But he did not go to work: he changed his mind, fell ill ... In such cases, the legislation provides for the right of the employer to refuse such an employee - to cancel the employment contract. But, as judicial practice shows, employers apply this right both where it is necessary and where it is not necessary. Therefore, we recall in which cases it is possible to cancel an employment contract, what is the procedure for cancellation and how it is drawn up.

Mandatory conditions for cancellation.

The basis for the emergence of labor relations is an employment contract. It comes into force from the date of signing by the employee and the employer (part 1 of article 61 of the Labor Code of the Russian Federation).

The date on which the novice must start work may be fixed in the employment contract. For example, the contract was concluded on June 25, and the parties determined June 30 as the day to go to work. This is not prohibited by law.

If the employee and the employer have not determined the day of exit, it will automatically come on the next business day. That is, if the employment contract was concluded on June 25, it is necessary to start performing duties on June 26.

If new employee did not start work on the appointed day, art. 61 allows the employer the right to cancel the employment contract, regardless of the reason for the absence of the employee. The contract in this case is considered not concluded.

Note:

In the 2013 edition of this article, it was possible to cancel an employment contract only if the employee did not go to work without a good reason.

Pay special attention to the words "started work." They mean that in order for the employment contract to come into effect, the employee must not only come to work, but also begin to perform it. And if he did it for at least an hour, and then decided that it was “not his”, and left, the employer will no longer be able to cancel the employment contract. Rather, it can, but if the employee goes to court, the cancellation will be declared illegal. At the same time, some employers cancel employment contracts, even when the newcomer has managed to work for a week or more.

As already noted, they do not affect the validity of the cancellation of the reasons for the absence of the employee. That is, even if the employee fell ill and brought sick leave, the employer will be able to cancel the employment contract. Everything depends on his decision.

And finally (again, unlike the previous version of Article 61 of the Labor Code of the Russian Federation), the decision to cancel is not limited in time. Previously, it was possible to cancel an employment contract only within a week, now it can be done even after a month. The main thing is that during this time the newcomer does not come and start working. However, we do not recommend delaying the cancellation if such a decision has already been made.

There are two conditions necessary for a lawful annulment employment contract:

The presence of a concluded employment contract.

The employee did not begin to perform labor duties on the day that is for him the day the employment relationship began.

There are no other grounds for cancellation. Moreover, cancellation cannot be applied if the grounds for dismissal of the employee are different.

So, the employer (MOU SOSH) concluded an employment contract with a teacher. A few days later, an order was issued to cancel the contract. But the employer not only did not take into account that the employee had already worked a day, but also, having found out that the teachers had registered for the rate occupied by a part-time job, he fired the teacher under clause 11, part 1, art. 77 of the Labor Code of the Russian Federation - for violation of the rules for concluding an employment contract. In this case, both the annulment order and the dismissal under paragraph 11 of part 1 of Art. 77. As a result, the employee was reinstated (Appeal ruling of the Chelyabinsk Regional Court dated April 9, 2019 in case No. 11-4293/2019).

In another case, the employee filed a lawsuit to recover wages from the employer for the period worked. And the employer filed a counterclaim to recognize the employment contract as not concluded, since the employee did not submit a qualification document during employment. Of course, this was denied to the employer (see Appellate ruling of the Moscow City Court dated December 18, 2017 in case No. 33-52092/2017).

Design rules.

Although the procedure for issuing annulment is not established by labor law, it is necessary: ​​if you do not draw up any documents that cancel the employment contract, it will be considered valid. At the same time, the employment contract should not be destroyed, as some employers do, because the employee will have his own copy. Everything needs to be official.

Note:

Rostrud in Letter No. 5203-6-0 dated 12/19/2007 indicated that when an employment contract is canceled by an employer, an order is issued. In this case, no entry is made in the work book.

In any case, it is first necessary to establish the fact that new employee did not start his work. Such a document can be an act that is drawn up and signed by employees of the organization (at least three people), a memorandum, a memo drawn up by the head of the unit in which the newcomer was supposed to work, or a personnel worker.

Based on these documents, the employer has the right to decide on cancellation. However, we do not recommend canceling the employment contract on the same day, since the employee can still leave and start working. In this case, on the basis of the available documents (act, report), he can be dismissed for absenteeism (unless he was absent for a good reason).

Here is a sample act on the absence of an employee.

(MKU "Gorvodokanal")

that the employee did not start work

the day it started

06/24/2019 Novgorod

Compilation time: 17 hours 00 minutes.

We, the undersigned Head of the Human Resources Department Volkova O. N., Petrova M. V. and Secretary Klimova V. N., have drawn up this act stating that today, 24.06. dated 06/15/2019 No. 15 / 06-3 did not go to work on 06/24/2019 at the office located at Novgorod, st. Yamskaya, d. 5, and was absent from the workplace throughout the working day, namely from 8.00 to 17.00.

He did not answer phone calls.

Head of Human Resources Volkova O. N. Volkova

Chief Accountant Petrova M. V. Petrova

Secretary of Klimova V. N. Klimova

If the head of the organization decides to cancel the employment contract, an appropriate order is issued in any form. If the employer has already managed to issue an order to hire an employee, it will also have to be canceled. You can do these two actions with one command. Let's give an example.

Municipal state institution "Gorvodokanal"

(MKU "Gorvodokanal")

dated 06/26/2019 No. 26-k Novgorod

About canceling an employment contract

I ORDER:

Cancel the employment contract dated 06/15/2019 No. 15 / 06-3, concluded with lawyer Borisov Maxim Alexandrovich, due to the fact that he did not start work on the day it began, established by clause 1.2 of the employment contract on 06/24/2019.

Cancel the order on hiring Borisov M.A. dated June 24, 2019 No. 24-k.

To the specialist of the personnel department Gordeeva M.V. send a notice to cancel the employment contract to Borisov M.A.

The control of the execution of this order shall be entrusted to the head of the personnel department Volkova O.N.

Reasons:

Memorandum of the head of the personnel department Volkova O. N. dated 06/24/2019 No. 3.

The act that the employee did not start work on the day it began, dated 06/24/2019 No. 24/1.

Director Ilyin V. I. Ilyin

Familiarized with the order:

Head of Human Resources Volkova, O. N. Volkova

HR Specialist Gordeeva, M. V. Gordeeva

Despite the absence of requirements to familiarize the failed employee with the order to cancel the employment contract, we believe that this is necessary. Therefore, if he subsequently appears at work, he must be familiarized with this order under his signature. If he never showed up, you should send him a notice that the employment contract with him has been canceled, or a copy of the order. This must be done by registered mail with a notification and a description of the attachment.

Question:

Do I need to keep a canceled employment contract and a job order? If yes, how much?

The terms during which it is necessary to store documents on personnel are indicated in Art. 22.1 of the Federal Law of October 22, 2004 No. 125-FZ “On Archiving in Russian Federation»and the List of typical managerial archival documents generated in the course of activities government agencies, bodies local government and organizations, indicating the periods of storage, approved by the Order of the Ministry of Culture of the Russian Federation of August 25, 2010 No. 558 (hereinafter - Order No. 558). Canceled contracts are not named in these documents. Because the individual in the event of annulment of the employment contract and does not become an employee of the organization, we believe that this document can be attributed to the documents of persons not hired.

In accordance with paragraph 663 of Order No. 558, documents of persons not hired (questionnaires, autobiographies, personnel records, applications, letters of recommendation) are stored for 3 years.

If suddenly the employer contributed to work book employment record, it should be invalidated in the manner specified in paragraph 1.2 of the Instructions for filling out work books, approved by Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69.

Note:

You should not rush to make a job entry, the employer has 5 days for this (paragraph 1, clause 3 of the Rules for maintaining and storing work books, letters from Rostrud dated 19.03.2012 No. 395-6-1, dated 19.12.2007 No. 5203-6-0).

In addition, if the work book has remained with the employer (and most likely, the employee has already provided it when signing the employment contract), he is obliged to send the employee a notice of the need to appear for it or agree to send it by mail. We believe that notifications that the employment contract with the employee has been canceled and that the employee is invited to come for a work book can be combined into one. Here is an example of such a notification.

Municipal state institution M. A. Borisov.

"Gorvodokanal" St. Gorky, d. 5, apt. 12,

(MKU "Gorvodokanal") Novgorod, 123456

dated 06/28/2019 No. 28-06

Dear Maxim Alexandrovich!

Due to the fact that you did not start work on the day the work began, June 24, 2019, the employment contract with you dated June 15, 2019 No. 15/06-3 was canceled on June 26, 2019 and is considered not concluded.

We notify you of the need to obtain a work book in the personnel department of the Municipal Public Institution "Gorvodokanal". You can also agree to send the work book by mail to the address you specified.

Appendix: a copy of the order dated 06/26/2019 No. 26/k.

Director Ilyin V. I. Ilyin

It should also be remembered that at the written request of an employee who did not receive a work book after dismissal, the employer is obliged to issue it no later than 3 working days from the date of the employee’s request (Article 84.1 of the Labor Code of the Russian Federation).

If an employee is sick.

When the employer decides to cancel the employment contract with the employee, and he brought sick leave, the employee has sole right: to pay for it (part 4 of article 61 of the Labor Code of the Russian Federation).

If the employee, within 30 days from the date of cancellation of the employment contract, brings a certificate of temporary disability, the employer will be obliged to pay him the appropriate allowance for the first 3 days of disability (Article 5 of the Federal Law of December 29, 2006 No. social insurance in case of temporary disability and in connection with motherhood”).

The benefit is paid from the day on which the employee was supposed to start work until the day the employment contract was canceled, but not more than 75 calendar days(with the exception of tuberculosis).

Note:

The line of the sick leave sheet “Start date of work” remains empty if the employee works in the organization, and is filled in if the employment contract was canceled because the employee fell ill. In this line, you must indicate the date (day, month and year) from which the newcomer was supposed to start work (if the disease or injury occurred in the period from the day the employment contract was concluded to the day it was canceled).

In conclusion of the topic of cancellation of an employment contract, we note once again that only a concluded employment contract can be canceled and only when the employee has not started work. We also recommend that when concluding an employment contract, do not rush to publish immediately, you have 3 days for this, and even more so do not make an entry in the work book. Then, in the event of a newcomer's absence, it will be somewhat easier to cancel the employment contract.

By general rule the employee is obliged to start performing labor duties from the day specified in the employment contract. If the day of commencement of work is not specified in the employment contract, then the employee must start work on the next working day after the entry into force of the contract.

rule

An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

If the employee, with whom the employment contract has been concluded, has not started work on time, the employer has the right to cancel the employment contract (but is not obliged to do so). In this case, the employer is not obliged to find out the validity of the reason why the employee did not start work.

The canceled employment contract is considered not concluded.

However, the employer may decide that he will not cancel the employment contract. In this case, it is necessary to wait for the employee to return to work, find out the reasons for his absence and then make a decision depending on what explanations the employee provides.

If the reasons for the absence were disrespectful, the employer has the right to apply a disciplinary sanction to the employee, including in the form of dismissal for absenteeism.

If the reasons for the absence of the employee at work were valid (for example, he was sick), then labor Relations continue, and the employee is paid temporary disability benefits.

So, if the employee did not start work on time, the employer can:

Cancel the employment contract without finding out the reasons for the absence of the employee at work.

Wait for the employee to go to work and find out the reasons for his absence, in the future making a decision depending on the employee's explanations.

Expert group of the magazine "Handbook of Personnel Officer"

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Ask a Question

Getting a job: when should an employee start new duties?

Good afternoon!!! Tell me if the new employer signed the application for employment, and the employee old work is waiting for the payment of the annual bonus and only after that plans to write and work for 2 weeks. Q: Is there a set time limit for an existing employee to take on new responsibilities after signing the new employer's application??? Thanks in advance!!!

Lawyers Answers

Alexey Vladimirovich(04/04/2016 at 19:32:15)

Hello,

In accordance with current legislation, the presence or absence of a job application does not affect the emergence of an employment relationship between an employee and an employer. In itself, such a statement acts only as a document confirming the employee's request about. The only mention of it comes from Art. 65 of the Labor Code of the Russian Federation, in which this application, as well as other documents for employment, is provided by the future employee to the employer for registration with him. At the same time, the application for employment is not included in the list of mandatory documents provided by the employee. on employment is not legally approved. The company can develop its own hiring process. The employee can write such a statement by hand in any form or sign in a form developed by the company. An indispensable basis for the occurrence is an employment contract, which reflects all the conditions for the upcoming work, work schedule, and. It is on the basis of an employment contract, in accordance with Art. 68 of the Labor Code of the Russian Federation, the employer issues an order for employment. At the same time, upon admission to the state civil or municipal service, the submission of such an application for employment is mandatory. This is expressly provided for in Part 2 of Art. 26 of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation", as well as Part 3 of Art. 16 of the Federal Law of March 2, 2007 No. 25-FZ "On Municipal Service in the Russian Federation". However, even when entering the state civil or municipal service, the fact of submitting such an application or its endorsement by the future employer does not mean at all that they will necessarily conclude an employment contract with you within a certain period, and will not choose another applicant. Therefore, I recommend discussing separately the issue of the term of employment directly with the future employer in order to obtain guarantees of employment.

Fesenko Nina Viktorovna(04/04/2016 at 19:32:18)

Good afternoon. Labor relations between the employee and the employer arise from the conclusion of an employment contract, which specifies the date when the employee begins to perform his duties. Signing an application does not yet entail any employment relationship, since an application for employment is not a mandatory procedure for many organizations, because the Labor Code of the Russian Federation does not provide for the submission of such an application. Therefore, under an agreement with the employer, you can postpone the signing of the employment contract or indicate in it the date when the employee can begin to perform his duties.

thanks for positive feedback and rate my answer.

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Oleg Eduardovich(04/04/2016 at 19:46:28)

Good afternoon.

According to Art. 61 of the Labor Code, an employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

As a general rule, an employee who has concluded an employment contract is obliged to start work on the next working day after the entry into force of the contract. However, the commencement of work may be defined differently, in which case the employee is obliged to start performing work duties from the day specified in the employment contract. Part 4 Art. 61 of the Labor Code provides for the consequences of failure to appear at work on time. If the employee does not start work on the day of commencement of work, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded and the employer does not bear any obligations in relation to the employee who did not start work on time.

Anatoly Igorevich(04/04/2016 at 20:07:36)

Hello, I can briefly explain the essence of your question as follows:

The signing of the application by the employer does not entail the emergence of labor relations, since the application for employment is, in fact, not a mandatory procedure for many organizations, because the Labor Code of Russia does not provide for the filing of such an application. Therefore, under an employment contract with an employer, you can postpone the signing of an employment contract itself or indicate in the contract the date when the employee can begin to perform his duties., Art. 61 of the Labor Code of Russia, an employment contract comes into force from the day it is signed by the employee.

Good luck to you!

Mityushina Anastasia Sergeevna(04/04/2016 at 22:04:23)

Hello!
According to Article 16 of the Russian Federation, labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Labor Code of the Russian Federation.
Article 57 of the Labor Code of the Russian Federation, the date of commencement of work must be indicated in the employment contract. On hiring, the employer issues an order on hiring, issued on the basis of a concluded employment contract, which also indicates the date of commencement of work (Article 68 of the Labor Code of the Russian Federation, in the form T-1 approved by the Resolution of the State Statistics Committee of Russia dated 05.01.2004 No. 1).
Thus, a job application without being binding document, does not confirm the beginning of the emergence of labor relations between the employee and the employer.
However, if the employer refuses to conclude an employment contract, it may serve as evidence of an unreasonable refusal to conclude an employment contract.
In practice, the representative of the employer must offer you to appear for the processing of documents on a certain day, and if you wish to process them, this offer should not be ignored. Otherwise, by your actions, you will make it clear that you are not interested in.
C, you have the right to specify the date of termination of the employment relationship (earlier than 2 weeks from the date of the application for dismissal in accordance with Article 80 of the Labor Code of the Russian Federation).

The employer, when hiring a new employee, is sure that he will begin to fulfill his duties from the moment specified in the contract. However, if the exact date is not specified in the contract, then work should begin on the next day after signing. Thus, the employee can begin to perform his labor duties only after the entry into force of the contract.

However, there are situations when an employee went to work, but the papers were not signed. In this case, the employment contract is considered concluded from the moment when the employee actually began to perform duties with the consent or on behalf of the employer.

It would seem that everything is simple and logical: the employer found an employee, concluded an agreement with him, and the new employee comes to work at the appointed time. However, it doesn't always work out as planned. What to do if you are waiting for an employee, but he does not come, does not call, and generally has sunk into the water? The reasons for not showing up for a new job can be very diverse: illness, absence from the city, another job, etc. You can wait for the employee to leave or cancel the employment contract with him. The possibility of canceling an employment contract does not depend on whether there was a valid reason for absenteeism, and the employee warned about it or not. The employer makes the decision at his own discretion.

Labor legislation does not contain a time frame within which a decision must be made. For example, an employer may cancel a contract several months after a new employee has not appeared. However, if you are sure that the employee will definitely not come out or he is on long-term treatment, then you should not delay making a decision.

When canceling an employment contract, an employee is not deprived of the right to receive mandatory social security if an insured event occurs between the date and its cancellation.

note

If the employee is actually admitted to the performance of his labor duties, then the employer is obliged to conclude a written employment contract with him no later than three working days from the start of work.

Benefits must be paid in the manner prescribed federal law of December 29, 2006 No. 255-FZ and Decree of the Government of the Russian Federation of June 15, 2007 No. 375. Payment is made for those days of illness that fell on the period from the date of conclusion to the moment of cancellation of the contract.

Please note that the contract that the employer canceled is considered not concluded, not terminated.

Registration procedure

Cancellation of the employment contract should be documented. If the employee did not leave on his first working day, this does not mean that he will not appear in the future. Article 67 Labor Code the employer and employee then have their own copy. If the employer threw out all the documents that are associated with the employee, and he showed up with his copy, then it will not work to refer to the cancellation of the contract. In this situation, the employer will be able to dismiss the employee only on a general basis.

When canceling an employment contract, it is necessary to record the fact of absenteeism of the employee. This will prove you right if there are any disputes later on. To fix absenteeism, you need to draw up a memorandum (the absence of such a note does not affect the legality of the cancellation procedure) and an act of absenteeism of the employee on the first day of work. The act can be written as follows:

“Today, 12/17/2012, at 5:55 p.m. me, general I.I. in the presence of P.P. Petrov and Secretary S.S. Sidorova drew up this act stating that the driver V.V. Petrushkin did not start work on the day the work began, 12/14/2012, the condition for which was included in the employment contract dated 12/13/2012 No. 123.

The reason for the absence of P.P. Petrushkin is unknown.

There is no need to rush to cancel the contract on the first day of the absence of a new employee. Better to wait until the next day. After all, an employee can show up at work not only in the morning, but also in the afternoon and in general throughout the working day. In this case, the employer will not have the right to cancel the contract. He can only apply disciplinary action.

On the basis of a memorandum and an act, an order is issued to annul the employment contract. There is no generally established form of the order; therefore, it is compiled and issued in an arbitrary form. For example, you can write the following entry:

“Due to absence from work on the first working day, determined by the employment contract dated 13.12.2012 No. 123 of the driver P.P. Petrushkin and on the basis of Art. 61 of the Labor Code of the Russian Federation

I ORDER:

1. Cancel the employment contract dated 13.12.2012 No. 123;

2. Cancel the order for employment dated 12/13/2012 No. 73.

Reason: act on the employee’s absence from work on the first day of work dated December 17, 2012 No. 1.

When hiring, often along with an employment contract, they also draw up an order for admission, a personal card and fill it in. This is done in order to avoid unnecessary red tape, but when canceling the contract, these actions can add extra work.

In accordance with labor legislation, the employer is obliged to keep a work book for each employee who works in the organization for more than five days. Rostrud, in a letter dated March 10, 2012 No. 395-6-1, indicated that if an employee has not started work, then a job entry is not made in his work book. Also, Rostrud, in a letter dated December 19, 2007 No. 5203-6-0, reported that in the absence of a job entry in the work book, there is no need to make an entry on the cancellation of the employment contract. If the entry has been made, then it should be invalidated. An incorrect entry in the book is corrected at the place of work where it was made, or by the employer on new job based on an official document from the organization that made the mistake. If there is a register of employment contracts, an entry on the cancellation of the contract should also be made in it. If an employment order was issued, then the order to cancel the employment contract should state that it is canceled.

After completing all required documents an entry is made in the employment contract about its cancellation.

Then you should notify the employee about the cancellation of the employment contract. To do this, the employer must draw up a letter of notification and attach copies of the order to cancel the employment contract and a document that records the fact that the employee was absent from work on the first working day. These documents must be sent by letter with acknowledgment of receipt.

If the work book is with the employer, then it is also necessary to send a notice of the need to appear for it. When sending such a notice, the employer is released from liability for the delay in issuing the book.

I.D. Shilov, lawyer

If the termination of an employment relationship does not occur due to the expiration of the contract or as a result of termination of the contract, and the relationship is terminated without having begun, then a procedure referred to as the cancellation of the employment contract is assumed. What does this term mean, and what actions of the parties are expected in this case?

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What it is

Such a definition as "cancellation of an employment contract" can be found in the Labor Code of the Russian Federation. According to this provision, the moment from which the employment contract is considered valid is determined. It also indicates who and for what reason has the right to cancel an already concluded contract.

Cancellation of an employment contract means that the previously signed document loses its legal force, that is, any agreements under the agreement become invalid.

The legislation also states that the employer is free to cancel the concluded contract if the other party has not begun to fulfill the assigned duties within the agreed time.

To determine the legitimacy of cancellation, it is necessary to accurately determine the moment of commencement of the contract.

In accordance with generally accepted rules, an employment contract is considered to have entered into force from the date of signing. With all that, another date may be indicated in the contract.

So the document may indicate the exact number or simply state that the contract is considered valid from the moment the employee is actually admitted to the sale official duties.

It is necessary to indicate that the date the document comes into force and the date the employee is admitted to work are two different representations. In the last episode, this is considered the first working day, predetermined by the contract.

If the date of commencement of its validity is not specified in the document, then it is considered by default that the employee must begin his duties on the next day after the conclusion of the contractual agreement.

In what cases is it allowed

The early possibility of annulment of the contract suggested the presence of such reasons as:

• the employee's absence from work on the day specified in the contract;
• the absence of an employee during the week;
• existence of unreasonable grounds.

The cancellation procedure for this time is carried out, as before, taking into account Article 61 of the Labor Code of the Russian Federation (), however, taking into account the amendments made.

Today, to cancel the contract, it is enough:

• if the employee did not show up for work within the period specified in the contract;
• a new employee is absent during the first day, it is not required to wait a whole week to cancel the contract;
• that the reasons for non-attendance do not matter, even if the employee can prove that the reason for his absence is valid, the employer may cancel the contract;
• the desire of the employer in the presence of the above conditions, but he may not exercise his right and retain legal relations.

According to the new amendments, the annulment of an employment contract is currently the prerogative of the employer.

That is, the law does not impose on him the mandatory termination of relations with an employee who did not appear or was absent for any reason.

If the employer wishes, he has the right to wait for the appearance of a "newcomer" for as long as he considers it necessary.

A disciplinary sanction determined by law can be imposed on a delinquent employee by continuing an employment relationship with him, but this is not considered mandatory and remains entirely at the discretion of the manager.

Procedure

Some managers believe that in order to cancel the concluded employment contract, it is quite enough to destroy the document.

But at the same time, many forget that the employee retains his copy of the contract and it continues to be a legal document.

And since the employee’s absence from work has not been recorded in any way, he will continue to be on the staff of the organization.

Although so far there are no such precedents in judicial practice did not meet, but in principle nothing prevents the employee after some time from declaring that he fulfilled his duties and wants to receive the agreed payment, as well as all the payments stipulated by the contract.

For the legal cancellation of an employment contract, the entire sequence of the procedure must be observed:

• if the employee did not show up for work within the first day, the process of canceling the previously concluded contract can be started;
• a person who is an employer, or an authorized representative of such, is obliged to issue an order to annul the employment contract. Moreover, it is required to make a proper note in the employment contract. For example, “The employment contract was canceled due to the absence of the employee on the first working day”;
• if an order for hiring an employee for a position has already been issued, it should be canceled. In this situation, the employer has the right to issue an appropriate order in the form of a separate cancellation order or make an appropriate entry on the contract itself and certify it with the signature of an employee of the personnel department;
• if an employment record was made in the work book of the employee, it must also be canceled by making a corresponding entry. Then the work book must be returned to the employee upon his request.

How to make an order

When canceling the contract, the direct employer is obliged to issue an order. In principle, an annulment order can be given to a human resources officer orally. However, in order to avoid controversial situations it is better to make everything as formal as possible.

First of all, a memorandum from the immediate supervisor of the employee who did not appear should be submitted to the name of the head of the organization.

It should be written in it that such and such an employee did not begin to carry out his immediate duties on the first day of the start of work. Attached to the note is an act certifying this fact.

The leading person, after reading the memorandum, puts his resolution on it, and then transfers it to the personnel department.

The cancellation order itself can be issued in free form. But, nevertheless, it must indicate the basis for the cancellation of the document. If an order for employment was previously created, then the document allows you to cancel this order.

There are no special requests to familiarize the employee with the cancellation order in the legislation.

But if he nevertheless showed up at work, then it is advisable to acquaint him with the document. If the employee refuses, it is recommended to record this with the appropriate act.

If the employee never showed up, you need to send an order to cancel the employment contract by registered mail with a mandatory notification and a list of all attached documentation.

After the cancellation procedure is fully completed, the employee of the personnel department must make a note on the canceled document - “The employment contract was canceled by order number such and such, from such and such date”, and then witness the inscription with the signature and seal of the organization.

Features of cancellation of an employment contract due to absenteeism

It is not advisable to cancel the contract during the first day. According to the legal requirements for the legitimacy of the procedure, the employee must not start work during the first day.

That is, in fact, an employee can come to workplace and shortly before the end of the working day, and formally this will be considered an appearance on the date set by the contract.

In this case, it seems more legitimate to impose disciplinary action up to dismissal for absenteeism.

It is best to start the cancellation process the next day after the employee's absence. In this case, it depends only on the employer whether he wishes to cancel the contract or not.

If an employee who did not show up for work on his first working day appears the next day or some time later and at the same time explains his absence with good reasons, the employer has the right to continue the employment relationship.

Punishing an employee for absenteeism or not also remains the right of the employer. However, although the employer is not obliged to cancel the contract if the employee fails to appear, it must be remembered that while the document is recognized as legal, the employee continues to be registered in the organization and he is entitled to all social benefits predetermined by law.

At the initiative of the worker

It is not uncommon for an employee to apply for a job, sign an employment contract, but on his first working day he realizes that the work absolutely does not meet his expectations or he cannot fulfill the obligations assigned to him under the contract. In this case, the employment contract may be canceled at the initiative of the employee.

In this case, the cancellation of the contract can be carried out in two ways:

• the employee writes an application addressed to the employer with a request to cancel the contract previously concluded with him, indicating the number of the document and the date of its signing;
• an agreement is concluded between the employee and the employer on the annulment of the concluded contract. In this case, it is necessary to indicate in the agreement that the parties do not have mutual claims.

Application forms and agreements are not unified by law. Therefore, they can have an arbitrary form. Nevertheless, it is necessary to take the wording responsibly, so that in the future it would be impossible to interpret them in two ways.

The cancellation procedure after filing an application or entering into an agreement is similar, that is, an order is issued and all necessary actions are taken to cancel the entries made.

Labor disputes

Based on the existing judicial practice, it can be concluded that, despite the amendments to labor legislation and the freer position of the employer, in litigation, any unclear points are interpreted in favor of the employee if he is the plaintiff.

In the process of litigation, the employer may be required to provide documents proving the reality of the conclusion of the contract, the absence of the employee at the workplace on the first day and the annulment of the employment agreement.

In order to, in the event of conflict situations, the employer could prove his case, he needs to take care of this before the dispute arises, in particular:

• a memorandum should be received from the immediate supervisor of the employee in the name of the manager, indicating that the employee is absent or that he has not yet begun to perform his duties;
• it is imperative to record the fact of the employee’s absence from work on the first working day or the fact that he did not start to perform his official duties by an act. Compose this document should employee personnel service in the presence of witnesses, of whom there must be at least two. There are no strict requirements for drawing up an act. However, it should indicate - data about the employee, date, time and place of preparation of the document, short description circumstances;
• an order to cancel the contract must be issued and an order to enroll must be canceled;
• a letter should be sent to the address of the employee specified in the contract with a notice of cancellation of the order and a request to pick up his work book.

According to the law, after hiring an employee, the employer must make an appropriate entry in the work book within five days after the issuance of the relevant order.

But if the entry was made on the very first day, then when canceling the contract, it is imperative to cancel the entry made on.

It is possible to make an entry of the following type: “The entry under the number such and then shall be considered invalid on the basis of an order to cancel the contract.”

What are the legal implications

According to the amendments made to labor law, the canceled employment contract is counted as not concluded.

Therefore, there are no legal consequences. By law, the contract begins to be considered valid after the parties involved have reached an agreement on all the existing conditions.

Therefore, if the employee did not begin to fulfill his labor duties within the period specified by the contract, then there can be no talk of any agreement.