprise, voluntary certification can be carried out. It pursues the goal of optimization in personnel management, as well as increasing the efficiency of personnel in a particular company. The certification shows the employer whether his employee is suitable for the position he occupies.

What is included in the concept of employee certification?

Assessment of the labor and personal qualities of a person, his labor indicators at the enterprise is included in the concept of certification. The employer must constantly stimulate a competent and responsible employee to improve their qualifications at work. The effectiveness of the work of the staff consists of the effectiveness of the use of organizational resources, including the potential of each of the employees.

Attestation helps to obtain information for making management decisions. This is important from the point of view of assessing, analyzing and researching data on the subject - how much the potential of employees allows you to realize the goals and objectives of the company. This is true for developing, large companies that use a flexible management system in their activities. Certification is also important from the point of view of obtaining information for the current work with personnel, to identify areas that need additional control.

Is it obligatory or not?

The law contains a list of types of work activities where it is necessary to carry out certification activities. These are, for example, employees (civil, municipal), teachers, police officers, teachers. That is, the legislator establishes that certification is mandatory for budgetary institutions. As for commercial companies, organizations, the legislator has not established a peremptory norm for them to hold such an event.
Therefore, if the company 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 dismissing 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. Dismissal can be carried out if, based on the results of the event under consideration, it was revealed that a person holding a certain position at the enterprise does not correspond to it. The certification algorithm is determined by labor legislation, regulations, local legal acts, which are adopted taking into account the opinion of trade unions.

Dismissal of an employee based on the results of certification can be carried out if the employer is unable to transfer the employee to another job. The employee must agree to this in writing. The work must be suitable for him in terms of qualifications and health conditions. The employer has the right to transfer the employee to a lower position, a lower-paid job. The transfer must be carried out in the same locality where the employee of the company worked. 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 under No. 1028 says 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 for some workers is meaningless. 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. In particular, you cannot fire:

a pregnant woman;
a woman with a child under 3 years old;
a single woman raising a disabled child under 18;
a person who has a disabled child and is the only breadwinner in the family;
a person who has a child under 3 years of age and who is the only breadwinner in the family, who brings up three or more children.

The dismissal of these workers, even if they have not passed the certification, is not allowed. On the basis of article 81, part 1, paragraph 3, the employer is obliged to know about the restrictions that prevent him from dismissing:

employees on vacation;
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 certification results

Based on the results of certification of an employee of the enterprise, the employer draws up a review. This document characterizes the level of theoretical and practical skills of the employee, his moral and volitional qualities. It also indicates whether the person is fit for the position. The review reflects not only the general indicators that are characteristic of this category of employees, for example, the educational level, but also data on the duration of work in the position held, the personal qualities of the subject, the degree of independence in the work process, the quality of work, responsibility for the assigned task, ability adapt to the situation, use new approaches in solving the problems that have arisen, etc.

If the manager has submitted a negative review of the employee to the attestation commission, the dissatisfied employee has the right to file an objection to the review in writing. The objection must be motivated. If the attestation commission nevertheless decides to dismiss the employee, he can appeal this decision in court. The appeal algorithm is indicated in article 392 of the Labor Code of the Russian Federation. The term for applying for help to the court is one month, which begins to be counted from the moment the employee received the response; there is no need to pay for services rendered by the state. If there is a valid reason, the period that was missed for going to court is restored when the application is filed there. The considered category of cases is within the jurisdiction of the court of general jurisdiction, therefore, it is necessary to apply to the district court at the place of residence or location of the company.

Dismissal based on the results of certification of civil servants

Based on the results of certification in relation to employees, the commission makes a decision:

corresponds to the position he occupies;
corresponds to the position, subject to the improvement of work, the fulfillment of the recommendations given to the employee by the certification commission, passing another certification within the time period specified by the commission;
inconsistency of a civil servant with the position held.

The certification commission forms the decision in the form of a protocol. This document is signed by all participants of the certification commission. Its meeting will be competent if at least 2/3 of its members are present. The practice of courts shows that workers who were dismissed as a result of an attestation event on the basis of an order by a decision of the commission are reinstated at work, if its meeting was found unauthorized.

Within a month after the attestation event and based on its results, a legal act is issued stating that a civil servant must be legally included in the personnel reserve intended to fill vacant positions in the civil service in the order of professional growth. In addition, the act contains information that a civil servant is sent for retraining or advanced training, or is demoted.

In case of refusal of a civil servant from retraining, advanced training, transfer to a civil service position, they have the right to fire him. 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. The results of the event are reported to the employees after the vote of the members of the established commission has been summed up. Materials related to certification are transferred to the employer's representative or employer.

Based on the results of the certification, the employer makes a decision related to rewarding individual employees for their achievements within a period not exceeding one month from the date of the certification and summing up the results. In addition, the demotion of an employee is carried out in the same period of time. The attestation commission, analyzing and researching the attestation results of a particular employee, can issue a recommendation to send him to receive professional education in an additional manner.

A municipal employee may disagree with a demotion. In addition, if a municipal employee cannot be transferred to another position with his consent, the employer has the right to fire him within a month from the date of certification. The basis for dismissal will be the inconsistency of the employee with the position that he held earlier, before the certification event. The results of certification confirm that the employee does not have sufficient qualifications for his position.

If more than a month has passed since the event, the employer missed the term of dismissal without a valid reason, he will no longer be able to dismiss the employee on the basis in question. If a municipal employee does not agree with the results of the attestation event, he has the right to appeal its results to the judicial authority.
The considered category of cases is within the jurisdiction of the court of general jurisdiction, therefore, it is necessary to apply to the district court at the place of residence or location of the company. Based on the results of the consideration of the controversial case, the court makes a decision in which it can reinstate the employee in office.

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 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.

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 workers 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 regarding the interpretation of certain provisions of the instructions. 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 discrepancy between 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 respect of 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 attestation 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 the 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 regulation on certification.

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 employees who do not meet the requirements for the position, and the employee - 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 makes a review.

Dismissal of employees who have not passed certification

To carry out certification, the employer must approve a local normative 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 normative acts 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.

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, about which there is a written conclusion of the commission. 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 familiar 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 holds 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 union member is fired, a notification and a written opinion from the union body is required.

In the manner prescribed by Art. 373 of the Labor Code, before dismissing a member of the trade union based on the certification results, all documents on dismissal, including the order and certification results, are sent first to the elected body of the trade union organization. After the trade union has received these documents, within seven days it is obliged to 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, in the proper manner, he is offered another job at the same enterprise, which corresponds to his level of qualifications. 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 the position held, 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 remark. 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 Regulation, was duly notified of the upcoming certification, and still refuses to pass it, such an employee can be brought to disciplinary responsibility.

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

Judicial practice has different opinions. On the one hand, the courts have repeatedly indicated in their acts that 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.

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: 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.
The same teachers who wish to achieve the first or highest category may instead apply for attestation 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 certification for compliance with the position held

Mandatory certification is carried out every five years to confirm the pedagogical worker's suitability for 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.

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.

How to apply for certification

The employer draws up a representation for 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 the position held. Also, the document should contain information about the teacher's continuing education courses and information about the results of previous attestations.
Not later than a month before the start of the certification, the employer acquaints the teacher with the performance against signature.
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 teacher's certification. In the capital, these functions are performed by the Moscow Center for Educational Law, located at ul. Bolshaya Dekabrskaya, house 9.
The period for passing the certification should not exceed 2 months. Not later than a month before the certification, the employer informs the pedagogical worker about the date, place and time of his 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 teaching staff", the decision of the attestation commission is drawn up in a protocol and entered into the attestation sheet of the teacher. This document, as well as an extract from the administrative act of the certification commission, are stored in the teacher's personal file.

Upon successful completion of the certification, the commission issues a verdict: “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 - up to eighteen years;
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:

pedagogical workers without 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 highest category can 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, therefore, 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 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.

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