General provisions on employee certification

Certification of employees is an effective tool in the hands of the employer, allowing him, based on an assessment of the work activity of employees (testing their business qualities, level of knowledge and skills), to determine whether employees have sufficient qualifications, as well as their suitability for the position held or the work performed.

Requirements for the qualifications of employees necessary to fulfill the duties assigned to them in their positions are determined in the employment contract, job description and other local regulations of the employer, as well as in the Qualification Directory of Positions of Managers, Specialists and Other Employees, approved by the Resolution of the Ministry of Labor of Russia dated August 21 .1998 No. 37, and tariff and qualification reference books by industry.

Considering that, based on the results of certification, the employer has the right not only to promote employees in position and/or pay, but also to terminate employment relations with employees who do not correspond to the position held.

The benefits of certification

Today, the vast majority of employers do not conduct certification of employees, finding this procedure labor-intensive and complex, and many of those who carry out these activities are often limited to only the formal collection of papers and signatures, which ultimately does not bring the desired results.

Proper certification of employees not only brings benefits and gives real results, but is also of great importance for both sides of the labor relationship:

For the employer, this is an opportunity to optimize the use of labor resources, assess the level of qualifications not only of the team as a whole, but also of each employee individually, create additional incentives for the professional growth of employees and improve their skills, form a personnel reserve from the most competent specialists and terminate employment contracts with employees who do not meet the requirements for the position they occupy;

For an employee, this is an opportunity to prove to the employer that he is a competent specialist with sufficient qualifications and a high level of professionalism, as well as to establish himself in this capacity and receive a promotion.

In modern conditions, certification can also help the employer in determining the system of remuneration for employees, because it is obvious that the assignment of a rank 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 by the head of the organization individually.

Procedure for certification

To conduct certification of employees, the employer must approve a local regulatory act (optionally, a regulation) defining:

Procedure, terms and forms of certification;

The composition of the certification commission and the procedure for its creation;

Employee assessment criteria (a system for determining an employee’s suitability for a position by assigning appropriate grades and/or points; establishing the number/percentage of correct answers that determine the employee’s successful completion of certification);

Types of decisions made based on the results of certification and the procedure for their adoption;

Other provisions that, in the employer’s opinion, facilitate the most effective implementation of this procedure.

The employee must be familiarized with the local regulatory act defining the certification procedure upon 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 informed of the possibility of assessing the results of his work and his personal business qualities in the form of certification, and that the results of the certification may result in the dismissal of the employee (Definition Supreme Court of the Russian Federation dated June 4, 2004 No. 5-B03-82).

After carrying out the above actions, the employer, guided by local regulations, must approve the certification schedule and bring it to the attention of each certified employee no later than a month before the start of certification. The schedule should indicate the date and time of the certification, as well as the date of submission of all necessary documents to the certification commission.

It is necessary to stipulate the employee’s obligation to undergo certification in the employment contract. If an employee refuses to participate in certification, this provision of the employment contract will not only be additional evidence that the employee has committed an offense, but also an additional basis for holding the employee accountable.

Frequency of certification

The optimal frequency of certification is no more than once every three years. Considering that carrying out this procedure requires time and invariably creates a tense atmosphere in the team, setting a shorter period seems inappropriate.

The range of employees subject and not subject to certification

When determining the range of employees who are and are not subject to certification, it is advisable for the employer to take into account the special guarantees established for employees by regulatory legal acts. The Regulations on the certification of state civil servants of the Russian Federation dated 01.02.2005 No. 110 (with the possibility of clarification) establish that the following employees are not subject to certification:

Those who have worked in their current position for less than one year;

Those who have reached the age of 60 years;

Pregnant women;

Those on maternity leave and parental leave until the child reaches the age of three. Certification of these employees is possible no earlier than one year after leaving leave.

Composition of the certification commission

As a rule, the composition of the certification commission is as follows: chairman, deputy chairman, secretary and 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. Recommended number of committee members: minimum three, no maximum limit.

Employers whose activities include many different areas or who have large separate structural divisions in terms of the number of employees, for the convenience of carrying out the certification procedure, can create several certification commissions (for the head unit and separate structural divisions of the organization). At the same time, in the local regulatory act regulating the certification, it is necessary to indicate the procedure in accordance with which a commission is created in a separate unit, the powers of the officials included in it, as well as regulate other issues arising in the certification process.

A representative of the elected body of the relevant primary trade union organization must be included in the certification commission (if there is one, and except in cases where, based on the results of the certification, the dismissal of employees is not provided for by local regulations). If, during the certification process that served as the basis for dismissal, a representative of the elected trade union body of the corresponding primary organization was not included in the certification commission, such dismissal is illegal (“Review of the cassation and supervisory practice of the judicial board on civil cases of the Krasnoyarsk Regional Court for 9 months of 2009 ").

Feedback on an employee

When conducting certification, an important stage is the preparation of reviews (characteristics) of employees, and the employee’s immediate supervisor can best evaluate the employee’s performance. In the review, the manager must evaluate the employee’s work activity, using the criteria and indicators established by local regulations, such as:

The quality of the employee’s performance of the tasks assigned to him;

Indicators of work results for the period that has passed since the last certification (or during work, if certification is carried out for the first time);

Professional knowledge, skills, abilities and competence;

The degree of implementation of professional experience;

Business qualities of the employee: organization, responsibility, diligence, efficiency, work intensity and independence in decision making;

Moral and psychological qualities of an employee: ability to self-esteem, adaptability, culture of thinking and speech;

A specific list of the most important issues in which the certified employee took part;

Availability of incentives and penalties for the employee.

The employee must be familiarized with the review against signature.

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 of the employee. During an individual interview, the manager must clarify the employee’s goals and objectives, his attitude to the assigned job responsibilities, as well as whether the employee has any problems that require intervention and assistance from the employer to be resolved positively.

2. Oral form in the form of a collegial interview

A collegial interview is conducted by the certification commission after reviewing all submitted materials.

A collegial interview should be conducted in a calm, stress-free environment so that the employee has the opportunity to feel confident and worthy to participate in the dialogue.

During the collegial interview, the commission members listen to the messages of the employee being certified and clarify with him the information they are interested in. It is also permissible to 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 activities could be if it was not achieved by the employee, and what the employer can do to ensure that such a result is achieved in the future achieved by the employee.

If an employee finds it difficult to answer some questions, he should not insist on mandatory provision of an answer to the commission.

The main tasks of the commission members are: listen to the employee; assess the level of his preparedness and suitability for the position held; identify the problem and its causes; draw appropriate conclusions and make the necessary decisions.

3. Written form in the form of tests filled out 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.

At the same time, testing involves conducting thorough organizational preparation for it, including the formation of a list of questions and approval of certification tests.

Also, the number (percentage) of correct answers that determines the employee’s successful completion of certification must be established in advance. Questions included in the tests must correspond to the profession (specialty) and qualifications of the employee undergoing certification. With the passage of time, which implies the development of all spheres of society, questions in tests must be updated.

Types of decisions based on the results of certification

Based on the results of the certification, the commission in relation to each of the certified employees, depending on the final assessments received by the employee during the certification process, can make one of the following decisions:

The employee is suitable for the position held and is recommended for transfer in order of promotion;

The employee corresponds to the position held and is recommended for inclusion in the personnel reserve to fill a vacant position in the order of promotion;

The employee is suitable for the position held;

The employee is not suitable for the position held.

It should be noted that in relation to civil servants, the law provides for another solution, such as: corresponds to the position being filled in the civil service, subject to successful completion of professional retraining or advanced training.

Inconsistency of the employee with the position held

If, based on the results of the certification commission, it is established that the employee is not suitable for the position held or the work performed due to insufficient qualifications, the employment contract with the employee may be terminated in accordance with paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.

The Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states that the conclusions of the certification commission about the business qualities of an employee are subject to assessment in conjunction with other evidence in the case. Thus, in order for the termination of an employment contract on this basis to be recognized as legal in the event of a trial, it is necessary that the documents submitted to the certification commission contain objective and reliable information confirming the lack of qualifications of the employee and are signed by authorized persons.

These can be certificates or reports about the employee’s failure to comply with labor standards without good reason, certificates of marriage release, protocols about the employee’s untimely or poor performance of the employer’s tasks and violations and errors committed by the employee during the work process, etc.

The employer's procedure in the event that, based on the results of the certification commission, an employee is found to be unsuitable for the position held or the work performed due to insufficient qualifications, should be as follows:

In accordance with Part 3 of Article 81 of the Labor Code of the Russian Federation, the employer must offer the employee another job available to the employer in the given area, both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job that the employee can perform taking into account his condition health. An employer is obliged to offer vacancies in other localities only if this is provided for by a collective agreement, agreements, or employment contract.

The employer's proposal, as well as the employee's consent or refusal to transfer to another position, must be formalized in writing. The text of an employee’s notice of transfer to another job due to his inadequacy for his position may be as follows:

If the employee agrees to be transferred to another position, an additional agreement to the employment contract is drawn up and the employer issues an order to transfer the employee to another job, and the corresponding 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 has no vacancies, a decision may be made to terminate the employment contract. In this case, a corresponding order is issued and the following entry is made in the work book:

It should be borne in mind that an employment contract on this basis cannot be terminated during the period of temporary disability of the employee or while he is 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 14 years of age (a disabled child under 18 years of age), other persons raising these children without a mother (Article 261 of the Labor Code of the Russian Federation).

If, on this basis, an employee who is a member of a trade union must be dismissed, it is necessary to take into account the reasoned opinion of the elected body of the primary trade union organization in the manner established by Article 373 of the Labor Code of the Russian Federation.

Thus, in the Determination of the Moscow City Court dated March 30, 2011 in case No. 33-8582, it is stated that from the minutes of the meeting of the trade union committee it follows that a representative from the trade union committee was delegated to the certification commission, however, his signature is not visible from the certification sheet. Also, the employer did not provide evidence that 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 above, the court 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 for minors and the protection of their rights.

Unlawful actions during certification

Many employers expect to conduct certification in order to get rid of employees they do not like, regardless of the actual performance of such employees.

However, it is hardly possible to solve the problem of subjective hostility through certification, since the employer’s actions in this case are illegal, the real motive for conducting certification is almost impossible to hide, and therefore the employer will not be able to avoid problems in the event of a dispute.

Not only the employer when using administrative resources, but also a biased attitude towards the employee on the part of his immediate supervisor can influence the decision of the commission in order to underestimate the final assessment of the employee’s work results. To avoid this, the employee is given the right to familiarize himself with the review by his 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. The employee can also provide the certification commission with additional information about his work, for example, reports on completed tasks, final results of his activities, testimony of other employees, etc.

Often, before certification, an employee is deliberately given instructions that are either obviously impossible to fulfill or do not correspond to his position, profession or qualifications. In order to prevent such violations, the certification commission must make sure that the employee has a duty 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, then recognizing the employee as unsuitable for the position held is illegal.

Also quite common violations of the certification procedure are:

Carrying out certification in violation of the established frequency;

Violation of deadlines for warning employees about upcoming certification;

Carrying out certification of employees who are not subject to certification;

Preparation of a review that is biased or not supported by reliable evidence, for example, indicating improper performance of duties without any specification of the facts of such failure;

Failure of the employee to familiarize himself with the review;

The absence of specialists in the areas to which the certified workers belong to the certification commission;

Dismissal of employees in cases where certification was not carried out.

Carrying out certification in the absence of an employee

Employers should not conduct certification in the absence of the employee in cases where there is no conclusive evidence that the employee has been notified of the date of certification. As follows from the Determination 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 issued a notice to the employee about the need to arrive on 03/16/2009 to undergo certification. On March 12, 2009, the employer drew up an act stating that the employee refused to receive notification 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 employee’s qualifications 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 lack of confirmation from the employer that the employee was notified of the certification being carried out, the dismissal of the employee under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation was declared illegal and the employee was reinstated at work.

Consequently, a planned assessment is carried out every 5 years - the previous ones were in 2009 and 2014. An unscheduled certification may be organized if:

• The main office is being changed, new jobs are being created;
• Production technology and equipment used are changing;
• A similar demand is put forward by the trade union body;
• PPE needs to be replaced;
• An employee sustains a work-related injury.

The procedure for conducting unscheduled certification does not differ from the standard one. Based on the results of its implementation, other cards are drawn up, to which all changes are made. It is important to know that violation of labor and labor protection legislation in case of failure to pass certification threatens with administrative fines (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• For an official it will range from 1000 to 5000 rubles.

403 forbidden

Important

Next, you need to compile lists of employees, draw up a reference for each person or another document containing complete information about his work activity. The schedule and composition of the certification commission should be approved by order.

Info

Carrying out certification Members of the commission talk with each employee or ask him to take a test, study the characteristics or certification sheet, and all information is entered into the protocol. In conclusion, they discuss the information received and make a decision for each employee, which is recorded in the protocol and brought to the attention of the employee.

The result of the certification is reflected in the employee’s personal card. Results of qualification assessment After completion of the procedure, the manager makes a decision, the results of certification for suitability for the position held are recorded in the order.

How to conduct certification at an enterprise in 2018

The certification commission is created by order of the employer after concluding an agreement with an independent certification organization. The commission includes representatives of the certifying organization and representatives of the employer.
The employer can be represented by any employees: lawyers, personnel officers, accountants, labor protection specialists, etc. Justification. Certification is carried out jointly by the employer and the organization engaged by him to carry out certification work.

Certifying organization is a legal entity accredited in the prescribed manner as an organization that provides certification services and carries out measurements and assessments, as well as an assessment of the compliance of working conditions with state regulatory requirements for labor protection, on the basis of a civil law agreement with the employer, carried out in accordance with Section. III Procedures, registration and preparation of the certification report.

Creation of an attestation commission

The responsibilities of the commission created to carry out certification include: Responsibilities Their content Control over the assessment Independently carrying out all activities aimed at assessing workplaces Preparation of the required documents Documentation prepared by the commission is not only organizational, but also normative in nature Creating a list of workplaces It is necessary to assess and identify harmful aspects of work, determine the need to use PPE Preparation of the final report Indication of all information collected during the certification of workplaces at the enterprise An additional responsibility of the created company is to fill out the certification card.

Certification commission at the enterprise

If there is a trade union organization, then its representatives also become members of the commission. The commission does not have the right to conduct a professional qualification check in the absence of an employee.

Attention

If the employee was duly notified of the certification, signed the relevant introductory documents, and did not appear at the commission, then in this case the report is left and the employee is considered to have failed the certification. The activities of the certification commission can be carried out in 2 forms:

• Direct performance assessment;
• Mystery assessment (known as mystery shopping)

Members of the commission undergo certification with the involvement of independent appraisers.

The procedure for organizing the training and certification of specialists from organizations supervised by Rostechnadzor is determined by the Regulations on the organization of work on the training and certification of specialists from organizations supervised by the Federal Service for Environmental, Technological and Nuclear Supervision, approved by Order of Rostechnadzor dated January 29, 2007 No. 37 (hereinafter referred to as the Regulations). In accordance with the Regulations, certification commissions of supervised organizations are created by order (instruction) of the head of the organization.

All about certification of enterprise employees

The table presents the most effective methods for conducting professional checks: Method Description Ranking Subordinates are ranked according to their ability to perform a particular job, i.e. by rank Classification Employees are classified according to predetermined categories of achievements (merits) Rating scale A specific table is created where the personal and professional qualities of the employee are entered. Opposite each of the qualities, a rating is given on a certain, usually five-point, scale. Open certification method This is a new assessment method that is gaining popularity.

Instead of ticks, as in the previous case, the employee is assessed live using the method of oral or written characteristics. Results of the commission's activities The results of the certification commission's activities are summed up in a general order from the head of the organization.

The procedure for creating a certification commission

Certification commissions are created in regional centers of the Ministry of Emergency Situations of Russia, in the main departments of the Ministry of Emergency Situations of Russia in the constituent entities of the Russian Federation, in educational institutions of higher professional education and research institutions of the Ministry of Emergency Situations of Russia and in other organizations of the Ministry of Emergency Situations of Russia created in the manner established by the legislation of the Russian Federation. A Central Certification Commission is being created in the Russian Ministry of Emergency Situations. The composition and list of issues considered at its meetings are determined by the Minister of the Russian Federation for Civil Defense, Emergency Situations and Disaster Relief.

How to create and register an attestation commission?

It includes the following information:

• On the assignment of categories to some employees;
• On increasing wages and paying incentives;
• On the abolition of bonuses and reductions in qualifications;
• On the transfer or dismissal of employees whose skills do not correspond to their position.

Additionally, the certification commission draws up a report on the assessment, which indicates the number of employees who correspond to the positions held and those who do not. The result of the activity is the preparation of proposals for each employee. In the video, a specialist talks in detail about personnel assessment and certification. Certification of workplaces based on working conditions is a mandatory procedure for all employers, the purpose of which is to identify and eliminate harmful factors and risks for workers.

How to create a certification commission at an enterprise

In accordance with paragraph 1 of Article 9 of the Federal Law of July 21, 1997 No. 116-FZ “On Industrial Safety of Hazardous Production Facilities,” an organization operating a hazardous production facility is obliged to ensure that the hazardous production facility is staffed in accordance with established requirements. Labor law norms do not apply to persons working under civil contracts (Art.
11 of the Labor Code of the Russian Federation). 2. In accordance with clauses 20, 21, 22 of the Regulations on the organization of training and testing of knowledge of working organizations supervised by the Federal Service for Environmental, Technological and Nuclear Supervision (RD 03-20-2007. approved.

How is a certification commission created at an enterprise?

Accordingly, when hiring, we can create a certification commission for a medical organization (based on the relevant order approved by the general director), establish the presence of sufficient practical experience and the absence of complaints about the high-quality performance of the duties assigned to the employee, hire him, and at the same time send him for training. QUESTION: how to create and formalize an attestation commission and how is sufficient practical experience documented? Answer Answer to the question: Certification of employees in an organization should be carried out by a certification commission.

The legislation of the Russian Federation does not establish any special requirements for the composition of the commission. However, it must be formed in such a way as to reduce the possibility of future labor disputes.

An important step in the certification process is the preparation of a review (characteristics) for the employee being certified, so that the certification commission can comprehensively assess the employee’s performance, his competencies, skill level and business qualities. Therefore, the review (characteristic) must contain a complete, comprehensive and objective assessment of the professional, business and personal qualities of the certified employee, and reflect the specific results of work in this position for the period preceding the certification.

As a rule, such a review (characteristic) of an employee is prepared by his immediate supervisor.

Certification work acts as one of the most important elements of personnel activities. The composition of employees undergoing periodic inspection is approved for each industry separately. Let us consider further in detail how certification work is carried out.

General information

The activity in question should be understood as a periodic check of the professional suitability of each employee of a certain category for suitability for the position held. The legislation does not establish an obligation for everyone without exception to carry out this procedure. There are no provisions of this kind in the Labor Code or in other regulations of a particular industry. Meanwhile, the legislation provides for mandatory verification of professional suitability for certain categories of employees. Their activities are regulated by special standards, which establish the procedure for certifying employees.

Mandatory verification

The legislation provides for certification rules:

1. Employees of organizations of certain economic sectors.
2. RF, employees of some federal, municipal and regional executive structures.
3. Heads of unitary enterprises.

1. Operational dispatch control in the energy sector.
2. Movement of trains, shunting operations on railway tracks.
3. Ensuring the safety of navigation.
4. Hazardous production facilities.
5. Storage and destruction of chemical weapons.
6. By air.
7. Educational activities.
8. Sources of ionizing radiation.
9. Space infrastructure.

Library workers are also subject to mandatory certification. In all other cases, the procedure is voluntary.

Regulations on employee certification

It is developed by those enterprises that carry out professional suitability testing on a voluntary basis. This document is drawn up by the employer and the personnel service of the organization. It should identify the key issues for certification. Methods for evaluating employees are developed taking into account the specifics of the enterprise’s activities, the qualifications of personnel and other management factors. The regulation on employee certification should consist of sections reflecting all aspects related to verification. Let's consider them separately.

Employee categories

The regulation on employee certification must clearly define which personnel are subject to testing for professional suitability and which are not. First of all, the examination is carried out in relation to such a category of employees as employees. They are those workers who are engaged primarily in mental work. As a rule, their functions include management, approval, and preparation of any information. A group of employees engaged in manual labor is called workers. Their functions include the direct creation of material products and support of production activities. As a rule, they are not subject to certification. The selection of specific categories of employees for professional suitability testing is carried out by the personnel service, taking into account the specifics of the enterprise’s activities.

Exceptions

Checks are not carried out on employees:

1. Have been in the state for less than a year. This is due to the fact that they do not have the appropriate experience, and the conclusions that the certification commission will make will be, accordingly, biased.
2. Pregnant employees. Even if there is a discrepancy, they cannot be fired, since the prohibition on this is established by Art. 261 TK.
3. Women who have dependent children under three years of age and are on leave to care for them. Certification of these employees is carried out no earlier than 1 year after the end of the vacation period. The establishment of a period is due to the fact that while caring for a child, a woman may lose her qualifications. 1 year is accepted as a reasonable period for its restoration. In addition, even if there is a discrepancy, the employer will not be able to terminate the contract by virtue of Art. 81 clause 3 of the Labor Code.

Additionally

The list of employees not subject to verification may include the following employees:

Periodicity

The Regulations on Certification of Workers must include the conditions for conducting an audit. First of all, you should determine its frequency. Currently, Regulation No. 267/470 of October 5, 1973 is in force, establishing that the certification of engineering, technical, managerial employees and workers of other specialties is carried out once every three to five years. Accordingly, this frequency can be taken as a basis when drawing up a local enterprise document. For example, the Regulations on employee certification may establish a frequency of once every three or four years. It is possible to determine the frequency of inspections. For example, no more than once every three years.

Deadlines

In the process of establishing frequency, it is advisable to immediately determine the start and end dates of inspections. For example, in educational institutions it can be tied to the moment when the order was issued or to what is specified directly in the order. It is important to determine the period during which the check will be performed. The organization determines it independently, guided by the number of staff, the composition of the certification commission, the level of qualifications of employees, etc. In practice, the minimum period for conducting an audit is considered to be 3-6 months. If the enterprise is large and it will be impossible to meet this period, the procedure is carried out in stages. Employees who are subject to verification are distributed by year within the periodicity. If it is not possible to determine the exact timing of the certification, then they can be established by direct orders of the manager. This fact must be reflected in the local document regulating the conditions for conducting the inspection.

Informing employees

The Regulations must include information about:

The local act also specifies other documents that the employee must be familiar with. If a final certification is provided, the employee should be given the opportunity to study its results, up to and including obtaining the necessary copies.

Types of verification

Certification can be carried out:

1. As planned. Such verification is carried out within the prescribed time frame.
2. Unscheduled. This certification is also called early.

An unscheduled inspection may be carried out in connection with:

1. By promoting an employee to a higher position upon his release by a previous employee.
2. Significant miscalculations or omissions in professional activities, commission of a disciplinary violation associated with improper/low-quality performance of duties. Identified shortcomings in the activities of one employee may lead to certification of employees of the entire department.

The verification may be carried out at the request of the employee himself, who wishes to obtain another position or to declare himself as a suitable candidate. Certification can also be initiated by the head of the enterprise or one of the management staff. For example, an inspection may be required for an employee who was hired a year ago and did not pass the examination due to the lack of the necessary experience and length of service at the time of the examination.

Goals

They can be basic or additional. It is advisable to indicate in the Regulations all the purposes for which certification is carried out. The main ones include:

Additional goals could be:

1. Checking the employee's compatibility with the team. In this case, his ability to act in a team is determined, his loyalty to management and the entire organization as a whole is established.
2. Checking the motivation to carry out activities in the position held.
3. Analysis of employee professional development prospects.

In addition, the Regulations may provide for general goals:

1. Improving the quality of personnel management and the efficiency of personnel activities.
2. Strengthening employee responsibility and executive discipline.

A local act may also define special goals. They may be:

1. Establishing a list of positions and employees who are subject to reduction or dismissal.
2. Improving the psychological atmosphere at the enterprise.

Inspection body

Must determine the scheme according to which the certification commission will operate. In particular, conditions are established on the basis of which:

It is necessary to take into account that according to Part 3 of Art. 81 of the Labor Code establishes that in the event of an inspection, the results of which may lead to termination of the employment contract, the final certification is carried out with the participation of representatives of the trade union. In this regard, the local act should determine the form of participation of members of the trade union. The Higher Attestation Commission performs the professional suitability test in federal authorities. Its composition is formed from senior officials of leading departments and ministries. for example, provided for in the judicial system. Its tasks include not only checking current employees, but also candidates for judges.

Nuance

The inclusion of a trade union member in the certification commission is not necessary in all cases. Its presence in the composition will depend on the purpose of the test. If, as stated above, the certification is carried out to establish professional suitability and, based on its results, the presence of a representative is mandatory. In other cases, it is not strictly regulated. For example, it is not necessary for a representative to be present during certification aimed at forming a reserve of employees, increasing salary categories, etc.

Features of the event

Certification can be carried out in various ways. For example, this could be a direct check of the employee’s professional activities. In this case, authorized persons are present at the employee’s place of work. In addition, inspectors study the documentation for correctness and timeliness of information. For some categories of employees, certification tests are provided. They are necessary, for example, for those whose activities require special knowledge.

results

The Regulations must specify the wording of the conclusions that can be drawn after the certification. However, they must be clear and clearly indicate the result of the check. In practice, formulations such as fit/not fit for the position or conditionally fit are used. The last conclusion suggests the presence of certain recommendations for the manager regarding this employee. This intermediate assessment is of great practical importance. It allows you to influence the professional behavior of an employee. Other formulations, such as “fit”, “certified”, and so on, often lead to internal disagreements with the employee, and in some cases to legal proceedings.

Paperwork

The Regulations must clearly define the list of papers that are drawn up during certification. In accordance with the decision of the body authorized to conduct the inspection, taken upon completion of the inspection, a report is prepared. In it, the personnel service indicates the number of employees corresponding to the positions held, as well as the number of those who are professionally unfit for work. After this, proposals are formulated for specific employees. In accordance with the final documents, the director of the enterprise issues an order to carry out activities based on the certification results. It specifies the tasks for the personnel service that need to be solved in relation to specific employees, as well as the deadlines for their implementation and the responsible persons. The effectiveness of the measures taken will be shown by the results of the next certification.

General provisions

Certification of employees is an effective tool that allows the employer, based on an assessment of the work activity of employees (testing business qualities, level of knowledge, skills), to determine whether they have sufficient qualifications, as well as their suitability for the position held or the work performed.

Requirements for the qualifications of employees are determined by: an employment contract, job description, local regulations, qualification reference books and professional standards.

With a small staff size and without certification, it is not difficult for an employer to figure out which of the employees fulfills their job duties with dignity and deserves promotion and encouragement, and who regularly makes mistakes and does not bring much benefit. But the larger the number of employees, the more difficult it is to do this.

In relation to civil servants and budgetary organizations of certain areas of activity, the need for certification and the procedure for its implementation are established by regulatory legal acts. Certification of employees performing labor duties for other employers is not mandatory; it is carried out by decision of employers and is regulated by local regulations prepared taking into account the standards contained in the Labor Code of the Russian Federation and other regulatory legal acts.

Considering that, based on the results of certification, the employer has the right to terminate employment relations with those employees who do not correspond to the position held, in order to avoid challenging the procedure and recognizing local regulations as discriminatory and worsening the situation of employees, it is recommended to include in the employer’s internal documents standards similar to those contained in the regulations acts defining the certification.

You can contact labor law lawyers who also represent the Customer’s interests in the courts. The cost of consulting a lawyer with the elaboration of the documents available to the Customer is 4000 rubles.

The benefits of certification

The vast majority of employers do not conduct certification of employees, finding this procedure labor-intensive and complex, and many of those who carry it out are often limited to only the formal collection of papers and signatures, which ultimately does not bring the desired results.

At the same time, competent certification of employees not only brings benefits and gives real results, but is also of great importance for both sides of the labor relationship:

In modern conditions, certification can also help the employer in determining the system of remuneration for employees, and it is obvious that the assignment of a rank 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 by the head of the organization individually.

Objectives of certification

The main objectives of certification are:

Procedure for certification

To carry out certification of employees, the employer must approve (or, as an option, a regulation) defining:

A local regulatory act must provide clear and precise criteria that allow an objective assessment of an employee’s business qualities (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No.).

The local regulatory act defining the procedure for employee certification must be familiarized with 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 informed 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 result in the dismissal of the employee (Definition of the Supreme Court RF dated 06/04/2004).

As follows from the Appeal ruling of the Moscow City Court dated February 24, 2015 in case No., the fact that an employee has familiarized himself 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 that the employee is familiar with all the rules that determine the procedure for conducting certification, with which the employee must be familiarized with signature.

It is also necessary to take into account that in the absence of provisions in a 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, if a labor dispute arises, the court may point out the employer’s failure to take the necessary actions during 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 carrying out the above actions, the employer, guided by local regulations, must approve the certification schedule and bring it to the attention of each certified employee no later than a month before the start of certification. The schedule should indicate the date and time of the certification, as well as the date of submission of all necessary documents to the certification commission. Violation of this obligation by the employer may result in the certification being declared illegal.

It is advisable to stipulate the employee’s obligation 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 that the employee has committed an offense and the basis for holding the employee accountable.

Regarding the employee’s refusal to carry out certification, there is an interesting ruling of the Moscow Regional Court dated June 10, 2010 in the case, which established that the employee, who applied to the court with a demand to declare the certification illegal and reinstated at work, during the period of work, against signature, was familiarized with the current The defendant has a certification provision, according to which, if he fails to appear without good reason or refuses certification, the employee is recognized as uncertified, i.e. not appropriate for the position held and is subject to dismissal. The order of the general director provided for a scheduled certification, which was familiarized to 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 rules, procedure and timing of certification were explained to the employees, sample tasks/questions were given, the employee refused to sign the protocol, about which the employer drew up a report. Next, a meeting of the certification commission took place, from the minutes of which it follows that the meeting of the commission was postponed indefinitely, since the employee asked permission to leave the office and left the territory of the enterprise. From the employee’s explanation it follows that on the day of the certification she waited in the reception area for 2.5 hours, after which she felt ill and went to the hospital. After this, 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 employee returned to work, it follows that she refused to undergo certification, about which a report was drawn up. Further, according to the certification sheet, the employee was recognized as unsuitable for 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 part one of Article 81 of the Labor Code of the Russian Federation. Based on the results of consideration of this case, the court came to the conclusion that the employer had legal grounds for terminating the employment contract with the employee under paragraph 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 panel does not see any grounds for re-evaluating the evidence, since there is evidence that the plaintiff’s refusal to undergo certification entailed negative consequences, the seriousness of which allows us to come to the conclusion that the applied disciplinary measure in the form of dismissal corresponds to the gravity of the offense, case materials do not contain and such circumstances are not cited 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 justifiably recovered wages from the employer in her favor for the period of forced absence.”

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 environment in the team, setting a shorter period seems inappropriate.

It should also be borne in mind that the period of certification less than once every three years may be considered to worsen the employee’s situation in comparison with the standards contained in regulatory legal acts. For example, this is exactly the frequency of certification (three years) established for state civil servants, heads of state unitary enterprises, employees of territorial bodies of the antimonopoly service, the Federal Social Insurance Fund 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.

Workers subject/not subject to certification

When determining the range of employees who are and are not subject to certification, it is advisable for the employer to take into account the special guarantees established by regulatory legal acts. TeKa Group LLC 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 the following employees are not subject to certification:

Composition of the certification commission

As a rule, the composition of the certification 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 cover many different areas or have separate structural divisions with large staffing levels can create several certification commissions (for the head office and separate structural divisions) for the convenience of certification. 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 unit, determine the powers of officials, and also regulate other issues arising in the certification process.

Attention! The certification commission must include a representative of the elected body of the relevant primary trade union organization (if there is such a body and except for cases where local regulations do not provide for the dismissal of employees based on the results of certification). If, during the certification process that served as the basis for dismissal, a representative of the elected trade union body of the corresponding primary organization was not included in the certification commission, such dismissal is illegal (Review of cassation and supervisory practice of the judicial board in civil cases of the Krasnoyarsk Regional Court for 9 months).

When conducting 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 division for civil service and personnel issues, the legal (legal) division and the division in which the civil servant, subject to certification, holds a civil service position), a representative of the relevant body for managing the civil service, 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 certification commission.

Feedback on an employee

When conducting certification, an important stage is the preparation (characteristics) for the employee being certified. The best way to evaluate an employee’s performance can be his immediate supervisor, using the following criteria and indicators established by local regulations 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 that employers 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 of the employee.

During the individual interview, the employee is explained the grounds and procedure for certification, responsibility for the employee’s failure to appear for certification, information about the employee’s attitude to the position held and the work performed, as well as about difficulties and problems arising during the performance of the job function is clarified with the employee and entered into the review, requiring any decisions to be made by the employer.

2. Oral form in the form of a collegial interview

A collegial interview is conducted by the certification commission after reviewing all submitted materials. The interview should be conducted in a calm environment, free from nervousness, so that the employee has the opportunity to feel confident and worthwhile to participate in the dialogue.

During the collegial interview, the commission members listen to the messages of the employee being certified and clarify with him the information they are interested in. The commission may invite the employee to independently evaluate his work for the period subject to certification and listen to his opinion about what the maximum result of his activities could be, and if such a result is not achieved, what exactly the employer can do to ensure that it is achieved.

If an employee finds it difficult to answer some questions, the employer should not insist that an answer be provided. The main tasks of the commission are: to listen to the employee; assess the level of his preparedness and suitability for the position held; identify the problem and its causes; draw appropriate conclusions and make the necessary decisions.

3. Written form in the form of tests filled out 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 conducting thorough organizational preparation, including the formation of a list of questions and approval of certification tests.

The number/percentage of correct answers that determine the employee’s successful completion of the certification must be established in advance. Questions included in the tests must correspond to the profession (specialty) and qualifications of the worker being certified. With the passage of time, which implies the development of spheres of social life, questions in tests should be updated.

Certification of employees is usually accompanied by a record, in which all information obtained during the procedure is entered. In accordance with the Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558 "On approval of the List of standard management archival documents generated in the process of activities of state bodies, local governments and organizations, indicating storage periods", minutes of meetings, decisions of certification 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 process to be incomplete or untrue (incorrect), it is advisable to indicate in detail in the documents prepared by the employer (attestation sheet / protocol / written test of the employee, etc.) what exactly are the complaints about 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. was unable to give a complete and correct answer to any of the seven questions posed to her during the certification. Meanwhile, from the examination sheet with G.’s answers presented in the case file .d. 101) it is impossible to draw a conclusion about the correctness or incorrectness of the plaintiff’s answers to the questions posed; from the testimony of the chief accountant F., who was questioned at the court hearing as a witness, who was a member of the certification commission, it is also impossible to draw a conclusion about what the incorrectness or incompleteness consisted of. G.’s answers to the questions posed and to what extent G.’s answers objectively indicate the plaintiff’s inadequacy for the position of accountant.”

Guarantees of objectivity of certification

The objectivity of employee certification is guaranteed by the following conditions:

1. Collegiality of inspectors

Provides a comprehensive and objective review of documents reflecting the employee’s work activity, an unbiased assessment of the level of his qualifications when deciding on the employee’s suitability/non-compliance with the position held and the work performed.

The commission should not be formed on the basis of including the largest number of administration representatives. The commission should include the most experienced specialists and representatives of the trade union, with a high level of qualifications, strength of character and a reputation for being non-conflict people, devoid of a preconceived point of view, polite and tactful.

If necessary, local regulations may provide for the employer’s ability to include specialists from third-party organizations in the certification commission.

The employer should keep in mind that if a labor dispute arises, members of the commission may be summoned to court as witnesses to give explanations regarding the certification of the employee, and in this case they will have to justify the employer’s arguments as to why the employee could not be considered to have passed the certification. And members of the commission cannot 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 issues put before the plaintiff 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 materials, it is impossible to draw a conclusion about the correctness or incorrectness of the plaintiff’s answers to the questions posed; from the testimony of the chief accountant interrogated at the court hearing as a witness, who was a member of the certification commission, it is also impossible to conclude that what was the incorrectness or incompleteness of the plaintiff’s answers to the questions posed and to what extent her answers objectively indicate the plaintiff’s inadequacy for the position of an accountant. Substantiating the arguments about the existence of grounds for dismissing 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 case materials, during the period of the plaintiff’s work, not a single disciplinary sanction was applied to her for improper performance of her job duties; in 2009, the plaintiff received an increase in the ETS rank for the purpose of remuneration, and memos with comments about the plaintiff’s unsatisfactory work from the chief accountant to the director of the institution began to appear from December 25, 2013, i.e. shortly before the certification.

3. Consistency of requirements for the certification procedure

The procedure, conditions, criteria and timing of employee certification, determined before the start of certification, must remain unchanged until the end of the procedure.

The possibility of personally presenting additional requirements to employees should be excluded, questions and tests should be standardized, bias and/or preference on the part of commission members and immediate supervisors should be suppressed.

4. Responsibility for violation of the certification procedure

Considering that the actions of members of the certification commission that violate the established procedure for conducting certification are improper performance of labor duties, entail the risk of loss of professional personnel and the emergence of a labor dispute, if facts of violation of the rights of the certified employee are revealed, the perpetrators should be subject to disciplinary action.

The employer can also enshrine this provision in a local regulatory act regulating the procedure for conducting certification.

Types of decisions based on certification results

Based on the results of the certification, in relation to each of the certified employees, depending on the assessments received during the procedure, the commission may make one of the following decisions:

It should be noted that in relation to civil servants, the law provides for another solution - it corresponds to the position being filled in the civil service, subject to successful completion of professional retraining or advanced training.

Inconsistency of the employee with the position held

If, based on the results of the certification process, the commission establishes that the employee is unsuitable for the position held due to insufficient qualifications, the employment contract can 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 Resolution of the Plenum of the Supreme Court of the Russian Federation states that the conclusions of the certification commission about the employee’s business qualities are subject to assessment in conjunction with other evidence in the case. Thus, in order for 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 reports about the employee’s failure to comply with labor standards without good reason, certificates of release of defects, protocols about the employee’s untimely or poor-quality completion of tasks and violations and errors committed by the employee during the work process.

If the court finds that the contents of the minutes of the meeting of the certification commission in conjunction with other evidence presented by the employer do not provide grounds for confirming the fact that the employee is unsuitable for the position held, then the dismissal cannot be recognized as legal and justified and the employee is subject to reinstatement in his previous job (for example, an 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 significant 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 stated:

"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 meet the qualification characteristics of the position of accountant. Meanwhile, as follows from the job description of the accountant, approved by the director of the State Autonomous Institution of Moscow "PKiO “***”, a person with a secondary vocational (economic) education without any work experience requirements or special training according to an established program and at least 3 years of experience in accounting and control is appointed to the position of accountant for this area. corresponds to the Qualification Directory of Positions of Managers, Specialists and Other Employees, approved by Resolution of the Ministry of Labor of the Russian Federation dated August 21, 1998 No. 37. As follows from the case materials, in 1997 G. graduated from accounting courses, i.e. had special training according to the established program at the time. During certification, her work experience as an accountant was 13 years 04 months. 04 days, i.e. According to her qualification characteristics, G. met the requirements."

In the event that, based on the results of the certification commission, it is revealed that the employee is not suitable for 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 available to him in the given area, as a vacant position or a job that corresponds to the qualifications of the employee, as well as a vacant lower position or lower paid work that the employee can perform taking into account his state of health (Part 3 of Article 81 of the Labor Code of the Russian Federation). An employer is obliged to offer vacancies in other localities only if this is provided for by a collective agreement, agreements, or employment contract.

The employer's proposal, as well as the employee's consent or refusal to transfer to another position, must be formalized in writing. The text of an employee’s notice of transfer to another job due to his inadequacy for his position may be as follows:

"Dear Ivan Ivanovich!

We hereby inform you that based on the results of the certification of employees of "____" _______ 20___ at TeKa Group LLC, it was established that you are not suitable for the position held by ____________, and the order of "____" _______ 20___ No. _____ determined the possibility of your transfer with your consent to another position.

We provide you with a list of vacant positions to which transfer is possible, and notify that in case of refusal to transfer, the employment contract can be terminated under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation:

1. ________ - official salary 30,000 rubles;

2. ________ - official salary 25,000 rubles;

3. ________ - official salary 20,000 rubles.

If you agree with the transfer, please indicate the desired position; if you refuse the transfer, please inform us by putting the appropriate mark in this notice.

I agree with the transfer to the position ________ with an official salary of ________ rubles ________ (employee signature)

I refuse to be transferred to the proposed positions ________ (employee signature)"

If the employee agrees to be transferred to another position, an additional agreement to the employment contract is drawn up and the employer issues an order to transfer the employee to another job, and the corresponding 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 any corresponding vacancies, the employer may decide to terminate the employment contract. In this case, a corresponding order is issued and the following entry is made in the work book:

“The employment contract was terminated due to the employee’s inadequacy for the position held due to insufficient qualifications confirmed by the results of certification, paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation”

It should be borne in mind that an employment contract on this basis cannot be terminated during the period of temporary disability of the employee or while he is 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 14 years of age (a disabled child under 18 years of age), 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 18 years of age or the only breadwinner of a child under three years of age in a family raising three or more young children, if the other parent (other legal representative of the child) is not in an employment relationship. (Article 261 of the Labor Code of the Russian Federation).

If, on this basis, an employee who is a member of a trade union must be dismissed, it is necessary to take into account the elected body of the primary trade union organization in the manner established by Article 373 of the Labor Code of the Russian Federation - for example, in the Determination of the Moscow City Court dated March 30, 2011 in the case it is indicated that from the minutes of the meeting of the trade union committee it follows that a representative was delegated to the certification commission from the trade union committee, however, his signature is not visible from the certification sheet. Also, the employer did not provide evidence that 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 this, the court 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 for 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, notifications and other documents, must be signed by persons who have. For example, the Determination of the Moscow Regional Court dated 06/01/2010 in case No. 33-8370 states the following:

“if a local regulatory 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 can be seen from the case materials, the company did not develop or adopted a local regulatory act on the procedure for certification of workers. The order for the branch approved the regulation on the procedure for certification of employees of the convoy. The convoy is not a legal entity; it acts in accordance with the regulations that provide for the powers of the director of the branch, however, such powers as development, adoption and approval. There are no local regulations among them. 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 did not have the right to issue an order to approve the certification regulations. Based on the above, the dismissal of the employee under paragraph 3 of part. The first 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”, if a civil servant refuses professional retraining, advanced training or transfer to another position, the employer's representative has the right to release the civil servant from the position being filled 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 dismissing an employee directly based on the results of certification.

The list of decisions that can be made by an employer in relation to a civil servant based on the results of certification is defined in Part 16 of Article 48 of Federal Law No. 79-FZ of July 27, 2004, 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 job growth;

3) is demoted from the civil service position and is subject to exclusion from the personnel reserve if he is in it.

Unlawful actions during certification

Many employers expect to conduct certification in order to get rid of unwanted employees, regardless of the actual performance of their work activity. However, it is hardly possible to solve the problem of subjective hostility through certification, since such actions are illegal, the real motive for conducting certification is almost impossible to hide, and therefore the employer will not be able to avoid problems in the event of a labor dispute.

Not only the employer when using administrative resources, but also a biased attitude towards the employee on the part of his immediate supervisor can influence the decision of the commission in order to underestimate the final assessment of the employee’s work results.

To avoid this, the employee is given the right to familiarize himself with the review by his 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. An employee can also submit additional information about his work to the certification commission, for example, reports on completed tasks, final results of his activities, written explanations from other employees, etc.

Often, before certification, an employee is deliberately given instructions that are either obviously impossible to fulfill or do not correspond to his position, profession, or 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, recognizing the employee as unsuitable for the position held is illegal.

Also quite common violations of the certification procedure are:

As one example of an employer’s illegal actions when conducting employee certification, 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 certification dated June 18, 2014 as unfounded, the court proceeded from the fact that the certification materials do not contain references to the regulatory legal act regulating the procedure for certification of Museum employees (Regulations on the certification of employees, approved by the Director of the Museum on January 25, 2013); in the certification sheet and the decision of June 18, 2014 does not indicate the criteria that the certification commission was guided by when assessing the plaintiff’s suitability for the position held (the work performed); the conclusions about the plaintiff’s gross violations of labor legislation and instructions for museum activities are not motivated, and were not confirmed by objective data; 5 - for, 2 - abstained); it was not taken into account that during the period of work at the Museum the plaintiff had a number of incentives, was awarded diplomas for long-term conscientious work, including a Certificate of Honor from the Ministry of Culture of the RSFSR for her great contribution to the development of culture; attention to the fact that the plaintiff has a higher education with a degree in history and social studies (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 certification sheet it is essentially clear 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 Resolution of the Plenum of the Supreme Court of the Russian Federation states that the employer does not have the right to terminate an employment contract with an employee under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation if certification was not carried out in relation to this employee or the certification commission came to the conclusion that the employee is suitable for the position held or performed work.

These clarifications of the Plenum of the Supreme Court of the Russian Federation are not unfounded, since cases where workers 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, this situation was considered by the St. Petersburg City Court, which, in the cassation Determination of 01.02.2011 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 inadequacy of the position held, with In this case, certification for the plaintiff’s suitability for the position held or work performed was not carried out. To justify the dismissal, the employer referred to the plaintiff’s lack of a “Nursing in Dentistry” certificate. 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 employee’s insufficient qualifications are not confirmed by the certification results; the employer did not provide evidence indicating 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; The dismissal order does not indicate the basis for dismissal, i.e. there is no reference to documents with a number and date that are the basis for dismissal, which is a prerequisite for registration of dismissal; the employee was not familiar with the dismissal order and was also not familiar with the internal labor regulations and other local regulations of the employer, including the regulations on the certification of employees. Under these circumstances, the court reasonably made a decision to reinstate the employee at work.

Another case was considered by the Judicial Collegium for Civil Cases of the Penza Regional Court - Determination dated December 10, 2002 in case No. 33-2069, during which the court found that the fact of insufficient qualifications of the employee was not confirmed, and the certification, based on the results of which, could establish insufficient qualifications of the plaintiff were not carried out before his dismissal. The employer did not create a certification commission; the certification regulations were not developed or approved. The employer's Tariff and Qualification Commission did not have the right to resolve the issue of the employee's compliance or non-compliance with the position held; in addition, it sat in an unauthorized composition. The employer’s argument that certification is carried out in the manner prescribed by the rules of organization, work 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, according to which the Labor Code of the Russian Federation, laws and other regulatory acts containing labor law norms are mandatory for application throughout 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 employee’s knowledge and qualifications that were carried out by the employer cannot be grounds for dismissing the employee due to insufficient qualifications confirmed by the results of certification.

Considering the above, employers should not expect that conducting a “fictitious” certification without complying with all the requirements of the law will allow them to realize the task of parting with an unwanted employee.

Carrying out certification in the absence of an employee

Employers should not conduct certification in the absence of the employee in cases where there is no conclusive evidence that the employee has been notified of the date of certification.

As follows from the Determination 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 issued a notice to the employee about the need to arrive on 03/16/2009 to undergo certification. On March 12, 2009, the employer drew up an act stating that the employee refused to receive notification 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 employee’s qualifications 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 lack of confirmation from the employer that the employee was notified of the certification being carried out, the dismissal of the employee under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation was declared illegal and the employee was reinstated at work.

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Employees who, based on the results of certification, are recognized as not corresponding to the position held may not agree with the opinion of the certification commission and the employer’s decision to terminate the employment contract under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation.

If an employee dismissed on this basis goes to court, the employer will have to prove the fact of his inadequacy for his position or work performed, and this will require impeccably executed documents, which must be prepared during the certification process.

The employer should not expect that he will be able to produce the necessary documents in preparation for the trial, if only because many of such documents must contain the employee’s signature, which is subsequently impossible to obtain. Thus, the employer should take the certification procedure as seriously as possible from the very beginning.

If the employer’s staff does not have specialists with experience in conducting certification, the employer should contact TeKa Group LLC in order to receive the necessary and organizational assistance regarding the certification of employees.

Any question that arises on this topic can be discussed on the TeKa Group forum in the "" section.

The traditional system of employee certification under current legislation is understood as a procedure, the content and procedure of which is developed by the employer independently. There is no article entitled “Certification of employees for suitability for the position held.” However Labor Code, according to Article 81, determines that the certification procedure is established by the employer’s local regulations.

For example, certification of cultural workers is determined by the Procedure approved by the Deputy Minister of Culture of the Russian Federation, dated 02/08/2010 No. 7790-44/04-ПХ. This regulatory act, in particular, stipulates that employees who, due to the nature of their activities, do not require special skills or knowledge, for example unskilled workers, are not subject to certification.

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

Regulations on employee certification

IMPORTANT!

Since in 2019 the certification of employees is regulated by the employer, we recommend taking the Regulation on the procedure for certification, approved by Resolution of the USSR State Committee of October 5, 1973 No. 267, as the basis for developing an internal regulatory act.

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

We recommend that you approach the development of the document, which will be called “Regulations on Certification of Employees,” with care. In order to eliminate possible negative judicial practice, and also to ensure that the certification of employees for suitability for the position is as clear as possible to both employees and the employer himself, it is advisable to include the following sections:

1. General information.
2. Section on preparatory activities.
3. Section on certification.
4. Final provisions.
5. Applications.

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

General section

Step 1. Identify the purpose of the certification

For one employer, it will be enough to write that the purpose of this event is to determine the compliance of the employee’s qualifications with the position he occupies.

Another may set out the goal of rational use of the labor resources of their employees, increasing the productivity of their work and responsibility for the assigned work. Formulate clearly and specifically exactly the goal you are trying to achieve.

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

• objective assessment of the performance of managers and determination of its suitability for the position held;
• providing assistance in improving the efficiency of enterprises;
• stimulating the professional growth of enterprise managers.

Step 2. Determine the composition of certified workers

Taking into account that the legislation does not limit the employer in choosing categories of employees for their certification, we still recommend NOT including in the lists of those certified:

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

The rest of the staff can be certified.

For example, when certification of prosecutorial employees is carried out, the following are not included in the list of those being certified:

• pregnant women;
• those on parental leave (they can be certified six months after leaving leave);
• workers who have reached the age limit for being in service (if they have not made significant omissions in their work);
• officers in the reserve of the military prosecutor's office upon assignment to their initial class rank.

All other employees of the prosecutor's office are subject to certification in accordance with Order of the Prosecutor General of June 20, 2012 No. 242.

Step 3. Set the frequency of certification

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

For example, according to the text of Federal Law No. 342-FZ of November 30, 2011, certification of employees of internal affairs bodies is carried out once every four years.

Step 4. Specify the grounds for carrying out an extraordinary certification

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

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

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

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

Section on preparation for certification

This section must clearly and clearly indicate what steps and measures the employer and his subordinate officials must take.

Step 1. Determine the composition of the commission

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

The commission must have a chairman, ordinary members and a secretary.

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

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

The composition of the commission is permanent; changes can be made either due to a conflict of interest or due to personnel changes.

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

Step 2: Make a schedule

The certification schedule is a document that the employer draws up annually. Approved by a separate order. The schedule should be approved in advance in order to familiarize those undergoing certification with it.

The schedule indicates:

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

Step 3. Notify employees about the upcoming certification

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

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

If the employee refuses, a corresponding report is drawn up.

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

Step 4. Obtain the necessary personnel documents

Due to the fact that the certification commission makes decisions based on the documents provided, the employer has the right to independently determine which document and within what time frame should be provided to the commission.

This could be any requirement, like, say, a portfolio.

For example, until recently, teaching staff of state government social service institutions in the Leningrad region were required to submit for certification a portfolio of a social worker characterizing the results of their activities. However, it is worth noting that this requirement has now been canceled by Order of the Committee for Social Protection of the Population of the Leningrad Region dated January 21, 2013 No. 1.

Sample portfolio of a social worker for certification

In practice, most often the employer requires the commission to provide a reference or performance review of the employee, which must be prepared by his immediate superior.

The employee's characteristics must be read and signed. After review, this document is submitted to the certification commission.

IMPORTANT!

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

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

IMPORTANT!

Failure to provide a reference on time when the certification results are controversial is a formal reason for the court to declare the decision of the certification commission unlawful due to a violation of the procedure.

Section on certification

This section is a description of the step-by-step procedure for certifying employees at the enterprise.

Step 1. Determine quorum

To do this, the regulations must state that with the participation of two-thirds of the commission, its decisions are considered competent. If the number of commission members is smaller, the certification is postponed to another period determined by the employer taking into account the requirements of the described provision.

Step 2. Describe the procedure itself

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

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

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

After the decision is made, the employee is invited, and the chairman announces the decision of the commission to him.

Step 3. Securing the decision-making mechanism

IMPORTANT!

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

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

It is worth paying attention to the absence or presence of facts of violations of labor regulations and job responsibilities.

All doubts are interpreted in favor of the employee.

Step 4. Commission decision options

We describe what decisions the commission can make:

• the employee is suitable for the position held;
• send for training to suit the position held;
• petition the employer for an increase (salary, position);
• consider demotion to the current position due to insufficient qualifications;
• does not correspond to the position held, recommend sending him to training to improve his qualifications or dismiss him due to insufficient qualifications.

Step 5. We formalize the commission’s decision.

All decisions of the commission are documented in a protocol or entered into the employee’s certification sheet. It makes no sense to draw up both documents; in essence, they are the same thing, only the form is different. At the same time, no one forbids filling out both documents.

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

IMPORTANT!

Those members of the commission who were not present at the certification do not have the right to sign these documents. If they sign, this may serve as a reason to cancel the commission’s decision and initiate a criminal case under Article 292 of the Criminal Code of the Russian Federation.

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

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

Violation of deadlines entails cancellation of the decision by the certification commission.

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

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

Step 6. Employee rights

It is advisable to indicate that in case of disagreement with the results of the certification, the employee may appeal this decision in accordance with the procedure established by law.

Final provisions

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

The storage period for these documents is 75 years.

Sample regulations on employee certification

Sample schedule for employee certification

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