Iryna Shlyakhovska
Senior associate at Legal Alliance Company
LigaZakon
Assessment of professional, organizational and business qualities of employees, their ability of performing tasks and functions in line with job description is important part of work with personnel at any enterprise. Performance appraisal of the staff is a sort of such assessment. Professional appraisal answers the main questions, such as compatibility or incompatibility of an employee with the office he holds. Performance appraisal allows an employer to see the employees’ performance to further decide on the level and form of employees encouragement, circle of employees to form staff reserve and approaches to planning professional and qualification promotion and career of specialists; leader and professional qualities at employee selection for key managing offices at the enterprise and its units; professional expertise and skills of the employees to make decisions on training organization.
General requirements for employee performance appraisal are set by the Law of Ukraine “On Employee Professional Development”.
Under Article 1 of the Law of Ukraine “On Employee Professional Development”, performance appraisal is a procedure for assessing compatibility of professionalism of employees with qualification requirements and job duties, assessing their professionalism.
Peculiarities of performance appraisal for some categories of employees are laid down in some regulatory acts, in particular the following:
Some ministries have approved some regulations on performance appraisal for managers, engineers and technical workers and experts who work in these ministries’ system, in particular:
Article 11(2) of the Law of Ukraine “On Professional Development of Workers” specifies that categories of workers subject to performance appraisal and its frequency are set by the collective bargaining agreement. At enterprises, in institutions and organizations without collective bargaining agreements, categories of workers subject to performance appraisal, terms and schedule thereof are determined by the employer upon approval with the elected authority of a primary trade union.
Thus, current legislation of Ukraine does not clearly determine categories of workers who are subject to performance appraisal.
However, the Law of Ukraine “On Professional Development of Workers” determines categories of workers who are not subject to performance appraisal, namely:
Performance appraisal of workers takes place 1 time in 3 years. Keeping the frequency is a compulsory condition for legitimate performance appraisal and its successful organization.
The performance appraisal is carried out upon the decision of the employer approving the regulation on the appraisal, composition of the appraisal committee and schedule of appraisal. Information about the performance appraisal is communicated to the employees no later than two months prior to its conduct.
The appraisal committee is composed of highly qualified experts and a representative of the elected body of the primary trade union organization. The immediate manager of an employee who is subject to performance appraisal cannot be a member of the committee. The employee's performance appraisal is conducted only in his presence. Immediate manager prepares a reference for each employee who is subject to appraisal. The reference is submitted to the appraisal committee after the employee gets familiarized with it, but not later than a week before the appraisal. Appraisal of the professionalism and qualifications of the employee on the grounds that are not directly related to the work is not allowed. Appraisal outcomes are displayed in the minutes of the meeting of the appraisal committee and in an appraisal letter. The decision of the committee is adopted by open vote by a simple majority of the members present at the meeting. A meeting of the committee is considered competent if at least two thirds of its members are present.
The appraisal committee makes a decision on compatibility or incompatibility of a person for the position he is holding or work he is performing. The decision is communicated to the employee and employer within 3 days upon its adoption.
If the decision confirms compatibility with the held position or performed work ,the committee may recommend that the employer include the respective employee in the staff reserve, assign another category, give a salary allowance or increase its amount, organize internship at a higher position or send for advanced training in order to promote him further.
In case a decision is adopted that the employee is incompatible with the position or work, the committee may recommend that the employer transfer the employee upon his consent to another position or work corresponding to his professionalism, or to send for training with further (no later than in a year) re-appraisal. The recommendations of the committee and the appropriate justification are communicated to the employee in writing.
In the event the employee objects to transfer to another position or work corresponding to his qualification, or to vocational training at the expense of the employer, the employer, upon the appraisal results, has the right to dismiss the employee in accordance with the Labor Code of Ukraine.
In accordance with Article 40(2) of the Labor Code of Ukraine, an employment contract concluded for an indefinite period, as well as a fixed-term employment contract, may be terminated by the owner or the body authorized by him, in particular, in the case of a revealed incompatibility of the employee with the position he is holding or work he is performing due to lack of qualifications which hinder the continuation of this work.
When dismissing an employee based on the results of the performance appraisal, it is necessary to take into account the position stated in paragraph 21 of the Resolution of the Plenum of the Supreme Court of Ukraine “On the Practice of Consideration by the Courts of Labor Disputes” No. 9 as of November 6th, 1992, which states that when considering dismissal cases under Article 40(2) of the Labor Code, the court may render termination of an employment contract valid if it is established that it took place based on data confirming that due to lack of qualification or health status (stable decline in the ability to work) the employee cannot properly perform his labor duties or their performance is contraindicated to health or is dangerous for the staff or citizens he serves, and it is impossible to transfer him, upon his consent, to another job. For these reasons, in particular, an employment contract with the head of an enterprise, institution, organization or unit may be terminated due to the inability to provide proper discipline of labor in a relevant entity. The conclusions of the appraisal committee regarding the employee’s qualification are to be assessed together with other evidence in the case.
The results of the performance appraisal let the employer dismiss an employee based on Article 40(2) of the Labor Code of Ukraine, as they contain objective data on the professionalism of the worker and the quality of work performed by him.
Also, it should be noted that in accordance with Article 44 of the Labor Code of Ukraine upon termination of an employment contract on the grounds provided for in Article 40(2) of this Code, the employee should be paid a severance equal to at least the average monthly earnings.
In the record of service, the following entry is made in column 3:
Dismissed due to the revealed incompatibility with the position due to inadequate qualifications, Article 40(2) of the Labor Code of Ukraine.
Thus, in case the employee is dismissed based on the results of performance appraisal, the following algorithm of actions can be proposed:
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