Grounds and Procedure for Dismissal
According to Paragraph 2 of Article 40 of the Code of Laws on Labor of Ukraine dated 10.12.1971 No. 322-VIII as amended (hereinafter referred to as the "Labor Code of Ukraine") employment agreement may be terminated by the owner or its authorized body in case of employee inadequacy for his or her position or for the work performed due to insufficient qualification or state of health which hinder the work continuation, as well as in case when performance of the employee's duties requires access to state secret and such access becomes impossible.
Pursuant to the opinion of the Supreme Court of Ukraine contained in the Resolution of the Plenum of the Supreme Court of Ukraine dated November 6, 1992 No. 9 "On Litigation Practices Regarding Labor Disputes Adjudication" (hereinafter referred to as the "Resolution 9") a dismissal shall be considered unlawful if such dismissal took place due to the employee's inadequacy for the position exclusively for the reasons that the employee has no special education (diploma) provided that such education requirement is not prerequisite for work as stipulated in the employment agreement. However, in cases when the law requires that performance of certain kinds of work is allowed after a special right is granted (motor vehicle drivers, etc.), deprivation of such right may be a reason for the employee dismissal pursuant to Paragraph 2 of Article 40 of the Labor Code of Ukraine.
It should be mentioned that according to Section 21 of Resolution No. 9 the employment agreement with the manager of an enterprise, institution, organization or unit may be terminated under Paragraph 2 of Article 40 of the Labor Code of Ukraine due to the failure to ensure proper labor discipline in the appropriate structure.
Inadequacy for the occupied position or the work performed due to insufficient qualification may be a ground for dismissal only in case when the company owner has actual evidence that such insufficient qualification prevent the employee from performing his or her work duties and such employee cannot be transferred, upon such employee's consent, to another position.
Employee dismissal pursuant to Paragraph 2 of Article 40 of the Labor Code of Ukraine shall be made upon preliminary consent of the employee's trade union. According to Article 44 of the Labor Code of Ukraine the employee shall be paid a dismissal benefit in the amount not less than the average monthly salary.
Inadequacy for the occupied position or the work performed may be confirmed by the conclusion of certification commission in respect of the employee's qualification. According to the opinion of the Supreme Court of Ukraine the certification commission conclusion is not the only proof of the employee's inadequacy for the position occupied or the work performed and has to be evaluated by the court together with other facts of the case (clause 3 of Paragraph 21 of Resolution 9).
It is becoming more and more common for employers to introduce regular employee qualification procedures intended to verify employee proficiency and qualification. This verification is sometimes called employee certification. However, one should remember that such certification is only allowed in cases stipulated by the law (see details below), therefore employees who are not eligible to undergo the certification provided by the law cannot be dismissed pursuant certification results (verification) according to Paragraph 2 of Article 40 of the Labor Code of Ukraine.
Draft Labor Code dated 10.12.2009 No. 1108 submitted for consideration on the Verkhovna Rada of Ukraine in the second reading stipulates that an employer, where it is provided by the law, may organize regular employee certification to check proficiency and qualification and adequacy for the occupied position. Thus, the lawmakers still have the same approach to employee dismissal due to inadequacy for the position occupied or work performed based on the certification results.
Employees Subject to Certification
The principal legal act regulating the matter of employee certification is the Resolution of the Council of Ministers of USSR dated July 26, 1973 No. 531 "On Certification of Executive, Technical and Engineering Employees and Other Specialists at Enterprises and Organizations of Industrial, Construction, Agricultural, Transport and Communication Sector" (hereinafter referred to as the "Resolution 531"). According to the Resolution of the Council of Ministers of USSR dated August 22, 1980 No. 781, the effect of Resolution 531 was extended to enterprises and organizations of other national economy sectors, in particular to housing and utilities enterprises and domestic services enterprises.
According to Resolution 531 the certification procedure is determined by the Regulation the On Certification of Executive, Technical and Engineering Employees and Other Specialists at Enterprises and Organizations of Industrial, Construction, Agricultural, Transport and Communication Sector approved by the Resolution of the State Committee for Science and Technology of the Council of Ministers of USSR and the State Committee for Labor and Salary of the Council of Ministers of USSR dated October 5, 1973 No. 420/267.
The exemplary list of executive, technical and engineering employees and other specialists at enterprises and organizations of industrial, construction, agricultural, transport and communication sector and other national economy sectors who are subject to certification according to Resolution No. 531 is approved by the resolution of the USSR State Committee for Science and Technology and the USSR State Committee for Labor and Salary dated October 22, 1979 No. 528/445.
It should be noted that the above mentioned legal acts are effective pursuant to the Resolution of Verkhovna Rada of Ukraine "On the Procedure of Temporary Validity in the Territory of Ukraine of Certain Legal Acts of USSR" dated September 12, 1991 No. 1545-XII.
Apart from the mentioned legal acts, certification is regulated by specific provisions of a number of laws, in particular: the Law of Ukraine "On State Tax Service in Ukraine" dated December 4, 1990 No. 509-XII; the Law of Ukraine "On Scientific and Research and Technology Activities" dated December 13, 1991 No. 1977-ХІІ; the Law of Ukraine "On Education" dated May 23, 1991 No. 1060-ХІІ; the Law of Ukraine "On Vocational Technical Training" dated February 10, 1998 No. 103/98-VR; the Law of Ukraine "On General Secondary Education" dated May 13, 1999 No. 651-ХІV; the Law of Ukraine "On Extracurricular Education" dated June 22, 2000 No. 1841-ІІІ; the Law of Ukraine "On Electrical Energy Industry" dated October 16, 1997 No. 575/97-VR, and others.
The procedure for certification of certain categories of employees is specified by the respective provisions approved by the central executive agencies, in particular, by the Provision on the Procedure for Certification of Public Sector Workers of Executive Agencies" approved by the Resolution of the Cabinet of Ministers of Ukraine dated August 14, 1996 No. 950; the Provision on the Procedure for Certification of Managers and Specialists at Enterprises, Organizations and Institutions of Consumer Cooperatives of Ukraine approved by the Provision of the Board of Central Union of Consumer Associations of Ukraine dated August 12, 1993 No. 146; the Provision on the Procedure for Certification of Employees of Administration Authorities, Institutions, Enterprises and Organizations of the Ministry of Culture of Ukraine approved by the Order of the Ministry of Culture of Ukraine dated July 8, 1993 No. 145-k; Exemplary Provision on Certification of Education Professionals of Ukraine approved by the Order of the Ministry of Education of Ukraine dated August 20, 1993 No. 310; the Provision on the Procedure for Certification of Doctors approved by the Ministry of Health Protection of Ukraine dated December 19, 1997 No. 359; the Provision on the Procedure for Certification of Pharmaceutical Chemists approved by the Order of the Ministry of Health Protection of Ukraine dated July 31, 1998 No. 231; the Provision on the Procedure for Certification of Pharmacists approved by the Order of the Ministry of Health Protection of Ukraine dated July 31, 1998 No. 231; Instruction for Certification of Officials of Customs Authorities of Ukraine approved by the Order of the Head of the State Customs Service of Ukraine dated March 5, 1997 No. 100; the Provision on the Procedure for Certification of Executives, Engineering Employees and Other Specialists at Enterprises and Organizations of the Railroad Transport of Ukraine approved by the Order of the Ministry of Transport of Ukraine dated April 16, 1996 No. 127; the Provision on the Procedure for Certification of Managers of Production Associations and Mines of the Ministry of Coal Industry approved by the Order of the Ministry of Coal Industry of Ukraine dated September 24 No. 483; the Provision of the Cabinet of Ministers of Ukraine "On the Procedure for Certification of Managerial Personnel of Public Companies" dated August 27, 1999 No. 1571.
In order to organize and carry out a certification, the company manager has to make an order to hold the certification which needs to comprise the list of employees subject to certification, certification time and schedule and the quantitative and personal composition of the certification commission.
Certifications are held once in three or five years.
In execution of the order to hold certification made in respect of a particular employee subject to certification, the direct supervisor of such employee has to compose a personality characteristic (personal evaluation) approved by a senior executive.
The above-mentioned personal evaluations are submitted to the commission within the term stipulated by the respective provisions regarding the certification organization. Thus, according to the Provision on Procedure for Certification of Public Sector Workers the personal evaluation report has to be submitted to the commission at least one week before the certification.
An employee subject to certification has to get acquainted with the personal evaluation prepared in respect of such employee ahead of time, at least a week before the certification.
Generally, the certification takes place in the presence of the employee and his or her direct supervisor.
Pursuant to the results of certification of each particular employee who has undergone certification, the certification committee has to make one of the following decisions:
- The employee is adequate for the occupied position;
- The employee is adequate for the occupied position assuming that the performance will improve and the recommendations of the commission will be implemented which has to be confirmed by a new certification to be held in a year;
- The employee is not adequate for the occupied position.
In the event that the commission determines that the employee is not adequate for the occupied position, the commission may recommend to the company management to transfer the employee upon his or her consent to another position corresponding to his or her professional level, or to dismiss the employee.
Certification results are recorded in the minutes of the commission meeting and are entered into the certification sheet to be signed by the commission head and members participating in the voting.
The company manager has to make the respective order pursuant to certification results.
It must be emphasized that the company manager has to make the decision to transfer the employee to another position, upon his or her consent, or to dismiss the employee within two months after the certification took place. Such decision may not be taken after this term has expired. Sick leave and vacation of the employee shall not be included into such two month period.
Categories of Employees Exempt from Certification
Under the general rule, employees who have worked in a given position for less than a year; young post-graduate specialists during the period of dedicated obligatory employment provided that they were government scholarship students; pregnant women and women having children under one year of age, are exempt from certification.
The categories of employees who are exempt from certification may be extended in accordance with specific certification procedure provisions. Thus, according to the Provision on Procedure for Certification of Public Sector Workers, the employees exempt from certification are employees of community nursery service and those employees occupying a position for a period shorter than one year, except for public sector workers occupying their positions for a period shorter than one year due to organizational changes, provided that their job specifications remained unchanged. The Provision on Procedure for Certification of Research Workers requires no certification for active members (academicians) and associate members of the National Academy of Sciences, Ukrainian Academy of Agricultural Sciences, Academy of Arts, Academy of Medical Sciences, Academy of Pedagogical Sciences, Academy of Legal Sciences, as well as persons occupying research positions based on fixed-term labor contracts or working on a part-time basis. Likewise, the Provision on Procedure for Certification of Executives, Engineering Employees and Other Specialists at Enterprises and Organizations of the Railroad Transport of Ukraine releases from certification employees hired for the respective positions on a competition basis and part-time employees.
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