Dismissal of an employee based on the results of certification

Abstract

The essence of the employment relationship involves the expectations of the employer to receive labor of a certain quality and in a certain quantity from an employee. In addition, social and technological progress gives the employer the right to expect from the employee the appropriate development of skills, abilities and business abilities. As one of the means of stimulating employees to improve their work, the certification mechanism (periodic, etc.) is used. The legislator has established certain features of the legal regulation of relations between the employee and the employer in the event of a discrepancy between the employee and the position held by him or the work performed by him due to insufficient qualifications, confirmed by the results of certification. The article deals with the problems associated with the occurrence of a situation when the certification commission, created by the employer to assess the business qualities of an employee, comes to the conclusion that he is inconsistent with the position held by him or the work assigned by him due to various circumstances of an objective or subjective nature. The Labor Code of the Russian Federation assumes that the certification of employees should be largely regulated by local regulations, taking into account the requirements formulated at the industry and departmental levels. At the same time, there are problems in legal regulation that do not depend on the actions of the employer or the industry management state body. One of these is the problem of exercising the right of the employer to dismiss the employee in connection with the negative results of the certification. The author of the article draws attention to the provision of the Labor Code that dismissal on the grounds provided for in paragraph 3 of part 1 of Article 81 of the Labor Code of the Russian Federation is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or a job corresponding to the qualifications an employee, as well as a vacant lower position or a lower paid job) that an employee can perform taking into account his state of health.