Regulations on certification of employees. Certifying commission
General provisions
Certification of employees is an effective tool that allows the employer, based on an assessment of the work activity of employees (checking business qualities, knowledge, skills), to determine whether they have sufficient qualifications, as well as their compliance with the position or work performed.
Requirements for the qualification of employees are determined by: an employment contract, job description, local regulations, qualification guides and professional standards.
With a small number of staff and without certification, it is easy for an employer to figure out which of the employees adequately performs their job duties and deserves promotion and encouragement, and which regularly makes mistakes and does not bring much benefit. But, the larger the number of employees, the more difficult it is to do this.
With regard to civil servants and budgetary organizations of certain areas of activity, the need for attestation and the procedure for its implementation are established by regulatory legal acts. Certification of employees performing labor duties for other employers is not mandatory, is carried out by decision of employers and is regulated by local regulations prepared taking into account the norms contained in the Labor Code of the Russian Federation and other regulatory legal acts.
Taking into account that, following the results of certification, the employer has the right to terminate labor relations with those employees who do not correspond to their position, in order to avoid challenging the procedure and recognizing local regulations as discriminatory and worsening the position of employees, it is recommended to include in the internal documents of the employer standards similar to those contained in regulatory legal acts. acts that determine the conduct of certification.
You can contact labor law lawyers who also represent the interests of the Customer in the judiciary. The cost of legal advice with the study of documents available to the Customer is 2000 rubles.
Benefits of Certification
The vast majority of employers do not carry out certification of employees, finding this procedure labor-intensive and complicated, and many of those who carry it out are often limited to the formal collection of papers and signatures, which ultimately does not bring proper results.
At the same time, competent performance appraisal of employees not only brings benefits and gives a real return, but is also of great importance for both sides of labor relations:
In modern conditions, certification can also help the employer in determining the system of remuneration of employees, and it is obvious that the assignment of a category or category based on the results of certification is more objective than the implementation of these actions at the request of the immediate supervisor or the head of the organization alone.
The tasks of certification
The main objectives of certification are:
The procedure for certification
To carry out the certification of employees, the employer must approve (as an option - a regulation) that determines:
The local normative act should provide for clear and precise criteria that allow an objective assessment of the business qualities of an employee (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No.).
It is necessary to familiarize with the local normative act that determines the procedure for the certification of an employee against signature. It should be borne in mind that in the event of a labor dispute, the employer will be required to provide evidence that the employee was made aware of the possibility of assessing the results of his work and personal business qualities in the form of certification and that the results of the certification may be followed by the dismissal of the employee (Determination of the Supreme Court RF dated 06/04/2004).
As follows from the Appellate ruling of the Moscow City Court dated February 24, 2015 in case No., the fact that the employee is familiarized with the employer's order to conduct certification does not indicate that the employee is familiar with the relevant local regulatory act regulating the certification (Regulations). In this regard, the employer needs to have indisputable evidence confirming the familiarization of the employee with all that determine the procedure for conducting attestation, with which the employee must be familiarized against signature.
It is also necessary to take into account that in the absence of provisions in the local regulatory act regulating the timing and procedure for organizing the necessary explanatory and preparatory work organized by the employer in order to inform employees about the tasks, conditions and forms of certification, as well as in order to identify the most objective picture of the activities of the person being certified employee, in the event of a labor dispute, the court may point to the employer’s failure to take the necessary actions during the certification and make a decision in favor of the employee (for example, the Appeal ruling of the Moscow City Court dated February 24, 2015 in case No.).
After the implementation of the above actions, the employer, guided by the local regulatory act, must approve the certification schedule and bring it to the attention of each certified employee no later than one month before the start of the certification. The schedule should indicate the date and time of the attestation, as well as the date of submission to the attestation commission of all necessary documents. Violation of this obligation by the employer may lead to the recognition of the certification as illegal.
It is advisable to fix the obligation of the employee to undergo certification in the employment contract. If the employee refuses to participate in the certification, this provision of the employment contract will be evidence of the employee's misconduct and the basis for holding the employee liable.
In terms of the employee’s refusal to conduct certification, there is an interesting ruling of the Moscow Regional Court dated 06/10/2010 in the case, which established that the employee who applied to the court demanding that the certification be recognized as illegal and reinstated at work, during the period of work against signature, was familiarized with the current the defendant has a provision on attestation, according to which, if the employee fails to appear without good reason or refuses to attest, the employee is recognized as uncertified, i.e. inappropriate for the position held and subject to dismissal. The order of the general director provided for a scheduled certification, which was familiarized with all employees of the organization, including the employee challenging the dismissal. On the date specified in the order, a meeting of employees subject to certification was held, at which the employees were explained the rules, procedure and terms for certification, given sample tasks / questions, the employee refused to sign the protocol, about which the employer drew up an act. Then a meeting of the attestation commission took place, from the protocol of which it follows that the meeting of the commission was postponed indefinitely, since the employee asked for permission to leave the office and left the territory of the enterprise. It follows from the explanation of the employee that on the day of the certification she waited in the waiting room for 2.5 hours, after which she became ill and went to the hospital. After that, the employee was on sick leave for more than three weeks and returned to work. From the minutes of the meeting of the certification commission, which took place after the worker went to work, it follows that she refused to undergo certification, about which an act was drawn up. Further, according to the certification sheet, the employee was recognized as not corresponding to the position held, as she refused to undergo certification, after which she was notified that there were no vacant positions in the organization and was dismissed from her position on the basis of paragraph 3 of the first part of Article 81 of the Labor Code of the Russian Federation. Based on the results of consideration of this case, the court concluded that the employer had legal grounds for terminating the employment contract with the employee under clause 3 of part one of Article 81 of the Labor Code of the Russian Federation, since the employee refused to undergo certification.
At the same time, one should also take into account the opposite position of the court, set out in the Appeal ruling of the St. Petersburg City Court dated 07/08/2014 No., according to which:
"The judicial board sees no grounds for reassessing the evidence, since there is evidence that the plaintiff's refusal to undergo certification entailed negative consequences, the seriousness of which allows us to conclude that the applied disciplinary sanction in the form of dismissal corresponds to the severity of the misconduct, case materials "do not contain and such circumstances are not given in the appeal. Having recognized the dismissal of K. R. A. as illegal and satisfying the plaintiff's demands for her reinstatement in the state civil service, the court of first instance reasonably recovered from the employer in her favor wages for the time of forced absenteeism."
Frequency of certification
The optimal frequency of certification is no more than once every three years.
Considering that the procedure requires time and creates a tense atmosphere in the team, the establishment of a shorter period seems inappropriate.
It should also be borne in mind that the certification period less than once every three years may be recognized as worsening the position of the employee in comparison with the norms contained in regulatory legal acts. For example, it is precisely this frequency of attestation (three years) that is established for state civil servants, heads of state unitary enterprises, employees of territorial bodies of the antimonopoly service, the FSS of the Russian Federation, etc.
At the same time, before the expiration of three years after the previous certification, an extraordinary certification of employees may be carried out in the cases and in the manner established by the local regulatory act of the employer.
Employees subject / not subject to certification
When determining the circle of employees subject and not subject to certification, it is advisable for the employer to take into account the special guarantees established by regulatory legal acts. LLC "TeKa Group" recommends being guided by the Regulations on the certification of state civil servants of the Russian Federation dated 01.02.2005 (with the possibility of clarification), which establishes that employees are not subject to certification:
The composition of the certification commission
As a rule, the composition of the attestation commission is as follows: chairman, deputy chairman, secretary, members of the commission. The chairman of the commission is usually appointed the head of the organization or his deputy, and the members of the commission are the heads of various structural divisions. The recommended number of commission members is from three people, the maximum number of commission members is not limited.
Employers whose activities are in many different areas or have large separate structural divisions in terms of staffing, for the convenience of attestation, can create several attestation commissions (for the head unit and separate structural divisions). At the same time, the local regulatory act regulating the certification should indicate the procedure in accordance with which a commission is created in a separate subdivision, determine the powers of officials, and also regulate other issues that arise during the certification process.
Attention! The composition of the attestation commission should include a representative of the elected body of the relevant primary trade union organization (if such a body exists and with the exception of cases when the local normative act does not provide for the dismissal of employees based on the results of the attestation). If during the attestation, which served as the basis for dismissal, a representative of the elected trade union body of the corresponding primary organization was not included in the attestation commission, such dismissal is illegal (Overview of the cassation and supervisory practice of the Judicial Collegium for Civil Cases of the Krasnoyarsk Regional Court for 9 months).
When carrying out certification in relation to civil servants, in accordance with Article 48 of the Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation", the certification commission includes a representative of the employer and (or) civil servants authorized by him (including including from the civil service and personnel department, the legal (legal) department and the department in which the civil servant subject to certification replaces the position of the civil service), a representative of the relevant public service management body, as well as representatives of scientific and educational organizations, other organizations , invited by the civil service management body at the request of the employer's representative as independent experts - specialists on issues related to the civil service, without indicating the personal data of the experts. The number of independent experts must be at least one quarter of the total number of members of the attestation commission.
Feedback on an employee
When carrying out certification, an important stage is the preparation (characteristics) for the certified employee. The employee’s immediate supervisor can best evaluate the employee’s activities, using the following criteria and indicators established by a local regulatory act when preparing a review:
The employee should be familiarized with the review against signature.
Forms of certification
To obtain an effective result, TeKa Group LLC recommends employers to use the following forms of certification:
1. Oral form in the form of an individual interview
An individual interview is conducted by the immediate supervisor during the preparation of a review for the employee.
In the course of an individual interview, the employee is explained the grounds and procedure for attestation, the responsibility for the employee’s failure to appear for certification, clarifies with the employee and enters in the recall information about the employee’s attitude to his position and the work performed, as well as about the difficulties and problems that arise in the performance of the labor function, requiring any decision on the part of the employer.
2. Oral form in the form of a peer interview
A collegiate interview is conducted by the attestation commission after consideration of all the submitted materials. The interview should be conducted in a calm atmosphere, excluding nervousness, so that the employee has the opportunity to feel confident and worthy of participating in the dialogue.
During the collegiate interview, the members of the commission listen to the messages of the certified employee and clarify the information they are interested in from him. The commission may invite the employee to independently evaluate his work for the period subject to certification and listen to his opinion on what the maximum result of his activity could be, and if such a result is not achieved, what exactly the employer can do to achieve it.
If the employee finds it difficult to answer any questions, the employer should not insist on the mandatory provision of an answer. The main tasks of the commission are: to listen to the employee; assess the level of his preparedness and compliance with the position; identify the problem and its causes; draw appropriate conclusions and make the necessary decisions.
3. Written form in the form of tests to be completed by the employee
This form of certification is the most objective, since it provides an equal approach to assessing the level of professional training and knowledge of each certified employee. involves a thorough organizational preparation, including the formation of a list of questions and the approval of certification tests.
The number / percentage of correct answers that determine the successful completion of the certification by the employee must be set in advance. The questions included in the tests must correspond to the profession (specialty) and qualifications of the certified employee. Over time, which implies the development of areas of society, the questions in the tests should be updated.
The performance appraisal of employees is usually accompanied by a record, in which all the information obtained during the procedure is entered. In accordance with the Order of the Ministry of Culture of the Russian Federation of August 25, 2010 No. 558 "On approval of the List of standard administrative archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating the periods of storage", minutes of meetings, decisions of attestation commissions are stored for 15 years (at enterprises with difficult, harmful and dangerous working conditions - constantly).
It should be borne in mind that if the employer considers the information provided by the employee during the certification to be incomplete or not corresponding to reality (incorrect), in the documents drawn up by the employer (certification sheet / protocol / written test of the employee, etc.), it is advisable to indicate in detail in what exactly are the claims to the information provided by the employee, and what information should have been provided to them. So, for example, from the Appeal ruling of the Moscow City Court dated February 24, 2015 in case No., by which the dismissal of an employee under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation was declared illegal, it follows that:
“In support of the legality of the dismissal, the defendant also referred to the fact that G. could not give a complete and correct answer to any of the seven questions put to her during the attestation. d. 101) it is impossible to draw a conclusion about the correctness or incorrectness of the plaintiff's answers to the questions raised, from the testimony of the chief accountant F. interrogated at the court session as a witness, who was a member of the attestation commission, it is also impossible to conclude what the incorrectness or incompleteness consisted of G.'s answers to the questions posed and to what extent G.'s answers objectively testify to the inconsistency of the plaintiff with the position of an accountant.
Guarantees of objectivity of certification
The objectivity of the certification of employees is guaranteed by the following conditions:
1. Collegiality of inspectors
Provides a comprehensive and objective review of documents reflecting the employee's labor activity, an unbiased assessment of the level of his qualifications when making a decision on the compliance / non-compliance of the employee with the position held and the work performed.
The commission should not be formed on the principle of including in it the largest number of representatives of the administration. The commission should include the most experienced specialists and representatives of the trade union, who have a high level of qualification, firmness of character and have a reputation as people who are not conflictual, devoid of a preconceived point of view, polite and tactful.
If necessary, a local regulatory act may provide for the possibility for the employer to include specialists from third-party organizations in the attestation commission.
The employer should keep in mind that in the event of a labor dispute, members of the commission may be summoned to court as witnesses to give explanations regarding the performance appraisal of the employee, and in this case they will have to substantiate the employer's arguments why the employee could not be considered as having passed the appraisal. And members of the commission may not always carry out such actions, which is reflected in court decisions - for example, according to the Appeal ruling of the Moscow City Court dated February 24, 2015 in case No., in support of the legality of the dismissal, the defendant referred to the fact that none of the seven questions, during the certification she could not give a complete and correct answer. Meanwhile, from the examination sheet with answers presented in the case file, it is impossible to draw a conclusion about the correctness or incorrectness of the plaintiff's answers to the questions raised; what were the incorrectness or incompleteness of the plaintiff's answers to the questions posed and how her answers objectively testify to the inconsistency of the plaintiff's position as an accountant. Substantiating the arguments about the existence of grounds for the dismissal of the plaintiff, the defendant referred during the consideration of the case to the fact that during the period of work she repeatedly failed to cope with the work assigned to her, while these arguments of the defendant were not confirmed by any objective data. As follows from the materials of the case, during the period of the plaintiff's work, not a single disciplinary sanction was applied to her for improper performance of her labor duties, in 2009 the plaintiff's ETC level was increased for the purpose of remuneration, and memorandums with comments on the plaintiff's unsatisfactory work from the chief accountant to the director of the institution began to appear from 12/25/2013, i.e. shortly before the certification.
3. The invariance of the requirements for the certification procedure
The procedure, conditions, criteria and terms for the certification of employees, determined before the start of the certification, must remain unchanged until the end of the procedure.
The possibility of personal presentation of additional requirements to employees should be excluded, questions and tests should be standardized, bias and / or the provision of preferences on the part of members of the commission and the immediate supervisor should be suppressed.
4. Responsibility for violation of the certification procedure
Taking into account that the actions of the members of the attestation commission that violate the established procedure for conducting attestation are improper performance of labor duties, entail the risk of losing professional staff and the emergence of a labor dispute, in case of violation of the rights of the certified employee, the perpetrators should be brought to disciplinary responsibility.
The employer can also fix this provision in the local regulatory act regulating the certification procedure.
Types of decisions based on the results of certification
Based on the results of the certification in relation to each of the employees being certified, depending on the assessments received during the procedure, the commission may take one of the following decisions:
It should be noted that in relation to civil servants, the law provides for one more decision - it corresponds to the civil service position to be replaced, subject to successful completion of professional retraining or advanced training.
Inconsistency of the employee with the position
In the event that, based on the results of the attestation, the commission establishes that the employee is inconsistent with the position held due to insufficient qualifications, the employment contract may be terminated in accordance with paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.
Paragraph 31 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated states that the conclusions of the attestation commission on the business qualities of the employee are subject to evaluation in conjunction with other evidence in the case. Thus, in order for the dismissal on this basis to be recognized as legal, it is necessary that the documents submitted to the certification commission and confirming the lack of qualifications of the employee contain objective and reliable information. These can be certificates or memorandums of non-compliance by the employee with labor standards without good reason, certificates of marriage, protocols on untimely or poor-quality performance of tasks by the employee and violations and mistakes made by the employee in the process of work.
If the court finds that the content of the minutes of the meeting of the certification commission in conjunction with other evidence submitted by the employer does not provide grounds for confirming the fact that the employee does not comply with the position held, then the dismissal cannot be recognized as legal and justified and the employee is subject to reinstatement in the previous job (for example, the Appeal ruling Omsk Regional Court dated April 22, 2015 in case No.).
It should be borne in mind that if the employer believes that the employee is not suitable for the position due to his lack of education and / or qualifications, then the employer must have weighty and reasonable evidence to support this position. So, for example, in the Appeal ruling of the Moscow City Court dated February 24, 2015 in case No., according to which the dismissal of an employee under paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation was declared illegal, the following is indicated:
“Objecting to the claim, the defendant, during the consideration of the case, referred to the fact that G. does not have a special education and does not correspond in terms of his qualifications to the position of an accountant. "***", a person who has a secondary vocational (economic) education without presenting requirements for work experience or special training according to the established program and at least 3 years of work experience in accounting and control is appointed to the position of an accountant in this area. corresponds to the Qualification Handbook for the positions of managers, specialists and other employees, approved by Decree of the Ministry of Labor of the Russian Federation of August 21, 1998 No. 37. As follows from the case file, in 1997 G. graduated from accounting courses, i.e. she had special training according to the established program. certification, her work experience in the specialty of an accountant amounted to 13 years 04 months 04 days, i.e. in terms of its qualification characteristics, G. met the requirements."
In the event that, based on the results of the attestation, the commission revealed a discrepancy between the employee and the position held or the work performed due to insufficient qualifications, and the employer plans to terminate the employment relationship, he is obliged to offer the employee another job he has in the area as a vacant position or a job corresponding to the qualifications of the employee, as well as a vacant lower position or lower-paid work that an employee can perform taking into account his state of health (part 3 of article 81 of the Labor Code of the Russian Federation). The employer is obliged to offer vacancies in other localities only if it is provided for by the collective agreement, agreements, labor contract.
The proposal of the employer, as well as the consent of the employee or his refusal to be transferred to another position, must be made in writing. The text of the notification of the employee about the transfer to another job due to his inconsistency with the position held may be as follows:
"Dear Ivan Ivanovich!
We hereby inform you that based on the results of the attestation of employees of "____" _______ 20___ at TeKa Group LLC, your inconsistency with the position held by ____________ was established, and by order dated "____" _______ 20___ No. _____, the possibility of your transfer with your consent to another position was determined.
We provide you with a list of vacant positions to which transfer is possible, and notify you that in case of refusal to transfer, the employment contract may be terminated in accordance with clause 3 of part one of Article 81 of the Labor Code of the Russian Federation:
1. ________ - official salary of 30,000 rubles;
2. ________ - official salary of 25,000 rubles;
3. ________ - official salary of 20,000 rubles.
If you agree with the transfer, please indicate the desired position, in case of refusal to transfer, inform about it by putting the appropriate mark in this notice.
I agree with the transfer to the position ________ with an official salary of ________ rubles ________ (employee's signature)
I refuse to transfer to the proposed positions ________ (employee's signature)"
If the employee agrees with the transfer to another position, an additional agreement is drawn up to the employment contract and the employer issues an order to transfer the employee to another job, and appropriate entries are made in the work book and personal card of the employee form T-2.
If the employee does not agree with the transfer to another job and / or the employer does not have corresponding vacancies, the employer may decide to terminate the employment contract. In this case, an appropriate order is issued and an entry is made in the work book with the following content:
"The employment contract was terminated due to the inconsistency of the employee with the position held due to insufficient qualifications, confirmed by the results of certification, paragraph 3 of the first part of Article 81 of the Labor Code of the Russian Federation"
It should be borne in mind that the employment contract on this basis cannot be terminated during the period of temporary disability of the employee or during his stay on vacation (part 6 of article 81 of the Labor Code of the Russian Federation), as well as with pregnant women and women with children under the age of three years, single mothers raising a child under the age of 14 (a disabled child under 18), other persons raising these children without a mother, a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of 18 or the sole the breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (another legal representative of the child) is not in an employment relationship. (Article 261 of the Labor Code of the Russian Federation).
If an employee who is a member of a trade union is to be dismissed on the indicated grounds, it is necessary to take into account the elected body of the primary trade union organization in the manner prescribed by Article 373 of the Labor Code of the Russian Federation - for example, in the Ruling of the Moscow City Court dated 30.03. committee it follows that a representative was delegated to the attestation commission from the trade union committee, however, his signature is not seen from the attestation sheet. Also, the employer did not provide evidence that an additional consultation was held with the elected body of the primary trade union organization, taking into account the fact that the elected body of the primary trade union organization expressed disagreement with the alleged dismissal of the employee by the defendant. In connection with the said court, it was decided to recognize the dismissal of the employee as illegal and reinstate him at work.
Termination of an employment contract with employees under the age of 18 is possible subject to the general procedure and only with the consent of the state labor inspectorate and the commission on minors and the protection of their rights.
Signing of documents by an authorized person
It should be borne in mind that all documents, including local regulations, notices and other documents, must be signed by persons having. For example, the Ruling of the Moscow Regional Court dated June 1, 2010 in case No. 33-8370 states the following:
"if a local normative act is approved not by the employer, who should be considered the general director of the organization, but by another person, it is necessary to establish whether this person, in this case the director of the branch, has the authority to adopt such an act. As seen from the case file, the company did not develop and did not adopted a local regulatory act on the procedure for attestation of workers. The order for the branch approved the regulation on the procedure for attestation of workers of the motorcade. The motorcade is not a legal entity, acts in accordance with the regulation, which provides for the powers of the director of the branch, however, such powers as the development, adoption and approval local regulations among them are not provided.There are no such powers in the power of attorney issued to the director of the branch on behalf of the general director of the organization.Thus, the director of the branch was not entitled to issue an order approving the regulation on certification.Based on the foregoing, the dismissal of the employee otnik according to paragraph 3 of the first part of Article 81 of the Labor Code of the Russian Federation was declared illegal.
Dismissal of a civil servant
As stated in the Bulletin of Judicial Practice of the Omsk Regional Court No. 3 (44) for 2010, according to the rules of part 17 of Article 48 of the Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation" when a civil servant refuses from professional retraining, advanced training or transfer to another position, the representative of the employer has the right to release the civil servant from the position to be replaced and dismiss him from the civil service. From the literal content of the above rule of law, it follows that it does not provide for the possibility of dismissal of an employee directly based on the results of certification.
The list of decisions that can be taken by an employer in relation to a civil servant based on the results of attestation is defined in part 16 of article 48 of the Federal Law of July 27, 2004 No. 79-FZ, which provides that a civil servant:
1) is subject to inclusion in the personnel reserve to fill a vacant position in the civil service in the order of promotion;
3) is demoted in the civil service and is subject to exclusion from the personnel reserve if he is in it.
Illegal actions during certification
Many employers expect to carry out certification in order to get rid of objectionable employees, regardless of the actual performance of their labor activity. However, it is hardly possible to solve the problem of subjective hostility by conducting certification, since such actions are illegal, it is almost impossible to hide the real motive for conducting certification, which means that the employer will not be able to avoid problems in the event of a labor dispute.
To influence the decision of the commission in order to underestimate the final assessment of the results of the work of an employee, not only the employer can use the administrative resource, but also a biased attitude towards the employee on the part of his immediate supervisor.
To avoid this, the employee is given the right to familiarize himself with the review of the immediate supervisor, after which the employee has the right to submit to the certification commission a statement of his disagreement with the review or an explanatory note on the review. Also, the employee can submit additional information about his work to the certification commission, for example, reports on completed tasks, the final results of his activities, written explanations of other employees, and so on.
Often, before certification, an employee is deliberately given instructions that are either obviously impossible to fulfill or do not correspond to his position, profession, qualifications. In order to prevent such violations, the certification commission must make sure that the employee has both an obligation and a real opportunity to perform the work assigned to him.
If such actions are not carried out or such inconsistencies are ignored by the commission, the recognition of the employee as inappropriate for the position held is illegal.
Also quite common violations of the certification procedure are:
As one of the examples of the illegal actions of the employer during the certification of employees, one can cite the wording from the Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No., which states the following:
"Recognizing the results of the attestation of 18.06.2014 as unfounded, the court proceeded from the fact that the materials of the attestation do not contain a reference to the regulatory legal act regulating the procedure for attestation of the Museum's employees (Regulations on the attestation of employees, approved by the Director of the Museum on 25.01.2013); in the attestation sheet and decision dated 06/18/2014 there is no indication of the criteria that guided the attestation commission, assessing the compliance of the plaintiff with the position (work performed); conclusions about gross violations by the plaintiff of labor legislation and instructions for museum activities are not motivated, not supported by objective data; the decision was not made unanimously ( 5 - in favour, 2 - abstained); it is not taken into account that during the period of work at the Museum the petitioner had a number of awards, was awarded diplomas for many years of conscientious work, including the Certificate of Honor of the Ministry of Culture of the RSFSR for her great contribution to the development of culture; not accepted into attention to the fact that the and has a higher education in the specialty "teacher of history and social science" (in 1979 she graduated ... from the State Pedagogical Institute named after. K. Marx), which does not prevent her, in accordance with her job description, from holding a position ... in the historical department of the Museum. Moreover, from the attestation sheet, it is essentially seen that the reason for the negative assessment was not the plaintiff's business qualities, but her conflicting nature and uncompromising nature.
Dismissal if certification was not carried out
The Decree of the Plenum of the Supreme Court of the Russian Federation No. 11 states that the employer is not entitled to terminate the employment contract with the employee in accordance with paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation, if this employee has not been assessed or the certification commission has come to the conclusion that the employee complies with the position held or performed work.
These explanations of the Plenum of the Supreme Court of the Russian Federation are not unfounded, since cases when employees are dismissed under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation without certification are not uncommon.
In particular, such a situation was considered by the St. Petersburg City Court, which, in the cassation ruling dated February 1, 2011 No. 33-424 / 2011, indicated that the employee was dismissed under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation due to inconsistency with the position held, while At the same time, certification for compliance of the plaintiff with the position held or the work performed was not carried out. In justification for the dismissal, the employer referred to the absence of the petitioner's certificate "Nursing in Dentistry". Under these circumstances, the dismissal of the employee was declared illegal.
A similar situation was considered by the St. Petersburg City Court, which, in Ruling No. 4276 dated April 1, 2008, indicated that the dismissal of an employee from his position on the grounds provided for in paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation was carried out by the employer in violation of the procedure established by Article 81 of the Labor Code RF, namely: the insufficient qualification of the employee is not confirmed by the results of certification; Evidence showing that the employee refused to be transferred to another job or the employer did not have the opportunity to transfer the employee with his consent to another job in the same organization is not presented by the employer; the grounds for dismissal are not indicated in the dismissal order, i.e. there is no reference to the documents with the number and date that are the basis for the dismissal, which is a prerequisite for formalizing the dismissal; the employee was not familiar with the dismissal order and also he was not familiar with the internal labor regulations and other local regulations of the employer, including the regulation on the certification of employees. Under these circumstances, the court reasonably issued a decision to reinstate the employee at work.
Another case was considered by the Judicial Collegium for Civil Cases of the Penza Regional Court - Decision dated 12/10/2002 in case No. insufficient qualification of the plaintiff, before his dismissal was not carried out. The certification commission was not created by the employer, the regulation on certification was not developed and approved. The Employer's Tariff and Qualification Commission was not entitled to decide whether the employee complied or did not comply with the position held, in addition, it met in an unauthorized composition. The employer's argument that certification is carried out in the manner prescribed by the rules for organizing, working with personnel at enterprises and institutions of energy production, approved by the President of RAO UES, contradicts Article 11 of the Labor Code of the Russian Federation, in accordance with which the Labor Code of the Russian Federation, laws and other regulatory acts containing labor law norms are binding on the entire territory of the Russian Federation for all employers (legal entities or individuals), regardless of their organizational and legal forms and forms of ownership. Thus, other tests of the knowledge and qualifications of the employee, which were carried out by the employer, cannot be the basis for the dismissal of the employee due to insufficient qualifications, confirmed by the results of the certification.
Given the above, employers should not expect that holding a "fictitious" attestation without complying with all the requirements of the law will make it possible to accomplish the task of parting with an objectionable employee.
Certification in the absence of an employee
Employers should not conduct appraisal in the absence of the employee in cases where there is no conclusive evidence that the employee was notified of the date of the appraisal.
As follows from the Ruling of the Moscow City Court dated 08/03/2010 in case No. 33-23042, when the employer carried out certification, the meeting of the certification commission scheduled for 03/03/2009 was postponed to 03/16/2009 due to the absence of the certified employee. On 03/06/2009, the employer wrote a notice addressed to the employee about the need to arrive on 03/16/2009 for certification. On March 12, 2009, the employer drew up an act stating that the employee refused to receive a notice of certification on March 16, 2009, and on the same day a meeting of the certification commission was held in the absence of the employee, at which the commission decided that the employee of the position held was not corresponds, there is no other available position corresponding to the qualifications of the employee in the institution, therefore, the employee must be dismissed from his position on the basis of paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.
The court, due to the employer's lack of confirmation of the fact that the employee was notified of the ongoing certification, the dismissal of the employee under paragraph 3 of the first part of Article 81 of the Labor Code of the Russian Federation was declared illegal and the employee was reinstated.
Services LLC "TeKa Group"
Employees who are recognized by the results of the certification as not corresponding to their position may not agree with the opinion of the certification commission and the decision of the employer to terminate the employment contract under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.
In the event that an employee dismissed on this basis goes to court, the employer will have to prove the fact of inconsistency with his position or work performed, and this will require flawlessly executed documents that must be prepared during the certification process.
The employer should not expect that he will be able to prepare the necessary documents in preparation for the trial, even if only because many of these documents must contain the signature of the employee, which is not possible to obtain later. Thus, the employer should take the certification procedure as seriously as possible from the very beginning.
In the event that the employer's staff does not have specialists with certification experience, the employer should contact TeKa Group LLC in order to obtain the necessary and organizational assistance on the certification of employees.
Any question that has arisen on this topic, you can discuss on the TeKa Group forum in the "" section.
The inconsistency of the employee with the position held or the work performed due to insufficient qualifications is one of the grounds for terminating the employment contract at the initiative of the employer. The surest way to identify unqualified personnel is to conduct certification.
In labor law, qualification is understood as the level of preparedness, skill, degree of fitness for work in a particular specialty or position, determined by rank, class, rank and other qualification categories. In turn, the lack of qualifications is a discrepancy between the professional training of an employee and his position.
According to the Labor Code, the insufficient qualification of an employee is one of the grounds for an employment contract to be terminated at the initiative of the employer (clause 3, article 81 of the Labor Code of the Russian Federation).
However, you can fire an employee only if he cannot be transferred to another job that matches his qualifications - for example, to a vacant lower position or a lower-paid job that the employee is able to perform taking into account his state of health. Moreover, the transfer of an employee is possible with his written consent. The letter of Rostrud dated April 30, 2008 No. 1028-s also says that it is possible to dismiss an employee for inconsistency with the position held or the work performed due to insufficient qualifications only after certification. Otherwise, the Labor Code does not provide.
In order to avoid possible misunderstandings, a clause on the obligation to undergo certification must be included in the employment contract with the employee.
Aptitude test
Certification is a test of professional knowledge and business qualities of an employee. It is carried out by the employer in order to determine the level of qualification of the employee and his compliance with the position held.
The Labor Code does not limit the range of employees subject to certification. However, the firm can exempt their individual categories from it. The list of persons subject to and not subject to certification, it is advisable to fix in local regulations. For example, persons whose probationary period has not yet expired by the time the certification begins, graduates of educational institutions of primary, secondary and higher professional education, working for the first year at the company, pregnant women, persons employed in unskilled jobs, and others can be exempted from it. . Such guarantees are provided for in paragraph 4 of the Resolution of the State Committee for Science and Technology of the USSR and the USSR State Committee for Labor dated October 5, 1973 No. 470/267 (hereinafter referred to as Resolution No. 470/267). In addition, it is also recommended to include a clause on the obligation to undergo certification in the employment contract with the employee.
The organization independently establishes the frequency of certification. It may differ for different categories of workers. On average, attestation should take place once every three to five years (clause 4 of Decree No. 470/267).
The company also determines the term of its holding independently, based on the number of certified employees and other factors. A period of three to six months is considered optimal.
Certification can be carried out in the form of written testing, interviews, written exams, practical classes, sample making, etc., depending on the specifics of the profession being certified. For employees whose labor functions do not require special knowledge or training, certification is not carried out.
Step by step preparation for certification
Goals and objectives. To begin with, decide what are the goals of certification at your enterprise. It can be conducted to identify training needs, improve ongoing performance, plan for recruitment for future periods for intra-organizational moves, and gather information needed to make a promotion decision.
But the dismissal of employees cannot be the purpose of certification. Its main task is to update the personnel policy, which benefits both the company itself and each of its employees.
Regulations on certification. The Labor Code does not contain recommendations on the development of the Regulations on certification. We advise you to use the provisions of Decree No. 470/267.
The regulation on attestation must be approved by the head of the organization. With the adopted document, it is necessary to familiarize all working employees and each newly hired against signature (part 3 of article 68 of the Labor Code of the Russian Federation).
Registration. The head of the organization decides to conduct certification and draws up an appropriate order. The decision must include the following information:
- dates and place of attestation;
- range of employees subject to certification;
- composition of the attestation commission;
- grounds for certification (if it is extraordinary);
- the procedure for reporting its results.
In the order for certification, it is desirable to fix the duties of employees and the timing of the preparation of documents. In addition, it is necessary to establish the procedure for preparing and submitting to the certification commission information about which of the employees improved their qualifications and when, certification sheets for previous certification, customer and colleagues reviews, and other necessary information.
Certifying commission. Its composition can be anything. It usually includes heads of departments and an employee of the personnel department. If the organization has a trade union, then, according to part 3 of article 82 of the Labor Code, its representative must be a member of the commission. Independent experts can also be included if desired.
Certification schedule. It contains the following information:
- the name of the unit whose employees are certified;
- list of employees subject to certification (their names and positions);
- date, time and place of certification;
- the date of submission of the necessary documents to the attestation commission, indicating the heads of the relevant departments responsible for this;
- positions and names of employees responsible for the training of those being certified.
It is necessary to inform about the timing and schedule of certification at least one month before its start (clause 4 of Decree No. 470/267). The employee should be familiarized with the review (characteristics) submitted to him no later than one week in advance (clause 6 of Resolution No. 470/267).
Carrying out certification.
The course of the meeting and the decisions taken are reflected in the minutes, which are kept by the secretary of the commission. It is recommended to record the name of the organization and the date of the certification, the list of members of the commission present, the names of the heads of departments in which the certified persons work, and other invitees, indicating the position and place of work (for third-party organizations).
The following reflects the name, position and place of work (division) of the person being certified, the questions asked and brief answers to them, suggestions and recommendations made by the members of the commission on the candidacy of the person being certified, assessment of his activities, voting results (the number of votes "for" and "against").
The minutes of the meeting of the attestation commission are signed by the chairman, secretary and members of the commission. It is stored in the worker's file. When conducting testing in the protocol, you must indicate its results and attach tests with the answers of the person being certified.
The decision on the conformity or non-compliance of the employee with the position held. Based on the results of certification, it is issued by the commission.
As a rule, the Regulation on certification provides for the following types of decisions of the certification commission:
- the employee corresponds to the position;
- the employee does not correspond to the position;
- the employee corresponds to the position held, subject to the recommendations of the attestation commission;
- the employee corresponds to the position held and is recommended for transfer to another higher or higher paid position.
The attestation commission can also be authorized to make recommendations on rewarding employees for their successes, on changing their working conditions, on improving their skills, etc.
The decision taken by the commission is reflected in the certification sheet, with which the employee should be familiarized against signature. At the same time, he should be given the opportunity to express his opinion on the results of the certification and appeal against them if he does not agree with the conclusions of the commission. In addition, information about the results of the certification carried out is entered in section IV of the employee's personal card in the form No. T-2 (approved by the Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1).
Upon completion of certification, all materials must be transferred to the head of the organization within the time limits established by the Regulations on certification. It makes one of the following decisions:
- keep the terms of the employment contract;
- maintain the terms of the employment contract and stimulate the employee;
- to keep the terms of the employment contract with the imposition of an additional obligation on the employee - to eliminate the comments of the certification commission and within a year from the date of the decision to undergo re-certification;
- change the content of the employment contract in terms of the employee's labor function;
- terminate the employment contract under paragraph 3 of part 1 of Article 81 of the Labor Code.
In addition, on the basis of a decision prepared by the certification commission, the head issues an order on measures following the results of certification. It analyzes the results, approves measures to improve work with personnel, to implement the recommendations of the certification commission, as well as to conduct the next certification.
Paragraph 12 of Decree No. 470/267 states that the manager can decide to transfer an employee who, according to the results of the certification, is not suitable for the position held, to another job with his consent, within no more than two months from the date of certification. If the employee cannot be transferred to another position, the head of the organization may terminate the employment contract with him within the same period.
This is the procedure for performance appraisal of personnel. If the employer has violated the procedure for conducting it, established by regulatory legal or local regulations, this is the basis for reinstating the employee dismissed as a result of it.
Personnel certification- one of the most important elements of personnel work, which is a periodic examination of the professional suitability and compliance with the position held by each employee of a certain category. The composition of personnel subject to certification is established in each branch of activity according to the list of positions of managers, specialists and other employees.
The legislation does not oblige all employers without exception to conduct certification of their employees. Neither the Labor Code of the Russian Federation, nor any other normative legal act of an industry-wide and mandatory nature establishes that any employer must periodically check the professional suitability of their employees.
Mandatory certification is only for employees engaged in certain types of activities, which is regulated by special federal laws and regulations.
Mandatory certification is subject to:
State civil servants of the Russian Federation, civil servants of a number of federal executive bodies, civil servants of state authorities of the constituent entities of the Russian Federation, as well as municipal employees of the Russian Federation;
- personnel of organizations of certain branches of economic activity, these are:
- employees carrying out activities related to operational dispatch control in the electric power industry;
- employees whose activities are related to the movement of trains and shunting work on public railways;
- employees responsible for ensuring the safety of navigation;
- employees of hazardous production facilities;
- workers working at chemical weapons storage facilities and chemical weapons destruction facilities;
- aviation personnel;
- workers performing work with sources of ionizing radiation;
- librarians;
- personnel of space infrastructure facilities;
- pedagogical and leading employees of educational institutions;
- heads of unitary enterprises.
In other cases, certification is a voluntary matter - there are no regulatory and legal obstacles to its introduction in organizations. The only thing that the employer and his personnel service must do is to fix the certification rules in the relevant local regulatory act - the Regulations on the certification of the organization's personnel.
The main points of legal significance in the preparation of the Regulations on personnel certification
Since methods for assessing employees should be developed by personnel departments, taking into account the specifics of the organization's activities, the qualifications of its personnel, and other managerial factors, it would be reckless to give universal recommendations. Therefore, let us dwell on the main points of the local Regulations on personnel certification, which are of legal significance and are common to any certification procedure, regardless of how the professional suitability of employees is assessed:
1. Workers subject to and not subject to certification
The Regulations being developed should clearly define the categories of employees subject to certification, and categories not subject to certification.
Certification in order to establish the compliance of employees with their positions, their professional suitability is carried out in relation to such a group of employees as employees. The definition of employees is understood as a social group of workers engaged mainly in mental (non-physical) labor, as a rule, exercising leadership, making and developing managerial decisions, and preparing information.
workers- a social group of workers engaged mainly in physical labor, which consists in the creation of a material product, as well as in the technical and production support of the organization's activities - are not subject to this certification.
What categories of employees managers, specialists or technical performers- must undergo certification, the personnel service in each organization decides individually. So, in a number of organizations, technical performers are not included in the personnel subject to certification.
Not subject to certification:
- employees who have worked in their position for less than 1 year, tk. they do not have proper work experience and the conclusions drawn about their business qualities will be biased;
- pregnant women, in this case, even if a discrepancy is established, they still cannot be fired, based on the prohibition established by Article 261 of the Labor Code of the Russian Federation;
- women with children under the age of 3 and on parental leave; their certification is carried out no earlier than one year after leaving the vacation, tk. firstly, during parental leave, an employee may lose his qualifications and a reasonable period for its restoration is 1 year, and, secondly, the establishment of a discrepancy with the position held will still not allow terminating labor relations with the employee under paragraph 3 of Article 81 of the Labor Code RF.
The list of employees not subject to certification may include:
- employees working on the terms of internal combination;
- employees with whom they have been concluded for a period of up to 1-2 years;
- employees who have undergone advanced training or professional retraining within a year from the date of completion of advanced training or retraining;
- employees appointed to a position by competition within 1 year from the date of appointment;
- young specialists (it should be clarified that young specialists are not subject to certification during the period of compulsory work for their intended purpose after graduation. Since there is almost no such practice now, the issue of certification of yesterday's students is decided by the employer at its discretion), etc.
2. Frequency and timing of certification
According to the Regulations on the procedure for attestation of managers, engineering and technical workers and other specialists of enterprises and organizations in industry, construction, agriculture, transport and communications, approved. by the Decree of the State Committee for Labor of the USSR and the State Committee for Science and Technology of the USSR dated 05.10.1973 No. 267/470 (the last changes were made to it in 1986, and at the moment it has not been canceled and not recognized as invalid), certification is carried out periodically, 1 time in 3-5 years.
Therefore, in the local act of the organization - the Regulations on the certification of personnel - a specific frequency should be prescribed: certification of employees is carried out 1 time in 3 years or 1 time in 4 years, or the frequency of certification (for example, “Not more than 1 time in 3 years ").
When establishing the frequency of certification, it is desirable to determine the start date for this period - from the moment the head of the order (instruction) issues certification or from the date specified in the order (instruction).
Next, you should determine the period that is allotted for certification before establishing the results (from the beginning). This period is set by each organization independently, based on the number of staff, the composition of the certification commission and the number of these commissions, the qualification composition of those being certified, etc.
From experience, a period of 3-6 months is considered optimal. During this period, the certification of personnel must be fully carried out.
If the organization is very large, then in order to be able to meet within a reasonable time, stage-by-stage certification is provided, i.e. distribution of the total number of certified by years within the established frequency.
In the event that it is difficult to determine the terms of the certification in the local Regulations on the certification of personnel for any reason, then they can be determined in the order (instruction) on the certification. The possibility of establishing the timing of certification by order (instruction) should be recorded in the local act - the Regulations.
3. Informing employees about the certification
In the local act - the Regulation - it is necessary to prescribe about:
- mandatory communication to the employee at least 1 month before the start of the certification of information on the timing of the certification, certification schedule;
- at least 1 week before certification - familiarization of the employee with the feedback (characteristics) submitted to him;
- with what other documents fixing the passage of attestation, the employee must or can be familiarized.
The employee should also be given the opportunity to familiarize himself with the final certification documents, up to the issuance of appropriate copies.
4. Types and purposes of certification
Certification can be:
- next scheduled: this is an attestation that is carried out on time, it is considered the next scheduled attestation;
- early: certification conducted during the inter-certification period.
The reasons for early certification may be:
- nomination of a candidate for a higher position, if a vacant position has formed;
- significant omissions or miscalculations in work or the commission of a disciplinary offense, the essence of which is improper, poor-quality performance of official duties;
Omissions in the work of the entire unit can be named as the basis for the certification of all employees of the unit:
- the request of the employee himself, if he wants to get a higher position or declare himself as a candidate for promotion;
- the initiative of the head of the organization or other managerial person to check the compliance of an employee hired a year ago who has not passed the next certification; in this case, we are talking about an employee who at the time of the certification did not have the necessary certification experience and was not subject to certification, but the need to check the compliance of his position remained;
- obtaining an assessment during certification "conditionally certified".
Taking into account possible disputes, the Regulations should describe in detail the rules for conducting early certification, including the grounds for its conduct and the procedure itself.
Goals of certification
Main:
- Evaluation of the results of the employee's work.
- Determination of suitability for their position.
- Identification of shortcomings in the level of training.
- Drawing up an employee development plan.
Additional:
- Checking compatibility with the team (ability to work in a team, loyalty to the organization, employer and management).
- Checking the motivation to work, to work in this position.
- Determining career development prospects for an employee.
General:
- Improving personnel management and increasing the efficiency of personnel work.
- Increasing responsibility and executive discipline.
Specific:
- Determination of the circle of employees and the list of positions subject to dismissal or reduction.
- Improving the moral and psychological climate in the organization.
5. Regulations for the work of the attestation commission
In order to avoid conflicts and disputes with employees, the Regulations should define in detail the scheme of work of the certification commission:
- the procedure for holding meetings of the commission;
- rules for making decisions by the commission and their execution;
- rules for the preparation by the commission of recommendations to employees.
It is important to know!
Part three of Article 81 of the Labor Code of the Russian Federation stipulates that when carrying out certification, which may serve as a basis for the dismissal of employees in accordance with subparagraph "b" of paragraph 3 of Article 81 of the Code, a member of the commission from the relevant elected trade union body must be included in the certification commission .
Therefore, in the Regulation it is necessary to determine the form of participation of a trade union representative in the certification.
The inclusion of a trade union representative in the attestation commission is mandatory only if the purpose of the attestation is only to verify the suitability of the position held and, as a result, dismissal of employees is possible. If attestation has other goals (formation of a personnel reserve, increase in wage categories, etc.) and its results do not provide for the possibility of dismissal, then the inclusion of a trade union member in the attestation commission is not necessary.
6. Results of certification
The Regulations should contain the wording of the certification results: "corresponds to the position" and "does not fit the position" . In some cases, a third assessment is provided - or “corresponds to the position held, subject to the recommendations of the attestation commission” . This intermediate assessment is very important, as it allows the personnel service to influence the employee. However, the actions of the employer when using it must be thoughtful.
Other wording of attestation results, such as "certified", "not certified", "good" etc. nothing more than creativity and can lead not only to internal conflicts with the employee, but further to litigation, where the unprofessionalism of the employer's personnel service will be noted.
Evaluation of an employee "conditionally corresponds to the position held" , does not allow the employer to make a decision on the dismissal of the employee until he checks whether the employee has complied with the recommendations of the certification commission. This means re-assessment of this employee, for example, in a year. In this case, it is necessary to prescribe in the Regulations how the extraordinary certification will be carried out, make a cyclic reference to the procedure for establishing the results of the next certification and provide that the second time the certification commission can give only two marks: corresponds or does not correspond to the position held.
7. Registration of final certification documents
It is very important that the Regulation clearly defines the list of documents generated during certification.
Based on the decision of the certification commission, a report on the certification is prepared, in which the personnel service informs the head of the organization of the results of the certification: how many employees correspond to their positions, how many do not.
On the basis of these documents, the head of the organization issues a general order (instruction) on measures following the results of certification, in which he sets the task for the personnel service to solve all the questions at once:
- on transfers to higher positions within the framework of local regulation on the personnel reserve or by individual decision of the head of the organization;
- on the assignment of a category;
- about increasing salaries, establishing allowances;
- on the change or cancellation of allowances;
- on lowering the qualification category;
- on employee incentives;
- on consideration of the issue of transfers or dismissal of employees who do not correspond to their position.
8. Deadlines for the completion of certification results
The Regulations must necessarily define the terms within which the employer has the right to make a decision related to the continuation, change or termination of labor relations with employees. This will help to avoid further challenging the decision of the head of the organization in relation to the employee in court.
Clause 12 of the Regulations of 1973 establishes that the head of the organization, taking into account the recommendations of the certification commissions, in the prescribed manner, applies appropriate incentive measures to employees and, in appropriate cases, within a period of not more than 2 months from the date of certification, may decide to transfer an employee recognized according to to the results of certification that do not correspond to the position held, to another job with his consent.
If it is impossible to transfer an employee with his consent to another job, the head of the organization may, within the same period, in accordance with the established procedure, terminate with him in accordance with the law. (See subparagraph "b" of paragraph 3 of Article 81 of the Labor Code of the Russian Federation).
Further, in the same paragraph 2 of the Regulations of 1973, it is said that after a 2-month period, the transfer of an employee to another job or termination of an employment contract with him based on the results of this certification is not allowed.
In addition, it is necessary to link the period in which a decision can be made to transfer or dismiss an employee with the period of certification (for example, clearly establish that the 2-month period is counted from the moment the head of the organization approves the results of the certification).
9. Measures of influence on employees
!Know that in the Regulations on personnel certification, among the measures of influence on employees, disciplinary sanctions cannot be provided. This is unacceptable, since the discrepancy to the position held does not imply the fault of the employee in his lack of sufficient qualifications. In the event of a dispute and its consideration in court, the actions of the employer to bring employees to disciplinary responsibility will be recognized as unlawful, and the Regulations on personnel certification will be declared invalid on the basis of Article 8 of the Labor Code of the Russian Federation.
10. The procedure for changing and terminating labor relations based on the results of certification
The procedure for making a decision on the transfer of an employee, on changing the essential terms of the employment contract and dismissal should be detailed in the Regulations on personnel certification. It is also necessary to determine not only the mechanisms for selecting positions, the transfer to which can be offered to an employee who is recognized as inappropriate for the position held, but also the time frame in which such an offer must be made to the employee, the form of the offer, the procedure for issuing the consent or refusal of the employee to transfer.
In the event of disputes between the employer and the employee and their resolution in court, the employer will have the opportunity to justify the legality of their actions.
The following should also be noted:
- Evaluation should not be combined with criticism.
- You can not tell the employee at the same time about the results of certification and about remuneration.
- It is imperative to explain to employees that personnel certification is not a punitive tool for dismissing objectionable or “wrong” specialists; it is designed to help not only employers, but also the employees themselves to find weaknesses in their professional training and eliminate them.
Based on the results of the certification, an individual development plan for each specialist is built, providing for the improvement of his qualifications (seminars, trainings, internships, consultations) and his career growth.
If necessary, the Regulations can add the necessary chapters and applications.
The form of the order for certification
The form of the schedule for certification
Form of certification sheet of an employee
The form of the certification sheet of the employee during re-certification
Supervisor feedback form
Worker report form
Form of decision of the attestation commission
The form of the protocol of the attestation commission
An indicative list of indicators for assessing the qualifications of department heads
The assessment of the service qualification of the certified employee is based on the conclusion about his compliance with the provisions, determining the share of his participation in solving the tasks set, the complexity of the work he performs, its effectiveness:
Education;
Work experience in the specialty;
professional competence;
Knowledge of the necessary regulatory legal acts;
Acquaintance with domestic and foreign experience in this field;
Ability to make quick decisions to achieve set goals;
The quality of the finished work;
Ability to adapt to a new situation and find new approaches to solving emerging problems;
Timeliness of performance of official duties;
Responsibility for the results of work;
Intensity of work (the ability to cope with a significant amount of work in a limited time);
Ability to work with documents;
The ability to predict and plan, organize, predict and analyze their work or the work of subordinates;
Ability in a short time to master technical means that ensure an increase in labor productivity and quality of work;
Production ethics and communication style;
Ability to be creative, entrepreneurial;
Participation in commercial activities;
Independence;
The ability for self-esteem.
Hello! In this article we will talk about the certification of personnel in the organization.
Today you will learn:
- What is attestation called and for what purposes it is carried out;
- Who needs to be certified and who does not;
- How to validate properly
Personnel is the main asset of any organization. How well employees perform their work depends on whether the company will achieve its goals.
In order to ensure that labor productivity does not decrease over time, the knowledge and skills of employees are regularly assessed.
What does the code say
Legislation regulates many provisions on personnel management. Employee appraisal is no exception. The Labor Code of the Russian Federation says that an employer may part with an employee who does not correspond to his position or has insufficient qualifications.
The rest of the attestation mechanism is regulated by other laws and regulations.
Why spend
Carrying out certification of workers does not mean at all that those who did not pass it will be fired.
The main goal of certification - analyze the work, identify which places are weak, how to eliminate these problems and increase the efficiency of the company.
In addition to these goals, there are additional ones:
- Check how motivated employees are (including for career growth);
- Determine the vector by which the company will develop in the future;
- Increase the level of discipline in the team;
- Check the compliance of the company with the corporate culture.
Often, such a check reveals that the state needs additional specialists, or it is necessary to organize training courses for existing employees.
As a result, certification can help:
- In identifying staffing problems;
- In revising the level of wages;
- Form a reserve of personnel;
- In assessing the effectiveness of the company.
Who is not eligible
- Women who are pregnant;
- Individuals who have been with the organization for less than 12 months;
- Persons who have young children;
- Part-time workers and persons who work under fixed-term contracts (in some cases);
- Those workers who have reached the age of sixty.
Who is subject to mandatory verification
- Government civil servants;
- Municipal employees;
- Railway workers;
- Workers in the electric power industry;
- Persons ensuring the safety of navigation;
- Aviation personnel;
- Education workers;
- Those who work at high-risk production facilities;
- Librarians;
- The management team of a unitary enterprise;
- Persons working with ionizing radiation;
- Persons working in enterprises related to the storage and destruction of chemical weapons.
Terms of certification of employees
The standard terms for certification are once every 3-5 years. The regulation on the certification of employees necessarily fixes the frequency of its implementation.
In addition, extraordinary certification of an employee, as well as early certification, can be carried out.
Certification can last from three months to six months, and employees are notified of the conduct 1 month before the start.
The main types of personnel certification
There are several types of certification.
We will list and give a brief description of the main ones:
- Another is mandatory for all employees. Frequency: 1 time in 2 years for senior positions, 1 time in 3 years for the rest.
- When moving up the career ladder - reveals how the employee is ready to take a higher position and perform new duties.
- At the end of the trial period- is carried out to find out how the employee adapted to the new place.
- When moving to another department- carried out in cases where responsibilities vary greatly.
Personnel certification is carried out regularly, and the list of those positions that need to be certified is compiled by the head of the organization.
Employee appraisal methods
There are many certification methods, but only a few are used in practice, since for the most part they are derivatives of each other.
Classification method.
The selection of employees is carried out according to criteria that are approved in advance. The merits and achievements of each in the performance of work are taken into account.
ranking method.
It consists in the arrangement of employees according to their merits or according to their ability to perform a certain job. Although the ranking can be carried out according to other criteria.
Evaluation scale.
This technique is most often used in certification. A list is taken as the basis, in which personality characteristics are listed, and a five-point scale is placed opposite each. Then the manager, using this scale, notes how each characteristic is inherent in employees.
Open certification.
The technique is relatively new. It was introduced because the rating scale system was not effective enough. Instead of scoring, it is enough to use a written or oral description of the employee.
Attestation stages
Before conducting certification, you need to clearly understand what exactly you want to install and test. In addition, if the team is rather big, it is worth developing a plan in which it is delimited who, at what time, will be busy with the passage.
We will briefly describe the main stages of this procedure in order to have the most complete picture of it.
Stage number 1.
First, you decide which metrics you want to measure. Then you decide which methods you will use when checking. As soon as the methodology is chosen, one of the departments of the company or an entire structural unit can be tested as an experiment.
The criteria by which the evaluation will be carried out are agreed in advance.
Stage number 2.
At this stage, normative documentation is issued and materials for the procedure are prepared. If certification has not been carried out in the company before, it is worth issuing an order to conduct it, collecting the necessary materials, questionnaires, employee testing results, and so on.
All documentation is provided to the Secretary of the Attestation Commission, who compiles the evaluation tables.
Stage number 3.
At this stage, employees fill out reports on the work they have done, and the manager fills out a table that indicates various criteria. Each criterion is marked with a score.
Stage number 4.
The commission conducts a discussion of each grade. The scores are then summed up and compared with the requirements for a particular position. The higher the score in the end, the higher position the certified employee can take.
Stage number 5.
This stage is key.
If the employee who is being checked at the moment is absent from the workplace, it is impossible to determine in absentia how professional he is.
If the employee knew about the certification and his signature is on the notification, but he ignored it, they draw up an act stating that the employee did not pass the certification.
Summing up the results of its work, the commission draws up a report in which it evaluates the professional level of the team. All documentation that the commission has prepared is certified by all members of the commission.
Stage number 6.
The Commission organizes the results obtained. Tables are compiled, recommendations are made to the management on the implementation of personnel changes.
Stage number 7.
The results of the assessment must be communicated to the entire team. With those employees whose position in the organization will change, the manager personally conducts a conversation.
All results are stored in the personnel department, they can be used in solving various issues with personnel.
In our conversation, we often mentioned the term "attestation commission". Therefore, we will clarify who is included in its composition.
Who is on the commission
Its composition can be called standard:
- Chairman and his deputy;
- Secretary;
- Several members of the committee.
Based on the existing judicial practice, the commission should include the chairman of the trade union organization, if one operates at the enterprise.
Example. There are cases when an employee was fired who did not pass the certification by decision of the commission. But at the same time, the chairman of the trade union was not among the members of the commission. As a result, the court sided with the dismissed employee and reinstated him in his position, and the dismissal was declared illegal.
Forms of certification
To get an effective result, experts recommend using the following forms:
Collegiate interview.
The commission considers all materials and talks with each employee. At the same time, the atmosphere should be calm, friendly, so that a person is not nervous and can conduct a dialogue with members of the commission.
It happens that it is difficult for an employee to give an answer to a question, in this case you should not put pressure and demand a mandatory answer. The task of the commission is to identify the problem, and not to make the employee shake in horror.
Interview on an individual basis.
It is most often carried out by the immediate supervisor. He explains to the employee how the certification is carried out, warns about the consequences of non-attendance, and then prepares a review of his work.
Written testing.
In fact, it is considered the most objective form. Questions for attestation of an employee are developed here in accordance with the qualifications and position that he occupies.
Initially, the number of correct answers is set, which will indicate that the certification has been passed.
Test questions should be updated over time.
Commission decision
Based on the results of the attestation of employees, the commission may make a decision on the compliance of the employee with the position he occupies, on non-compliance, on transfer to a higher position, on inclusion in the personnel reserve.
The most common mistakes
The main mistake is the incorrect setting of goals and objectives for the evaluation of employees. If this procedure is carried out only in order to dismiss objectionable employees, all the positive aspects of certification are simply crossed out.
Another mistake is the low level of awareness among employees. If certification is carried out for the first time, it is better to warn about it more than one month in advance. It is also recommended to explain to people why this is done, how the procedure takes place. Otherwise, you risk getting a nervous atmosphere in the team, which definitely does not add efficiency to the work.
What other mistakes are made?
Employees are compared to each other.
It definitely won't end well. You need to compare the performance of the employee with the standards of the company, not people.
A different approach to people who do the same job.
Often the requirements for employees with the same responsibilities are different. This is due both to the personal sympathy of the management, and good intentions: different people can do the same job in different ways. The main thing is never to lose objectivity. Therefore, it is better to include in the commission people with an unbiased point of view, those who are not interested in this or that result of certification.
Use of a limited range of estimates.
If we operate only with the criteria of "bad-good", it is unrealistic to make an objective assessment of the employee's activities. It will not be possible to divide employees into equally professional and equally unprofessional. This is a dead end approach.
You need to evaluate according to a wider range of criteria. In some European countries, the employee performance rating scale consists of 100 points. This allows you to make the most informed decision.
Prejudice attitude.
Agree that often in the team there are certain stereotypes in relation to any person. But it is much worse when one of the commission members demonstrates his bias.
The approach must be adequate, and decisions must be made based on professional standards, not personal judgments.
During the procedure, requirements suddenly change.
Although people are warned about the test in advance, rumors still cannot be avoided. At every mention of certification, people get nervous, lose their ability to work, in addition, they begin to conflict with each other.
Don't escalate the situation. Explain everything to employees in detail, objectively. Do not jerk them, do not change requirements suddenly. Otherwise, people will assume that everything is done purposefully so that they show worse results.
It is unlikely that after such stress, the authorities will be treated with respect.
How to conduct certification not only correctly, but also effectively, we will discuss further.
When the actions of the commission are illegal
Some managers carry out certification to get rid of a particular employee who has suddenly become objectionable. At the same time, no one will take into account his real results of labor, the goal is.
Every employer must remember that solving the problem of subjective attitude towards a person in this way is against the law.
Another variant of misconduct is this: shortly before the procedure, the employee is given a task that he will not be able to complete, because it is initially impossible, since it does not correspond to the qualifications of the employee.
In order to prevent such violations, the members of the commission must make sure that the employees can actually perform the assigned task.
There are other types of violations, revealing which, the results of certification can be challenged:
- Violation of the deadlines;
- The deadlines for notifying employees about the certification are violated;
- The employee was not familiar with the results;
- They checked an employee belonging to the category of persons not subject to certification;
- The order of the procedure itself was violated;
- The commission did not include specialists from the industry in which the company operates.
Based on the practice of the courts, we can say that a "fictitious" attestation will not allow an unscrupulous manager to get rid of an annoying employee. The requirements of the law must be followed.
Include specialists in various fields in the commission so that the procedure goes better.
Example. The company R. held certification of personnel. Based on its results, it was decided to transfer legal adviser A. to a position that is paid lower. Disagreeing with this decision, A. wrote a statement addressed to the head of the company, in which he indicated that there was not a single lawyer in the attestation commission. Consequently, the decision to transfer was made by incompetent people.
The head of the company, having familiarized himself with all the materials, considered A.'s arguments justified and the employee continued to work in his previous position.
Despite the fact that the law stipulates cases when the procedure can be carried out without the presence of an employee, it is better not to do this. Thus, the risk of a conflict situation will decrease, and it will also be possible to avoid contesting the results and litigation.
If you are interested in really high-quality results, entrust the procedure to professionals. Where to go, we will tell briefly.
| No. p / p | Company | Characteristic |
| 1 | Hermes | The company has been operating for over 5 years. The company is engaged in legal support of the certification process and not only. The company cooperates with any region of the Russian Federation |
| 2 | There are frames! | Company with 11 years of experience. It has offices in several cities. During certification, the company's specialists use not only the most well-known methods, but also copyright |
| 3 | HR Practice | This company is an old-timer, more than 20 years old. The main office is in St. Petersburg, but cooperation is possible with any region, as well as with other countries. Services are also provided remotely. |
Conclusion
So, now we have talked about the most important points regarding the appraisal of personnel. If the procedure was carried out in full compliance with the requirements of the law, it will make it possible to make the necessary personnel decisions, enlist the support of the law, dismissal or demotion of the employee.
I would also like to wish that only talented, highly qualified employees work in any company and that no one was required to be fired or transferred to low-paid jobs.
E.Yu. Zabramnaya, lawyer, Ph.D. n.
We certify employees for professional suitability
How to do it right, so that later the certification results are not challenged
We tell the manager
Certification should be carried out if the company plans to reduce and you need to understand which of the employees to keep at work, and who to transfer or fire(that is, who is more qualified and who is less )Art. 179 Labor Code of the Russian Federation. Even if this is already obvious, the employer will not interfere with the relevant evidence in case the laid-off employee appeals the dismissal in court.
Often the reason for the performance appraisal is the desire to dismiss an employee who works very badly, but at the same time does not want to be transferred to another, less qualified job and does not leave the company himself. But sometimes the certification of employees is carried out in order to figure out what prevents subordinates from working effectively, what trainings, refresher courses, etc. they need.
For whatever reasons, this procedure is organized for you, if the company does not have a lawyer and a personnel officer, then an accountant can entrust the execution of documents.
We will tell you what you need to consider in order to competently organize certification and correctly draw up personnel decisions based on its results. And in the rubric you will find samples of the necessary documents.
First of all - the position on certification
We warn the head
If a dismiss an employee as a result of some other verification than certification, then through the court he can be restored to work e Determination of the Supreme Court of the Russian Federation dated 06/04/2004 No. 5-В03-82;. In addition, the company will be obliged to pay him a period of forced absenteeism and, possibly, compensate for morale. d Art. 394, Art. 237 of the Labor Code of the Russian Federation.
If you have an ordinary commercial organization, then the certification procedure for your employees is not regulated by any special law or by-laws (as, for example, for civil servants, employees of the Fire Service of the Ministry of Emergency Situations of Russia and Order of the Ministry of Emergency Situations of Russia dated January 16, 2003 No. 20 or organizations supervised by Rostekhnadzor at Order of Rostekhnadzor dated January 29, 2007 No. 37). This does not mean that certification cannot be carried out. You just need to accept your local regulation - the regulation on employee certification in Art. 8 of the Labor Code of the Russian Federation, art. 81 of the Labor Code of the Russian Federation. Without it, it is impossible to make any decisions based on its results, including the dismissal of employees. I p. 3, part 1, part 2, art. 81 of the Labor Code of the Russian Federation;.
Remember, certification is single procedure, allowing to dismiss an employee due to inconsistency with the position held and p. 3 h. 1 art. 81 of the Labor Code of the Russian Federation. No other test of knowledge and qualifications will replace it. And no other body, except for the attestation commission, can recognize an employee as "professional unsuitable » Determination of the Judicial Collegium for Civil Cases of the Penza Regional Court dated December 10, 2002 No. 33-2069.
From reputable sources
Head of the Legal Department of the Federal Service for Labor and Employment
“The procedure for attestation of employees is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of the employee in Part 2 Art. 81 of the Labor Code of the Russian Federation.
The need for such a procedure in relation to employees for whom there are no special regulatory legal acts for passing certification exists if the employer raises (plans to raise) the question of dismissing employees due to inconsistency with their position or work performed due to insufficient qualifications. and p. 3 h. 1 art. 81 of the Labor Code of the Russian Federation” .
What should be taken into account when developing a local regulation on certification?
The mentioned Soviet Regulations can be found: section "Legislation" of the ConsultantPlus system (information bank "Version Prof")When developing a local regulation on certification, take as a basis the old Soviet Regulations on the procedure for conducting certification and Regulations on the procedure for certification ... approved. Decree of the State Committee for Science and Technology of the USSR No. 470, Goskomtrud of the USSR No. 267 dated 05.10.73 (hereinafter referred to as the Soviet Regulation). Despite the antiquity of this document, it has not been abolished. So, it operates in the part that does not contradict the Labor Code R F Art. 423 of the Labor Code of the Russian Federation. The court is of the same opinion. s ; Determination of the Judicial Collegium for Civil Cases of the Penza Regional Court dated December 10, 2002 No. 33-2069.
Do not prescribe rules in the local attestation regulation that will worsen the position of your employees compared to the Soviet Regulations m Art. 8 Labor Code of the Russian Federation. If you write them down and one of the employees does not pass the certification according to such rules and is fired, then the court will most likely reinstate him t Determination of the Moscow Regional Court dated June 1, 2010 No. 33-8370.
In view of the foregoing, reflect the following points in the local attestation act.
Circle of attested workers
Please note that the next certification cannot be carried out in relation to and clause 4 of the Soviet Regulations; Determination of the Judicial Collegium for Civil Cases of the Penza Regional Court dated December 10, 2002 No. 33-2069:
- pregnant women;
- women with children under the age of one year;
- employees who have worked in their position for less than 1 year.
Plus, remember that along with pregnant women, it is impossible to dismiss a whole group of people with family responsibilities based on negative certification results, but already in accordance with Labor Code R F Art. 261 of the Labor Code of the Russian Federation:
- women with children under the age of 3;
- single mothers raising a child under the age of 14 (a disabled child under the age of 18), and other persons raising such children without a mother.
Frequency of certification
According to the Soviet Regulations, certification can be carried out no more than once every 3 or 5 years, and if this is certification of executives - once every 2 years a clause 4, clause 15 of the Soviet Regulations. If you deviate from this rule, then the court may regard this as a deterioration in the position of the employee in comparison with labor legislation. m Art. 8 Labor Code of the Russian Federation. And if an employee is fired as a result of too frequent certification (for example, annual), then in the event of a labor dispute, this may become one of the grounds for his reinstatement at work. m Determination of the Moscow Regional Court dated June 1, 2010 No. 33-8370.
Please note: the Soviet Regulation regulates only the regular certification, but does not say anything about an extraordinary one. But if you enshrine in a local act the obligation of employees to undergo extraordinary certification in certain cases, then this should not be regarded as a deterioration in their position compared to the law. By the way, the norms on unscheduled certification are quite often prescribed in separate regulatory legal acts on the certification of certain categories of workers. in clause 4.1 of the Regulations on the certification of employees of bodies and institutions of the Prosecutor's Office of the Russian Federation, approved. By order of the Prosecutor General's Office of the Russian Federation of October 30, 1998 No. 74; p. 6 of the Basic Provisions for the Certification of Emergency Services, Emergency Rescue Teams and Rescuers, approved. Decree of the Government of the Russian Federation of November 22, 1997 No. 1479.
The legitimacy of fixing in the local position the norms on extraordinary certification was confirmed to us in Rostrud.
From reputable sources
“Regulations on the procedure for certification of managers, engineering and technical workers and other specialists of enterprises and organizations in industry, construction, agriculture, transport and communications and approved Decree of the State Committee for Science and Technology of the USSR No. 470, Goskomtrud of the USSR No. 267 dated 05.10.73, other acts of the former USSR on this issue can be used as recommendations in the development in the organization of a local regulatory act regulating certification issues.
At the same time, the presence in the local act regulating the issues of certification at a particular employer, provisions on the possibility of conducting extraordinary certification in certain cases (for example, when moving to a higher position) does not conflict with the current legislation.
Rostrud
So, write down in what cases extraordinary certification can be carried out. At a minimum, indicate that it is carried out at the discretion of management after a decision has been made to reduce the number or staff of employees, as well as in the presence of significant omissions in the work of individual employees in Decision of the Supreme Court of the Russian Federation dated February 15, 2001 No. GKPI00-1464.
For the certification order form and the certification schedule form, see:The terms and schedule of certification are approved by the head. They must be brought to the attention of the certified employees no later than one month before the start of the certification. and clause 4 of the Soviet Regulations. Therefore, if you do not notify employees in advance of the upcoming certification, the court may regard this as a violation e Determination of the Moscow Regional Court dated June 1, 2010 No. 33-8370.
Remember that you need to have proof confirming that the employee was notified of the upcoming appraisal.
The procedure for certification
Write down in the local regulation on certification the detailed procedure for its implementation. Including indicate in what form it is carried out (orally or in writing - by performing a test, etc.).
We form an attestation commission
The head, by his order, forms a commission from among the leading employees and highly qualified specialists. Its membership includes t clause 5 of the Soviet Regulations; Art. 82 of the Labor Code of the Russian Federation:
- chairman;
- secretary;
- members of the commission;
- union representative (if you have one).
The last name composition of the attestation commission can also be approved by an order for attestation.
In the attestation regulation, do not forget to prescribe what decisions the attestation commission makes I clause 7 of the Soviet Regulations:
- <или>on the compliance of the employee with the position held;
- <или>on the compliance of the employee with the position held, subject to the improvement of work and the implementation of the recommendations of the commission with re-certification in a year;
- <или>about the incompatibility of the employee with the position held.
The results of the appraisal must be announced to the employee being appraised immediately after the voting results have been summed up.
At least 2/3 of the number of members of the approved composition of the certification commission must participate in the certification and voting (in the absence of an employee). Voting results should be determined by a majority of votes, and in case of equality of votes in assessing the performance of the certified employee, he should be recognized as corresponding to the position he holds. and clause 8 of the Soviet Regulations.
Together with the local certificate of certification, approve the form of the certification sheet, where the certification commission will enter conclusions about the certification (or non-certification) of the employee a clause 9 of the Soviet Regulations. The attestation sheet will need to be filled out during the attestation in two copies, and one copy will be given to the employee.
See the certification form:The second copy of the certification sheet, along with a response to the employee, will need to be stored in his personal file.
In addition, during the attestation, the secretary of the attestation commission must keep a free-form protocol of its meeting. The results of the voting must also be entered in the minutes. I clause 8 of the Soviet Regulations.
We warn the head
Employees need to be familiarized with the local regulation on certification under painting b Art. 22 Labor Code of the Russian Federation. If this is not done, then the dismissal of the employee based on the results of certification will be recognized as illegal. m Determination of the Moscow City Court dated March 30, 2011 No. 33-8582.
If there is a trade union in the company, then do not forget to take into account their opinion before approving your local position on certification and Art. 8 of the Labor Code of the Russian Federation, part 2 of Art. 81 of the Labor Code of the Russian Federation, Art. 372 of the Labor Code of the Russian Federation; p. 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2; Determination of the Moscow Regional Court dated June 1, 2010 No. 33-8370. Otherwise, in the event of a complaint from the trade union or employees to the labor inspectorate, the company and its management may be fined b Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. If, in such a situation, someone is fired based on the results of certification, then when the dismissed person applies to the court, he will be reinstated to work e Art. 394 of the Labor Code of the Russian Federation.
After approval by the management of the local regulation on certification, familiarize the employees of the company with it. It is better to prescribe the terms of such familiarization in the final provisions on certification. And for employees hired after the introduction of the attestation provision, introduce it when hiring at Art. 68 Labor Code of the Russian Federation.
Before certification
For each certified employee, his immediate supervisor must draw up a written review in advance (characteristics )clause 6 of the Soviet Regulations. The response should reflect the characteristics of the employee's production activities, qualifications, and compliance with labor discipline. It is better to immediately approve the recall form with the local regulation on attestation.
See feedback form:Feedback must be submitted to the certification committee no later than 2 weeks before certification. and clause 6 of the Soviet Regulations. Otherwise, when challenging the dismissal, the court may consider that the commission did not have objective information about the employee and his performance before the meeting. This, along with other violations committed by the employer during the certification, may be the reason for the reinstatement of an employee dismissed as a result of such certification. and Determination of the Moscow Regional Court dated June 1, 2010 No. 33-8370.
The employee himself must also be familiar with the review submitted to him no later than a week before the certification. m clause 6 of the Soviet Regulations.
Already at the meeting, the attestation commission hears the report of the attested employee about his work. If the employee does not appear at the meeting without good reason, then the commission has the right to conduct certification in his absence. e clause 7 of the Soviet Regulations. This should be additionally fixed in the local attestation act.
But to prescribe in the local position the rule that if an employee does not appear for certification without good reason or refuses to pass it, then he is recognized as non-certified, Rostrud does not advise.
From reputable sources
“The Labor Code provides, as a basis for terminating an employment contract at the initiative of the employer, the employee’s inconsistency with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification and p. 3 h. 1 art. 81 of the Labor Code of the Russian Federation. The dismissal of an employee on this basis is permissible if the employee’s inconsistency with the position held due to his insufficient qualifications is confirmed precisely by the results of the certification.
Thus, the Labor Code does not provide for the dismissal of an employee on the specified basis without attestation.
The fact of non-appearance for certification or refusal of an employee to pass it is not identical to the fact of obtaining a negative result during certification. The inclusion of such provisions in the local normative act regulating the issues of attestation” .
Rostrud
We draw up management decisions based on the results of certification
The attestation sheets completed by the commission for employees must be transferred to the head of the company for making personnel decisions.
Attention
If the attestation commission came to the conclusion that the employee complies with the position held or the work performed, then it is impossible to dismiss him as not corresponding to the position. I paragraph 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.
Do not forget to enter the results of the attestation of employees in section IV of the personal card in the form No. T-2.
If the certification sheet contains the conclusion of the commission about the inconsistency of the employee with the position held and the manager does not want to leave him in this position, then we do so.
STEP 1. We offer the employee a transfer to another job (corresponding to qualifications or requiring lower qualifications). and Art. 81 of the Labor Code of the Russian Federation).
Please note that the employer has no obligation to offer the employee temporarily vacant positions (for example, those occupied by persons on parental leave). Such positions are not considered vacant, which is confirmed by the court s Determination of the Moscow City Court of August 19, 2010 No. 33-26128.
STEP 2. Depending on the decision of the employee:
- <или>with his consent to the transfer, we draw up an additional agreement to his employment contract and issue an order on the transfer in a unified form No. T-5 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1;
- <или>if he refuses to transfer, we receive such a refusal in writing and draw up a dismissal. To do this, we issue an order to terminate the employment contract in a unified form No. T-8 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.
We warn the head
All personnel decisions regarding the employee(both transfer and dismissal) can be accepted only within 2 months from the date of certification and clause 12 of the Soviet Regulations.
In the absence of suitable vacancies in the company, you can immediately prepare documents for the dismissal of an employee a p. 3 h. 1 art. 81 of the Labor Code of the Russian Federation.
Keep in mind that it is impossible to dismiss an employee based on the results of certification during the period of his temporary disability or being on vacation. I Art. 81 of the Labor Code of the Russian Federation. But if you first issued an order to dismiss an employee, and the employee took sick leave on the same day, then you do not need to cancel the dismissal order. In this case, the company is only obliged to pay the former employee a period of temporary disability. and Part 2 Art. 5 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”; Determination of the Moscow Regional Court dated June 1, 2010 No. 33-8370.
Do not forget to make records of transfers and dismissals of employees in their work book X Clause 4 of the Rules for the maintenance and storage of work books, the production of work book forms and the provision of employers with them, approved. Decree of the Government of the Russian Federation of April 16, 2003 No. 225 and in the personal cards of employees in the form No. T-2 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.
In the event of the dismissal of an employee, the entry in his work book should look like this.
You can also write: “Dismissed due to inconsistency with the position held due to insufficient qualifications, confirmed by the results of certification, clause 3 of the first part of Article 81 of the Labor Code of the Russian Federation » p. 5.2 Instructions for filling out work books, approved. Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69.
An employee does not need to pay severance pay upon dismissal (unless otherwise provided in the company's collective agreement, local regulation or employment contract).
Many do not want to bother with certification, considering this matter too troublesome and time-consuming. But if you approach this issue competently, it turns out that organizing and conducting certification is no more difficult than any other optimization procedure in a company, for example, layoffs.
