Inconsistency of the position held is one of the reasons for the dismissal or removal of employees from work. During a crisis, many employers are thinking about how to get rid of an unsuitable or inconsistent employee. In some cases, you can think about moving a citizen to another position. Especially when it comes to a responsible employee. If the frame really does not fit in all respects, for the good of the entire corporation, you should dismiss the negligent subordinate. Just do it right. Otherwise, a citizen can easily recover, and even from the employer to receive compensation for moral damage. Therefore, it is worthwhile to find out how, according to the law, dismissal occurs for non-compliance with the position held. What is this all about? What rules should be followed by the employer in order to protect themselves from future problems.
The legislative framework
The first step is to find out if there are any laws that allow you to get rid of an employee who does not meet the requirements of the position. This paragraph can only be the basis for a reprimand or advanced training. Then the dismissal will be considered illegal. Such a phenomenon will bring a lot of problems to the employer.
Fortunately, dismissal for non-compliance with the post is legally possible. This is indicated by the Labor Code, article 81, paragraph 3. The removal from work in this case, as you might guess, will occur at the initiative of the employer. But you have to follow certain rules of dismissal. Which ones? What to do to the chief who decided to get rid of the employee who is not coping with his duties?
Offering a different position
The answer to this question is not so simple. After all, each company has its own rules in this regard. The question of the inconsistency of the position does not always end with dismissal. If the shot is responsible in itself, but it does not fit the employer in some ways, you can offer him a different way out.
For example, transfer to another vacancy. This is not a dismissal, so it is unlikely that an employee who knew that he was facing "retirement" would complain about the employer. If the employment contract stipulates the possibility of transferring a citizen to another position, you can put the idea into practice. Only such situations occur extremely rarely. Often, employers think precisely about dismissing a negligent staff.
Definition of non-compliance
What does the "inconsistency of the position" mean? Understanding this expression is the first step on the path to making layoffs a reality. It is always important to know what characterizes one or another reason for suspension from work.
Inconsistency of the post occupied is the lack of the employee’s proper skills and abilities in order to perform the work entrusted to him in a quality manner. It is important that this phenomenon manifests itself repeatedly. If we are talking about a new employee, it is necessary to give him time for training (in the absence of work experience).
The lack of conformity can also be called the lack of any skills and qualities of the subordinate. For example, education. This is the most common reason why without any problems you can carry out the procedure of firing the frame.
Causes
The reasons for the inconsistency of the position, according to the established laws, can be divided into several parts. In total, there are two real points at which to worry about removal from a particular job due to non-compliance. It:
- health status;
- lack of qualifications.
There are no more serious reasons. The second point requires great attention. It should be discussed separately. Indeed, the lack of sufficient qualifications is not an easy question. And the dismissal of an employee for non-compliance with the position may be difficult. Although to find the reason why the frame cannot cope with a particular job, it is easier than removing him from his post for health reasons.
In the first case, getting rid of an employee is not so simple. Indeed, a subordinate must have persistent disability, which will be an obstacle to the performance of certain duties. If health problems are corrected (for example, with visual impairment, you can wear glasses or contact lenses), the employer has no right to dismiss.
But that is not all. Indeed, in order for the process of suspension from work to go without problems for the boss, it is necessary to obtain documentary evidence of the health status of the subordinate. For example, use his medical book: there are recorded all the features and illnesses of the frame. You can ask the employee to undergo an additional medical examination, which will confirm the state of health at the time of potential dismissal. In this case, it is recommended to pay a commission and allocate time for doctors. It is impossible to dismiss for evidence of a mismatch in the vacancy due to health. If an employee goes to court and can prove that the medical commission has confirmed the fact that he is healthy, management will definitely be punished.
Inadequate qualifications
Now it is necessary to understand the second good reason for dismissal. The thing is that inadequate qualifications are the most common case of dismissal. Sometimes it is very problematic to prove that a citizen cannot, for one reason or another, cope with the work entrusted to him. But to do this is easier than to dismiss for health reasons. Especially when it comes to a position requiring the obligatory provision of a medical book and regular examinations by specialists.
Inadequate qualifications are the employee’s lack of the necessary skills and abilities that help to carry out the assigned work. It also includes education. It either does not correspond to the post (the lawyer works as a doctor), or is completely absent.
So that in the future there are no problems, the employer must seriously approach the issue of staff selection at the interview stage. After all, often when dismissed for non-compliance with the post, the dismissed go to court. And the judiciary sided with the subordinate. This happens when the employer has been presented with a full resume, which clearly indicates the discrepancy of the job seeker. The right selection of personnel will help to avoid this problem.
It is because of qualifications that employees in companies must take special courses from time to time. This is a kind of training. They are called - refresher courses. Thanks to them, subordinates constantly improve their skills and abilities, receive the necessary knowledge for work.
It is worth noting that lack of qualifications is a serious reason for removal from work and position. It is possible to dismiss for a mismatch of the position, but it will be necessary to provide a test of the skills and abilities of each subordinate. There are two concepts of testing - mandatory and optional.
Mandatory certification is not provided for all posts, but only for certain industries. For example, when employed in government or medicine. In this case, all subordinates are required to undergo certification from time to time. Its failure is a documentary confirmation of the employer's right to dismiss a frame that has not passed testing.
But the second type of certification is carried out solely on the initiative of the boss. Only here, not everything is as simple as it seems. Indeed, in order to conduct unscheduled inspections for compliance with the positions held, it is necessary to first develop acts and plans, local provisions that establish the procedure, form, evaluation criteria, as well as the time and conditions of testing. Without these documents, certification is considered invalid.
Another point: the content of all of the above documents should be fully communicated to each subordinate. If awareness of employees has not been carried out, then raising the question of the mismatch of the position due to insufficient qualifications does not make sense. Test results cannot be considered legal.
We should not forget that the certification of employees should be evaluated by someone. The company’s administration does not do this. The employer is obliged to form and approve the certification commission, which will be engaged in the study of the results of personnel checks. She makes a decision on how subordinates fit the company.
Not always
It has already been said that sometimes it is possible to offer personnel to issue a transfer to another position if it was revealed that they are not in compliance with one or another post. In enterprises where this opportunity is provided, the situation with dismissal is much more complicated than where the transfer does not take place. What is the main problem?
The thing is that, in accordance with the Labor Code of the Russian Federation, they can be dismissed for the fact that the employee does not fit according to one or another criteria only in a situation where there is no possibility of transferring the personnel to another position. In other words, if a person could be transferred to a new place of work within the corporation, but the employer decided to hide this fact, dismissal due to a mismatch of the position may be considered illegal. More precisely, conducted in violation of the rules. If a transfer is envisaged, but it cannot be carried out due to lack of space, it is necessary to draw up an act with which the dismissed person becomes acquainted. The latter must sign a notice that he is aware of the lack of free vacancies for the transfer.
To protect the company, it is recommended to offer subordinates suitable for the transfer of vacancies. And in case of refusal to draw up a special act that will confirm that the employer previously tried to keep behind the scenes a place in the organization. Even if we are talking about a different position. The main thing is that the employee corresponded to the new vacancy. The presence of an act and a written refusal of a subordinate to transfer (usually it is a demotion) is an additional safety net for the employer. So, how to conduct the dismissal procedure?
Is there a right
The first stage is the certification or familiarization with the medical report on the health status of subordinates. After confirmation of the non-compliance of the vacancy has appeared, you can deal with the direct dismissal of the frame. But before that, it is recommended to offer a transition to a more suitable place within the company. This is the second step towards the proper dismissal of a subordinate. The third stage is the preparation of an act on the employee’s refusal to transfer (demotion) and receipt of a written confirmation of the decision from the staff. Sometimes you can do without the last paragraph. Under such circumstances, it is recommended to have other evidence that the employee was offered an alternative to dismissal, and he refused it.
The fourth step is also considered an important moment. After all, if the employer is considering how to fire a person for a mismatch of his position, it is necessary to study the Labor Code. In some cases, superiors on their own initiative do not have the right to remove their subordinates from work. For example, pregnant women cannot be dismissed at the request of the employer. This is a direct violation of the law. This check should be given serious attention. If it is confirmed that the frame can be dismissed, the procedure for registering the subordinate as the dismissed continues.
Order
How to fire an accountant for a mismatch of the position? Just like any other subordinate. After all of the above steps, you must issue an order that says about the dismissal of the frame. Be sure to indicate the reason. It is necessary to refer to article 81 of the Labor Code of the Russian Federation, paragraph 3. It is the discrepancy of the vacancy that is prescribed in the order.
Next, you will have to familiarize the dismissed person with the decision. The subordinate must put his signature on the order. In practice, few people agree to accept the dismissal of the article. Therefore, in case of refusal to sign the document, an act on this should be drawn up. In this case, the employer will be able to protect themselves from problems if the employee decides to complain about the illegal dismissal.
After reviewing or drawing up the relevant act, the management of a company registers the order of the head in a special journal. It should record all orders for personnel for 75 years.
Payment
How to dismiss an employee for a mismatch of his position? After all of the above items, you should make a calculation with a subordinate. This is another mandatory step. After all, every employer must pay money for the time worked at the time of removal from office. The subordinate is issued a special invoice, in which the fixed payments are fixed. Some companies provide for the deduction of a certain percentage of earnings upon dismissal under the article. This is also prescribed in the issued certificate.
The subordinate must come to the accounting department with a document and receive money. If on the day of dismissal he is at the workplace, then the calculation is made instantly. In the absence of a citizen, the money allocated to the dismissed person shall be issued the next day after contacting the accounting department for settlement.
Employment history
Case for small. After all, the main dismissal procedure was carried out in compliance with all the rules. What else should you pay attention to? Can they dismiss for non-compliance with the post? Yes, but the employer is obliged to document his decision. We need evidence of non-compliance. After all the steps listed above, you should give your subordinate his work book. Only previously is it recorded in the appropriate record about the reason for dismissal from work. Reference is made to the Labor Code. You can write in the "labor" something like: "Dismissed under article 81 by paragraph 3 (" a "for health or" b "for lack of qualification) of the Labor Code of the Russian Federation due to a mismatch of the position."
Next, the employer must make a copy of the workbook of the dismissed, as well as put the appropriate mark in the personal card of the subordinate. Suspension from work on an article is a serious decision. And it does not affect the rating of the company in the best way. Therefore, not all do copies of the work books of dismissed employees. Making entries in this document is a must. But copies are made at the discretion of the employer.
Often, an employee refuses to receive a work book. What to do in such a situation? An employer is required by law to issue a work book to a subordinate upon dismissal. Therefore, in order to fully answer how to dismiss an employee for a mismatch of his position, you will have to notify him in writing that it is necessary to obtain a "labor". This is done by sending a registered letter with information. Further, an act of refusal to receive a "labor" is drawn up. Only such an algorithm of actions will help to fully protect the employer from violation of the process of removal from the vacancy.
Is it possible to dismiss for the mismatch of the post? Yes, but you have to follow certain rules. After all, this issue is considered controversial. The employer needs to make considerable efforts so that the process of removal from work is completely legal. If an employee is ready to receive a work book, he must put a signature in a special journal. She will confirm the fact of issuance of the document by the employer.
Income statements and draft board
The next paragraph is optional but desirable. We are talking about issuing a certificate of income in the form of 2-personal income tax. By law, any employee (even former) has the full right to demand this document from the employer. Therefore, it is recommended to prepare it and issue it in advance. For example, along with cash for hours worked.
The last thing to do is to check if the subordinate is a conscript. If the employee has not completed military service, the employer reports his dismissal to the military enlistment office. This rule applies only to men. With women, everything is much simpler.They can be given a work book with a statement of income and forget that the staff worked at the enterprise. Dismissal of an employee for a mismatch of the position held with all the features. In case of complaints, the employer can be proven innocent.