How to reduce the likelihood of conflict when dismissing an employee for a mismatch of his position
One of the reasons for the dismissal or removal of employees from work is the mismatch of the position. It is possible to dismiss under this article, it is only necessary to do it correctly, since workers can challenge this dismissal and easily recover at work, as well as receive compensation for moral damage. The article tells how the employer can reduce the likelihood of a conflict with an employee when he is dismissed due to a mismatch of his position
How to reduce the likelihood of conflict when dismissing an employee for a mismatch of his position?
Dismissal on this basis has a high risk of contestation and does not make it popular. In order to avoid this, the employer must act in strict accordance with the law.
The Labor Code of the Russian Federation provides that the dismissal of an employee in connection with a revealed inconsistency of an employee with the position or work performed due to insufficient qualifications (clause 3 part 1 of article 81 of the Labor Code of the Russian Federation). This basis is often equated with a guilty violation by an employee of his labor duties, which is categorically incorrect. The discrepancy due to insufficient qualifications can only be judged on the basis of the results of the certification. And not for one specific employee, but for employees of the entire organization.
By certification of employees is understood a periodic comprehensive check of the level of business, personal, and sometimes moral qualities of the employee in the relevant position.
Certification is carried out, as a rule, once in the interval from a year to five. The organization should have a provision on certification, a certification committee of persons having a professional understanding of the work of employees subject to certification should be created.
It should be borne in mind that dismissal on this basis is the right of the employer, therefore, if the certification commission receives an opinion “does not correspond to its position”, the employer may not dismiss the employee. However, dismissal of the grounds justified can only be considered legitimate if it is impossible to transfer the employee with his consent to another job. And if you have to dismiss a union member, a member must be a member of the certification committee
commissions from the relevant elected trade union body. Failure to comply with this rule gives rise to a court to recognize the results of certification as invalid. Another formality concerns situations when dismissing workers who are members of a trade union: it is necessary to take into account the views of the elected trade union body (part 2 of article 82 of the Labor Code of the Russian Federation).
When reporting the dismissal, it is necessary to give arguments, the employee should understand that this is not an emotional decision of the head, but a balanced decision of the certification committee. Labor legislation does not prohibit indulgence and offer dismissal at will.
What are some alternative ways to fire an unwanted employee?
In practice, there are a number of ways in which you can fire an unwanted employee.
Dismissal by agreement of the parties (article 78 of the Labor Code of the Russian Federation). Most often, the reasons for such dismissals are discussed tête-à-tête. But what if the unwanted employee does not want to quit? One way to force an employee to quit is to offer him some kind of severance pay or, in other words, monetary compensation. The severance pay upon dismissal by agreement of the parties is not provided by law, but the law does not prohibit its payment by agreement between the employee and the employer. Sometimes the parties agree to terminate the employment contract without compensation at all.
In my opinion, dismissal by agreement of the parties is the best option to terminate the employment contract. Firstly, it allows the parties to reach a compromise and remain satisfied with each other, secondly, it is the easiest to execute, and thirdly, this dismissal is the most “viable” if the employee disputes it.
Termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation). Based on practice, it can be noted that the most obvious reason is the desire of the employer to “get rid” of an unwanted worker.
Usually, forcing an employee to put a statement on the table with a desire to quit, the employer associates this aspect with several reasons: the employee cannot cope with his labor duties; the employee does poor work and other factors.
Most likely, if the employer forces the employee to write a letter of resignation of his own free will, he has no legal basis for this. The lion’s share of employers, taking advantage of the trustfulness and naivete of employees, makes them quit at their own request, in order to simplify this process and not pay the employee a severance pay.