The issue of inadequate position. Dismissal for inadequacy of the position held

The mismatch of the position is one of the reasons for the dismissal or removal of employees from work. During the crisis, many employers are thinking about how to get rid of inappropriate or not coping with their job duties. In some cases, you can think about transferring a citizen to another position. Especially if it's a responsible employee. If the frame does not really fit in all parameters, for the good of the whole corporation it is necessary to dismiss the negligent subordinate. Only to do this is necessary correctly. Otherwise, a citizen can easily recover, and even with an employer receive compensation for moral damage. Therefore, it is worthwhile to find out how the dismissal for incompatibility of the position held by the law is taking place. What is this? What rules should the employer follow in order to protect themselves from future problems.

The legislative framework

The first step is to find out whether there are any laws that allow you to get rid of an employee who does not meet the requirements of his position. This paragraph may be just the basis for reprimanding or improving the skills of the staff. Then the dismissal will be considered illegal. Employer of this phenomenon will bring a lot of problems.

Fortunately, dismissal for inconsistency of the position held by law can be carried out. This is indicated by the Labor Code, Article 81, point 3. Suspension from work in this case, as it is not difficult to guess, will occur at the initiative of the employer. But you have to follow certain rules of dismissal. Which ones? What should the chief do, who decided to get rid of the employee who does not cope with his job duties?

Proposal of another post

The answer to this question is not so simple. After all, each company provides its own rules on this matter. The issue of non-compliance with the position does not always end with dismissal. If the frame itself is responsible, but it does not suit the employer by some parameters, you can offer him a different way.

For example, a translation for another vacancy. This is not dismissal, so it is unlikely that an employee who knew that he is facing "resignation" will complain about the employer. If the employment contract stipulates the possibility of transferring a citizen to a different position, you can realize the idea. Only such situations occur extremely rarely. Often, employers think about the dismissal of a negligent frame.

Definition of non-compliance

What does it mean "incompatibility of the position held"? Understanding this expression is the first step towards the implementation of the dismissal. It is always important to know what characterizes one or another reason for exclusion from work.

The discrepancy of the post is the lack of the necessary skills and skills for the employee to perform the work assigned to him in a qualitative way. It is important that this phenomenon is manifested repeatedly. If it is a question of the new employee, it is necessary to give him time for training (in the absence of work experience).

Inconsistency should also be called the lack of any skills and qualities in the subordinate. For example, education. This is the most common reason why it is possible to carry out the procedure of firing the frame without any problems.

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 in which one should be worried about exclusion from a particular job due to non-compliance. It:

• health status;
• Lack of sufficient qualifications.

There are no more serious reasons. Great attention is required by the second point. It should be discussed separately. After all, the lack of sufficient qualification - the question is not so simple. And the dismissal of an employee for incompatibility of the position may be difficult. Although it is easier to find the reason that a frame can not cope with a particular job, than to remove it from office for health reasons.

In the first case, getting rid of an employee is not so easy. After all, the subordinate must endure a permanent disability, which will be a hindrance to the performance of certain duties. If health problems are corrected (for example, if you have visual impairments, you can wear glasses or contact lenses), the employer has no right to fire.

But that is not all. After all, in order to ensure that the process of removal from work has passed without problems for the chief, it is necessary to obtain documentary evidence of the health status of the subordinate. For example, to use his medical book: all the features and diseases of the frame are fixed there. You can ask the employee to undergo an additional medical examination, which will confirm the state of health by the time of potential dismissal. In this case, it is recommended to pay the commission and allocate time for the passage of doctors. You can not dismiss a vacancy for health reasons without proof. If an employee goes to court and can prove that the medical commission has confirmed the fact that he is healthy, management will necessarily incur a punishment.

Insufficient qualification

Now we need to understand the second weighty reason for dismissal. The thing is that inadequate qualification is the most common case of dismissal. Sometimes it is very problematic to prove that a citizen can not cope with the work entrusted to him for one reason or another. But to do this is easier than to dismiss for health reasons. Especially when it comes to a position requiring mandatory provision of a medical book and regular examinations by specialists.

Insufficient qualification is the absence of the necessary skills and skills that help the performance of the assigned work. Also here you can include education. It either does not correspond to the position held (the lawyer works as a doctor), or is completely absent.

In order to avoid problems in the future, the employer should seriously approach the issue of recruitment at the interview stage. After all, often when dismissed for non-compliance, the post dismissed refer to the court. And the judiciary takes the side of the subordinate. This happens when the employer was presented with a full resume, which clearly indicates the incompatibility of the job seeker. Correct selection of personnel will help to avoid this problem.

It is because of the qualifications that employees in companies should take special courses from time to time. This kind of training. They are called - refresher courses. Thanks to them, subordinates constantly improve their skills and skills, receive the necessary knowledge for work.

It should be noted that lack of qualification is a serious reason for dismissal from work and office. You can dismiss for inconsistency of the position, but you will have to check the skills and abilities of each subordinate. There are two concepts of testing - mandatory and optional.

Mandatory appraisal is provided not for all posts, but only for certain industries. For example, with employment in the field of government structures or medicine. In this case, all subordinates must pass from time to time attestation. Its failure is a documentary confirmation of the employer's right to dismiss a non-tested frame.

But the second type of attestation is carried out exclusively on the initiative of the chief. Only here, not everything is as simple as it seems. After all, in order to carry out unscheduled checks on the correspondence of 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 for testing. Without these documents, attestation is considered invalid.

Another point: the content of all the above documents must be fully reported to every subordinate. If the workers were not informed, then it would be pointless to raise the issue of incompatibility of the position due to lack of qualification. The test results can not be considered legitimate.

We should not forget that the evaluation of employees must be evaluated by someone. The administration of the company does not do this. The employer is obliged to form and approve the certification committee, which will be engaged in the study of the results of the audit of personnel. She also makes a decision about how the subordinates fit the company.

Not always

It has already been said that sometimes it is possible to offer cadres to apply for a transfer to another position, if it has been found that the post does not correspond to one or another post. At enterprises, where this possibility is provided, the situation with dismissal is much more complicated than where there is no transfer. What is the main problem?

The thing is that, in accordance with the Labor Code of the Russian Federation, it is possible to fire for an employee that does not fit in with any criteria, only in situations where there is no possibility of transferring the staff to a different 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 in connection with the inconsistency of the position may be considered illegal. More precisely, conducted in violation of the rules. If a transfer is envisaged, but it can not be implemented due to lack of space, it is necessary to draw up an act with which the dismissed person is acquainted. The latter must sign a notice stating that he is aware of the lack of free vacancies for translation.

To protect the company, it is recommended to offer the subordinates suitable for the translation job. And in case of refusal to draw up a special act, which will confirm that the employer previously tried to keep a place in the organization behind the scenes. Even if it's a different job. The main thing is that the new employee corresponded. The presence of an act and a written refusal of a subordinate for translation (usually a question of demotion) is an additional insurance for the employer. So, how to properly carry out the procedure for dismissal?

Is there a right

The first stage is the performance of attestation or familiarization with the medical report on the health status of subordinates. Once there is confirmation of vacancy mismatch, you can engage in immediate 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 correct dismissal of a subordinate. The third stage is the preparation of an act on the refusal of an employee to transfer (demotion) and receive from the staff a written confirmation of the decision. Sometimes you can do without the last item. Under similar 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 thinks about how to dismiss a person for incompatibility of the position, it is necessary to study the Labor Code. In some cases, the authorities on their own initiative have no right to suspend their subordinates from work. For example, the pregnant can not be dismissed at will of the employer. This is a direct violation of the law. This test should be given serious consideration. If it is confirmed that you can dismiss the frame, the procedure for registering a subordinate as a dismissed person continues.

Order

How can I dismiss an accountant for incompatibility of my position? Just like any other subordinate. After all the above steps, you need to issue an order, which refers to the dismissal of the frame. It must include the reason. Refer to Article 81 of the Labor Code of the Russian Federation, point 3. It is the vacancy mismatch that is prescribed in the order.

Further it is necessary to acquaint the dismissed person with the decision. The subordinate must place his signature on the order. In practice, few will agree to accept resignation under the article. Therefore, in case of refusal to sign the document, it is necessary to draw up an act on this. In this case, the employer will be able to protect himself from problems if the employee decides to complain about illegal dismissal.

After acquaintance or drawing up of the corresponding certificate the management of this or that company registers the order of the chief in a special magazine. It should record all orders for personnel for 75 years.

Calculation

How to dismiss an employee for incompatibility of his position? After all the above points, you must settle with a subordinate. This is another obligatory step. After all, every employer is obliged to pay cash for the time worked out at the time of removal from office. The subordinate receives a special account-receipt, which fixes the due payments. In some companies, it is envisaged to withhold a certain percentage of earnings upon dismissal under the article. This is also prescribed in the issued certificate.

The subordinate must appear in the accounting department with the document and receive money. If on the day of dismissal he is in the workplace, then the calculation is made instantly. In the absence of a citizen, the money put to the dismissed person is issued on the next day after applying to the accounting department for settlement.

Employment history

Business for small. After all, the basic procedure of dismissal is carried out in compliance with all rules. What else should I pay attention to? Can they be dismissed for incompatibility of their positions? Yes, but the employer is obliged to document its decision documented. Need proof of inconsistency. After all the steps listed above, you must give the employee his / her work book. Only in advance it is entered the corresponding record about the reason of dismissal from work. Reference is made to the Labor Code. You can write in the "labor" something like: "Fired under Article 81 clause 3 (" a "- on health or" b "- if there is no qualification) of the LC RF in connection with the incompatibility of the position held."

Further, the employer must make a copy of the work record book of the person being dismissed, and also put the appropriate mark in the personal card of the subordinate. Suspension from work on the article is a serious decision. And it does not have the best effect on the rating of the company. Therefore, copies of labor books of dismissed employees do not all. Entry of records into this document is a must. But copies are made at the discretion of the employer.

Often an employee refuses to receive a work book. How to act in this situation? The employer is legally obliged to issue a work book to the subordinate upon dismissal. Therefore, in order to fully answer how to dismiss an employee for incompatibility of a position, he will have to notify him in writing that it is necessary to obtain "labor". This is done by sending a registered letter with information. Further, an act on the refusal to receive "labor" is drawn up. Only such an algorithm of actions will help to fully protect the employer from violation of the process of suspension from the vacancy.

Can I be dismissed for incompatibility of my position? Yes, but you have to follow certain rules. After all, this issue is considered controversial. The employer needs to make considerable efforts to ensure 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 issuing the document by the employer.

Inquiries about incomes and military registration and enlistment office

The next item is optional, but desirable. It is about issuing a certificate of income in the form of 2-NDFL. By law, any employee (even the former) has the full right to demand this document from the employer. Therefore, it is recommended to prepare it in advance and issue it. For example, together with money for time worked.

The last thing to do is to check whether the subordinate is a conscript. If an employee does not serve on a regular basis, the employer reports on the dismissal to the military enlistment office. This rule applies only to men. It's much easier with women. They can issue a work book with a certificate of income and forget that the staff worked in the company. The dismissal of the employee for the inconsistency of the position held was carried out taking into account all the features. In case of complaints, you can prove the innocence of the employer.