Dismissal for non-compliance with the position held: procedure and legal advice

It often happens that the employee does not correspond to the position that he occupies, because this becomes the first reason why the employer can dismiss the worker. Depending on what kind of relationship develops in the team and with the employee himself, they may be offered another job instead of one workplace. If the employee does not meet any criteria, then the employer can make a decision, which is called dismissal for non-compliance with the position. The problem, of course, is painful and requires a special approach. In this case, it is necessary to remember that everything must be correctly certified by documents, since in another case the employee will be able to challenge the decision and receive decent compensation for the moral damage caused. This happens very often.

What are the general provisions?

The Labor Code states that job mismatch is nothing more than a lack of qualifications for a specific job. But in fact, a person may be completely innocent of this, for example, he cannot perform work due to his health condition. Also, the administration of the enterprise should not dismiss a young specialist who has just arrived and does not yet have the proper work experience, for this article, only those specialists who do not have the proper education and the company suffers losses because of this. You cannot fire a person who is on vacation or is temporarily incapacitated. In all other cases, the dismissal due to a mismatch of the position held is real.

Who can be fired for mismatch

Before exempting the employee from the place of work, it is necessary to familiarize yourself with all the laws, as some points may be considered unlawful, and then the employer will have to pay a round sum of money in compensation. The main condition for hiring is that the future employee has certain skills, experience and knowledge, therefore, if all this is not available and the employee cannot perform his work at the proper level, and production incurs losses, it is quite realistic to fire the employee. In this case, it will sound like a dismissal under the article for non-compliance with the position.

Each employer has its own specific criteria and requirements that are being met, and the employee, before getting a job, is obliged to carefully read them. If qualifications are not enough, then he can gradually improve his level, otherwise the employer can conduct certification and familiarize the employee with its results in writing.

What are the grounds for dismissal?

All the reasons according to which a person can be fired from his post are divided into several categories:

1. An employee can hold a position, but at the same time be on sick leave for a long time. Dismissing a worker for this reason is very difficult, in which case he must have a very long incapacity for work, and if his illness is treatable, then the employee cannot be dismissed.
2. The second reason is low skill levels. Here, the employer may also encounter significant problems. The fact is that the employee can file an application for consideration with the court, because not everyone is satisfied with such a wording as dismissal for non-compliance with the position held.So that the employee can constantly improve his skills, the employer must send him to special courses. If, nevertheless, an employee does not improve his qualifications, then in this case it will be faithful to conduct certification to test the knowledge and skills of an organization employee. Certification is an examination, which is divided into two types: mandatory and optional leadership. For example, physicians must undergo mandatory certification during a certain period, and if the results turn out to be negative, then dismissal is made according to the certification results. Inconsistency of the post, as they say, is obvious in this case.

Who can not be fired for the mismatch of the position

There are several employees who cannot be dismissed due to non-compliance with the requirements of the position and the employer:

1. An employee who was on vacation at the time of certification.
2. Employees who are going on maternity leave.
3. Employees who can provide a certificate of illness for a long time.
4. Female employees who are already on maternity leave.
5. Single mothers who have children under the age of fourteen.

Special attention in the law is paid to employees who are minors. Dismissal under the article for non-compliance with the position in this case should be considered by the special labor authority.

Controversial issues that may arise during dismissal for non-compliance with the position

So that the dismissal does not cause too big problems for the employer, who decided to take advantage of the long absence of his employee due to his health condition, the manager will need to obtain special evidence, for example, certificates and a medical examination of the employee can be used, which will describe in detail all the health deviations. To get more accurate results, the employer has the full right to contact the employee to ask for an additional medical examination. Dismissal of an employee for a mismatch of the post after certification is also not always an appropriate option, the manager should give his subordinate the opportunity to improve, for this he will need to take additional courses and retake the exam again.

All controversial issues can be resolved in another way, for example, you can offer the employee a different position. If the employee does not want to start another job, then the employer can safely make the decision on dismissal. It is very important to know that the employer will have to protect himself in every sense of the word, therefore, the law recommends collecting all evidence in writing about the unsuitability of the employee. Dismissal for non-compliance with the position is a serious decision, therefore, all the professionalism of the employee must be properly evaluated. In this case, there can be no bias. To make such a decision, a special commission is created. All papers that will be issued for consideration by the commission must contain the signature of the employee, because after the employee goes to court, he can say that he did not pass any exams and courses. An employee may refuse to sign any documents, but in this case a special act must be drawn up, where other signatures will be located, indicating that there is no signature of the dismissed because of his refusal.

How is certification

If the employee does not pass certification, as required by law, then dismissal may occur following a mismatch of the position. Certification helps to verify the degree of qualification of employees, while there are a certain number of professions where certification is a prerequisite. It includes several stages:

1. The employees who must pass the certification are determined.
2. The members of the certification committee are determined, this should include representatives of trade unions, heads of departments, employees who are preparing to pass certification.
3. Be sure to create an order for certification. The order should be familiar to everyone who takes part in it.
4. The certification itself is carried out directly, where a characteristic is given for each employee who presents his report and shows his professional skills.
5. During certification, a special protocol is drawn up where all members of the commission take stock and put their signatures.

If an employee does not appear for certification for a disrespectful reason, then he does not automatically pass it, and the manager has every reason to apply for his dismissal under the article for non-compliance with his position.

Maintaining documentation is a very important point, because it is on the basis of it that the manager has every right to stop all cooperation with the employee and issue an order to end the employment relationship.

What can an employer do after certification?

If an employee has not passed the certification and has shown that he cannot fulfill the duties required of him, it is not at all necessary that this will be followed by the dismissal of the employee due to the mismatch of his position. Everything will depend on what decision the employer makes. For example, a manager may leave an employee at work, but require him to take additional courses and recertification. Also, the head can familiarize the employee with all the vacancies and offer to move to another position, which may be closer to the employee of the organization.

You can solve the issue in a more appropriate way for both sides. For example, few people will like the entry in the workbook about dismissal due to a mismatch of the position, and the employee may have problems finding employment in another organization. Therefore, in most cases, both the manager and the employee decide on dismissal by agreement of both parties with the wording "On their own."

How is the procedure for dismissing an employee?

As soon as the manager has a reason why he can fire his employee, be it a health problem or a failure to pass certification, a special order is issued. But the employer must necessarily study in detail the Labor Code of the Russian Federation, dismissal for non-compliance with the position requires also compliance with a special order. The boss may offer his subordinate to transfer to another position, if the organization does not have such an opportunity, then a written application will be required. An important factor is the fact that the decision to terminate the employment contract can be made after two months after certification. If the decision to relieve an employee of work has been made, then the organization shall issue a dismissal order. Inconsistency in the position held is indicated as the reason for termination of the contract. A citizen will be required to familiarize himself with this order and put his signature, after which he will receive the final payment on the last day of his work. All information that the contract has been terminated and the employee’s work in this organization is terminated is recorded in the work book, which is handed over to a former employee.

The algorithm of action in the process of dismissal

Dismissal due to mismatch of the post is quite a serious procedure. That is why the manager needs to adhere to the following steps:

1. It is imperative to conduct an exam, you can familiarize yourself with all the moments of such a test in the Regulation on certification.
2. Understand the employee and offer him other vacancies.
3. All the necessary documents are collected, which are the main reasons for dismissal, an order is still attached to these documents.
4. After the dismissal, a note is made that the employee has been dismissed, while the reason for his dismissal is clearly indicated. It is required to indicate that the employee could not cope with his duties and did not pass the certification.
5. Dismissal due to inconsistency of the position does not provide for any additional payments, the employee can rely on his salary and on payments for the vacation, if he did not have time to work him off.
6. All payments are made on the last day when the employee leaves, and all relevant entries in the work book are entered.

As soon as the dismissal procedure for non-compliance with the position is fulfilled, between the manager and the employee all labor agreements are terminated.

Litigation Cases

Often, a serious conflict arises between an employee and an employer, which is resolved solely through litigation. For example, an employee may not be satisfied with the certification results. In this case, the leader is recommended to be very careful about the dismissal of his employee. After all, an employee often does not need to prove anything that the employer simply survives it. But if the manager behaves correctly and provides the employee with other vacancies in the organization, and in case of refusal, he fixes everything documented, the court will certainly take this fact into account. In judicial practice, there are situations when the employer insists on the dismissal of the employee and does not allow him to pass certification, in which case the court will certainly be on the side of the employee. The court will ask the question why the head believes that the employee does not have the right to occupy this or that position, and a simple answer will not be accepted, since it will be necessary to provide evidence. If the court considers that the employer has exceeded his authority and his behavior does not correspond to the official relations, then the dismissed citizen can be reinstated in his post, and the head will still be obliged to pay monetary compensation for moral damage.

In considering such a matter as dismissal for non-compliance with the position held, the judicial practice also knows a lot of options when leaders turn out to be right and win the dispute. But the organization is required to take appropriate measures to make such a decision:

1. When hiring, the employee knew perfectly all the job descriptions that he had to perform at the proper level, while underneath is the signature of the employee himself.
2. The employee knew that the organization has a mandatory certification, and he was familiarized with the procedure for its implementation, but at the right time could not prove his qualifications. The certification results must also bear the signature of the employee.

If all the documents were collected properly over time, then the issue of dismissal will be resolved quickly and impartially.

Summing up, we can conclude that the dismissal for non-compliance with the position is a labor-intensive process and requires compliance with all legislative norms. The final decision on the dismissal of his employee can only be made by the head of the organization, so he is fully responsible for such a decision. The incompetence of an employee can lead to production defects, so the manager can impose penalties on his employee. Several such penalties will entail dismissal under a special article of the Labor Code, which cannot be challenged in court. You can solve the issue of dismissal amicably, for this the head of the organization can offer his employee dismissal at the mutual request of the two parties. In this case, everyone wins. An employee will be able to get to another place without any problems, and the employer will be able to avoid unnecessary difficulties.