The employee changed his mind about working in a new place? How to cancel an employment contract and employment relationship. We cancel the employment contract The contract did not start work

Job interviews were attended by a significant number of people who “applied” for jobs. After talking with the deputy director of personnel and the head of the shop, many of the applicants, psychologically exhausted by the search for work and refusals in other places, agreed to both low wages and rather tedious work in production. An employment contract was concluded with the future employee, and in the morning, on the day he was supposed to start work, an order was issued and his personal T-2 card was filled out. However, upon entering the workshop and hearing the explanations of the master about what he, the former salesman, manager, etc., should do, a person who is completely unfamiliar with work in production and, in general, is not mentally prepared for it, and even for a meager salary, rushed in horror away from the workshop to the personnel department, begging him to return the work book, withdraw (and sometimes even tear right in front of him (!) the order for employment and never again remember his worker existence.

Sometimes the situation has changed somewhat. After an interview with a future employee, an employment contract was signed, but on the appointed day, he simply did not appear at work. Attempts to find out what happened to him by calling the contact number indicated in the contract led to only one single result. "I changed my mind!" - declared the "hope" of the printing business. Or: "I found another job."

In both cases, the deputy director for personnel gave a not entirely legitimate instruction to the personnel department to withdraw, tear and throw away the relevant documents about the employee, and if there were gaps in the numbering of the documentation (for example, the same employment contracts) - to state their thoughts on whether what they could be filled with.

If you also sometimes or quite often find yourself in a similar situation - then this article is for you.

Novels of the labor code

After the introduction in October last year of amendments to the Labor Code, Part 4 of Art. 61 of the Labor Code of the Russian Federation on the annulment of an employment contract has changed almost beyond recognition. For the convenience of conducting a comparative analysis, we present the old and new editions of this article in tabular form. At the same time, the words that disappeared in the old version of the article are crossed out, those that appeared in the new version are highlighted in italics.

Table 1

The old version of Part 4 of Art. 61 Labor Code of the Russian Federation

New edition of Part 4 of Art. 61 Labor Code of the Russian Federation

If the employee did not start work on time without good reason within a week, then the employment contract is canceled.

If the employee does not start work in the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.

So what has changed? One amendment is, so to speak, "cosmetic" in nature. If, according to the old version, the employee was supposed to start work in the established(perhaps, as it seemed to the legislator, it is not clear by whom and where) term, then based on the new - on the day the work began, established in accordance with Part. 2, 3 Article. 61 Labor Code of the Russian Federation.

Ch. 2, 3 Art. 61 of the Labor Code of the Russian Federation "Entry into force of the employment contract"

The employee is obliged to start performing labor duties from the day specified in the employment contract.

If the employment contract does not specify the day of commencement of work, then the employee must start work on the day following the entry into force of the contract.

The rest of the changes are fundamental.

Consider not closed!

Firstly, the legislator clarified that an annulled employment contract is considered not concluded. In practice, this means that the canceled employment contract, as a general rule, does not give rise to any legal consequences, with the exception of the employee's right to social security benefits (for more details, see the text under the subheading "Eligibility for benefits"). Accordingly, the order for employment (if it was issued) is canceled. It is not necessary to issue an “order” to dismiss an employee. Also, an entry in the work book is subject to cancellation, if the personnel officer managed to make it.

Day, not week

Secondly, in the past, in order to cancel an employment contract, it was necessary for a new employee to be absent for a whole week. Now the employer can "get rid" of the "extra" employee in the state, if he did not start work on the first day. There is no need to wait another 6 days. Although, if the head of the company hopes that the employee will still make the organization happy with his work in it, the employer can wait for him as long as he wants. And cancel the employment contract after, for example, a month, making sure that there is no longer any hope for the appearance of a new employee.

Reasons for absence? Any!

Thirdly, the previous version assumed the existence of disrespectful reasons for the annulment of the employment contract. If, for example, an employee fell ill or had to take care of a sick child, then we had no right to part with him. Now we do not need to find out if an employee is absent from the workplace for a good reason or without it. The right of the employer to cancel the employment contract does not depend on this.

You have the right, but you don't have to!

Fourth, before we obliged were to cancel the employment contract with such an employee. Now an employer entitled do it. But he may not use this right.

Example 1

Suppose an employer called an employee who did not come out on the first working day and found out that he was on sick leave. In this case, the head of the company can exercise his right granted to him by the Labor Code of the Russian Federation and instruct the personnel department to cancel the employment contract, or maybe wait for the “newbie” to go to work.

Example 2

The reason for the absence of a new employee from the point of view of the law is not valid - he found out that his girlfriend from another city could come to him just for one day. In this regard, the young man called the employer and asked for a vacation for that day at his own expense. Of course, the head of the company has the right to refuse such a bold request to the employee and cancel the employment contract with him, or maybe, remembering his youth and understanding the romantic feelings of the employee, and not use this right.

Should it be understood, this amendment of the legislator, including so that the management of the organization can dismiss an employee for absenteeism (if the reason for absence from work is disrespectful)? This question is rather controversial. Indeed, before the norm, Part 4, Art. 61 of the Labor Code of the Russian Federation gave an unequivocal negative answer to this question. If the employee did not start work within a week without good reason, the employer had to he was not automatically entitled to cancel the employment contract, and, consequently, he was not automatically entitled to dismiss a new employee for absenteeism. Now the employer has the right not to cancel the employment contract, which means (we mentally add the phrase), he can leave the employee at work ... or fire him. Unfortunately, there has not yet been any judicial practice or clarifications on this matter. And if you decide to impose a disciplinary sanction on an employee, and he will sue you for it, regardless of the decision of the latter (in your favor or not), you can be proud that you have created a judicial precedent.

Eligibility

Fifth, the cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.

Example 3

Let's imagine that your employee was supposed to start work on August 1, but on that day he fell ill. You canceled the contract on August 2. Accordingly, the insured event occurred in the period from the date of conclusion of the employment contract until the day of its cancellation. Therefore, the right to receive benefits for the entire period of illness of your employee will continue.

This rule of the Labor Code of the Russian Federation is consistent with the norms of the Federal Law of December 29, 2006 No. 255-FZ “On providing benefits for temporary disability, pregnancy and childbirth of citizens subject to compulsory social insurance”, which entered into force on January 1, 2007. Whereas earlier, according to the Regulations on the procedure for providing benefits for state social insurance, approved by the decision of the Presidium of the All-Union Central Council of Trade Unions on November 12, 1984, with subsequent changes and additions, as a general rule, in case of illness before the actual start of work (even if there is a concluded employment contract) was not issued. There were only a few exceptions. Thus, persons who graduated from a higher or secondary specialized educational institution, graduate school, clinical residency or a vocational educational institution, sent to work in the prescribed manner, were also granted benefits in cases where temporary disability occurred before they began work. Such allowance was paid from the day appointed for their appearance at work.

Procedure for canceling an employment contract

As mentioned above, in practice, as a rule, instead of carrying out the cancellation procedure, the copy of the contract kept by the employer is seized and destroyed. The fact that another copy of the contract was safely left with the employee who did not start work and at the same time it was not recorded by any act that he did not want to reach the place of production activity, everyone safely forgets.

Of course, there is no judicial practice illustrating the harmful consequences of such a short-sighted behavior of the employer. As far as we know, not a single employee who has not started work without a good reason has yet stated that he actually worked in the organization, because he has an employment contract in his hands, and documentary evidence of his absence in the form of the same act does not exist. It is clear that in such an extraordinary case, “documentary evidence of the absence of an employee at work” will be tried to issue retroactively. Nevertheless, it is better to competently conduct the procedure for canceling the contract from the very beginning.

So, if the employee did not start work on the day the work began, the employment contract may be canceled by the employer.

The question arises: when, in this case, should the personnel department cancel the employment contract? On the day a new employee starts work, it is not always advisable to do this. This is due to the following. In order for the procedure for the annulment of an employment contract to be absolutely flawless from the point of view of law, the employee should not start work during the entire first day. And you and the head of the organization must be convinced of this. Suppose that in the morning your employee did not show up for work at all. If the working day of your new employee lasts from 9:00 to 18:00, it is not a fact that at 17:30 he will not burst into your office, will not declare that he is ready to start working right now, and even that his absence is so long time for good reasons. From a formal point of view, he can start work at 17:45, and at 17:50 and even at 17:55. On the other hand, if an employee shows up this late, you can impose disciplinary action on him, up to and including dismissal for absenteeism. However, if your working day ends at the same time (18:00) - you can hardly have time to cancel the employment contract, then it is better to cancel the contract the next morning. Another thing is if you finish work, for example, at 19:00, however, like the head of the organization who gave the appropriate order, and the employee at 17:00 or 18:00. Then, formally making sure that the employee has not started work for the whole day, you can cancel the employment contract.

The following situation may also take place. The employee went to work, but, having heard from the master what he should do, he decided to quit. In this case, it is advisable to cancel the employment contract immediately.

The fact that the employee did not start work on the first day should be documented by drawing up an appropriate act.

Pay attention to the fundamental difference between this act and the act necessary to dismiss an employee for absenteeism. In case of absenteeism, we confirm that the employee absent at work for more than four hours or the whole day (shift), and in case of cancellation of the contract, we indicate that he is at work did not start. Of course, these concepts are almost identical. Naturally, if a person was absent from work for a day, then it is clear that he did not start it. But he can, as we said above, be present at work, and, nevertheless, not start it. Those. an employee, after completing all the personnel documents, could enter the workshop, see how other employees work, and, having decided that such hard work is not for him, turn around and go home. In this case, the employee seemed to be present at work, but did not start it.

In the latter case, when drawing up an act, you must fix that the employee is exactly did not start(Appendix 1) .

If the employee did not come to work at all, both the wording “did not start work” and the wording “absent from work” can be used.

Appendix 1

that the employee did not start work

I, Igor Igorevich Kuznetsov, head of the loading and unloading shop,

in the presence:

1. Andrey Sergeevich Bochkin, Deputy Head of the loading and unloading shop,

2. Andrey Fedorovich Korovin, loader of the loading and unloading shop,

drew up this act stating that Ivan Ivanovich Gusev, who, according to the employment contract No. 77 of July 31, 2007, was supposed to start working as a loader in the loading and unloading shop, did not start work on August 1, 2007.

Present: Bochkin A.S. Bochkin

Korovin A.F. Korovin

The act was: Kuznetsov I.I. Kuznetsov

If your employee came to work, but, looking into the shop, was horrified, imagining his future “career prospects”, and decided to run away, it would be useful to take a statement from him that he refuses to work for you (Appendix 2). After that, you can cancel the employment contract.

Annex 2

General Director of ABV LLC

N.N. Slyusarev

from I.I. Gusev

Statement

I declare my refusal to start work in accordance with the employment contract No. 77 of July 31, 2007 concluded with me.

Next, you need to issue an order to cancel the employment contract (Appendix 3) and make an appropriate entry in the employment contract: “The employment contract was canceled due to the fact that the employee did not start work on the day the work began.”

It should be borne in mind that the order to cancel the employment contract can be given to the specialist of the organization's personnel department orally. However, in large organizations, where the procedure for processing documents is clearly formalized, they often do the following. The immediate supervisor of the employee writes a memorandum addressed to the head of the organization with a request to cancel the employment contract due to the fact that the employee did not start work on the day the work began. And he attaches to his “petition” an act confirming this fact. And the head of the organization puts his resolution in the form of an appropriate order on the report and sends it to the personnel department.

Appendix 3

Limited Liability Company "ABV"

ORDER

About Cancellation

employment contract

Due to the fact that Ivan Ivanovich Gusev did not start work on the day the work began, established in accordance with Part 2 of Art. 61 of the Labor Code of the Russian Federation, labor contract

I order:

Employment contract No. 77 dated July 30, 2007, concluded with Ivan Ivanovich Gusev, to be canceled on August 1, 2007.

CEO Slyusarev N.N. Slyusarev

In addition, if you have already issued an order to hire an employee, you must cancel it. Nowhere is it said how to do this. It seems to the author that two algorithms of behavior in this situation are possible: the first is to issue a separate order to cancel the order for employment, the second is to make an inscription on the order for employment itself that it has been canceled signed by an employee of the personnel department.

In addition, if an entry has already been made in the work book, it must be canceled in the prescribed manner. And, of course, the work book must be returned to the employee.

Yu.A. Khachaturyan, lawyer

ST 61 of the Labor Code of the Russian Federation.

An employment contract shall enter into force from the day it is signed by the employee and the employer, unless otherwise provided by this Code, other 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 employer. authorized representative.

The employee is obliged to start performing labor duties from the day specified in the employment contract.

If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract.

If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.

Commentary on Art. 61 of the Labor Code of the Russian Federation

1. When interpreting the moment of entry into force of an employment contract, it is necessary to determine what constitutes the fact of the entry into force of an employment contract and what is the ratio of the moment the employment contract enters into force with the onset of other circumstances that are also of legal significance. Among such circumstances should be mentioned: a) the day of signing the contract; b) the day the work started (); c) the day the employee is actually admitted to work ().

2. By virtue of the employment contract, the employee is obliged to work according to a certain labor function, obeying the rules of the internal labor schedule, and the employer is obliged to pay him the stipulated salary and ensure the fulfillment of other conditions arising from labor legislation, from the collective agreement (agreement) and the agreement of the parties ( see article 56 of the Labor Code of the Russian Federation and commentary to it). Based on this definition, it should be recognized that the entry into force of an employment contract means, first of all, the emergence of the above obligations for its parties, i.e. emergence of an employment relationship. This circumstance, in particular, means the following: a) from the moment the contract enters into force, the labor and legal relationship that has arisen between the employee and the employer can be interrupted only on the grounds and in the manner established by labor legislation (see also the commentary to it); b) the position for the performance of duties for which the contract was concluded can no longer be considered vacant - with all the organizational and legal consequences arising from this fact; c) an employee, as a party to an employment relationship, may be sent for training, retraining, etc.; d) the time since the entry into force of the contract should be counted in the length of service required for taking annual leave (see also the commentary to it).

At the same time, the entry into force of the contract can be spaced apart in time from the moment the work begins. In this case, a number of rights and obligations of the parties, the emergence of which is associated with the fact of the start of the actual labor activity of the employee, at the time the employment contract enters into force, remain invalid.

Along with the emergence of an employment relationship between an employee and an employer, the fact that an employment contract comes into force gives rise to other legal consequences relating to other entities. From the moment the employment contract enters into force, the calculation of seniority begins, deductions are made by the employer to the relevant state funds, etc.

3. 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 or an employment contract (part 1 of the commented article). Thus, if, as a general rule, the day the contract is signed is also the day it comes into force, then two exceptions are established from this rule - the date of signing and the moment the contract comes into force may not coincide due to: 1) a direct prescription of a federal law or other regulatory legal act; 2) the concluded labor contract.

4. At present, normative acts determine the time gap between the signing of an employment contract and its entry into force, mainly in cases where such contracts are concluded in the sphere of state property (public administration). The difference in time between the conclusion of an employment contract and its entry into force is explained by the need to coordinate the contract with the relevant management body.

As follows from part 1 of the commented article, such rules can be established exclusively by federal laws or other regulatory legal acts of the Russian Federation.

5. The condition for the later entry into force of the employment contract may be established in the contract itself. This is possible in the case when the work for which the employee is hired is not of a continuing nature, but has a frequency known in advance, and the parties are interested in continuing cooperation. In this case, a one-time conclusion of a series of employment contracts is possible with the determination of the moment of entry into force of each of them. Another case is the conclusion of an employment contract in a situation where at the moment the employer does not have a vacancy, but it is reliably known that this vacancy will appear in the future.

There are two options for establishing the moment of entry into force of the employment contract. In the most obvious case, this moment is associated with the onset of a certain date. However, it is not always possible to set the exact date. For example, it is impossible to determine exactly the day when a pregnant employee will go on maternity leave. In such situations, it is advisable to associate the moment the employment contract enters into force not with the exact date, but with the occurrence of a certain event. In our example, it will be the fact that the employee goes on maternity leave.

6. From the moment of signing the contract, the employee has the right to receive compulsory social insurance in the event of an insured event.

The parties have the right to withdraw from the contract at any time by formalizing their mutual refusal by a written agreement. With regard to unilateral withdrawal from the treaty, the following questions arise: a) is unilateral withdrawal possible in principle; b) if possible, what is its procedure; c) what are the legal consequences of unilateral withdrawal from the contract? Unilateral refusal of a contract that has not even entered into force contradicts the basic principle of contract law "contracts must be performed" and violates the interests of the opposite party.

The employee may withdraw from the contract at any time before its entry into force - another solution to this issue would threaten the emergence of the phenomenon of forced labor, which is completely excluded. The issue of the procedure for an employee to refuse a contract that has not entered into force has not been resolved by law, therefore, it can be recommended to determine the appropriate procedure when concluding a contract. The possibility of imposing on the employee any type of legal liability, including disciplinary and property (in the form, for example, a penalty), in case of unjustified refusal from the contract, seems doubtful. An exception is the case when the contract is concluded under the condition of the employee's obligation to compensate the employer's expenses incurred by the latter in connection with the employee's training (see Articles 207, 249 of the Labor Code of the Russian Federation and comments thereto).

The employer has the right to cancel the concluded contract at any time before its entry into force, however, in relation to him, the contract may establish liability of a property nature for unreasonable cancellation of the contract.

Finally, the entry into force of the employment contract is excluded due to the occurrence of circumstances of an extraordinary nature, for example, due to the absence of an event with the occurrence of which the entry into force of the employment contract was associated (a female employee does not go on maternity leave due to termination of pregnancy). The consequences of such circumstances should also be stipulated when concluding an employment contract.

7. It is necessary to distinguish between the moment when the obligations (and rights) of the parties to the employment contract arise, i.e. the entry into force of the employment contract, and the moment when the employee begins to actually fulfill his duties. For example, the parties may additionally specify the date of commencement of work at the conclusion of the contract; the employee is obliged to begin the performance of labor duties from that day. Despite the fact that, in accordance with Art. 57 of the Labor Code of the Russian Federation, the date of commencement of work is a prerequisite of the employment contract, as follows from part 3 of the commented article, this condition may not be determined by the parties. In this case, the obligation of the employee to start work arises on the next working day after the entry into force of the contract. Therefore, along with the fact that the employment contract has come into force, the fact that work has begun is also of legal importance.

Just as with the entry into force of an employment contract, the fact that the performance of the work stipulated by the contract has begun gives rise to a number of rights and obligations both for the parties to the employment relationship and for third parties. For example, from this moment the employee is paid wages, the employer is obliged to provide the employee with proper working conditions; in turn, the employee actually falls under the master's (normative, directive and disciplinary) power of the employer.

8. If the employee did not start work within the period stipulated by law or the contract due to the fault of the employer, the time during which the employee could not start work should be regarded as downtime through no fault of the employee. In this case, the employee must notify the employer in writing that he is ready to start work, but did not receive it (see article 157 of the Labor Code of the Russian Federation and commentary to it).

The employee may not start work at the agreed time for reasons not related to the guilty actions (inaction) of the employer. In this case, the employer has the right to cancel the employment contract regardless of the employee’s fault, and he has the right to do this from the date the contract enters into force, determined according to the rules established by part 2 or 3 of the commented article. The canceled employment contract in this case is considered not concluded.

If the employee did not start work due to temporary disability, he, by virtue of part 4 of the commented article, has the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until its cancellation.

9. Cancellation of the contract is a right, not an obligation of the employer. Therefore, if the employee did not start work on time without valid reasons, the employer has the right to either cancel the employment contract (without clarifying the existence and content of these reasons), or, considering the employment contract entered into force, bring the guilty employee to disciplinary liability, including including dismissing him for absenteeism in accordance with the rules established by the Labor Code of the Russian Federation (see Articles 81, 193 of the Labor Code of the Russian Federation and comments thereto). In the latter case, dismissal is carried out either from the day when the employee was obliged to start work, or, if the employee came to work and was admitted to work, from the last day of work.

10. Cancellation of the employment contract is carried out by order of the employer. An appropriate entry is made in the work book with reference to part 4 of the commented article and to the corresponding order. It makes sense to make such an entry if an entry on the conclusion of an employment contract has already been made in the work book of the employee: otherwise, the entry is not required.

Cancellation of an employment contract indicates that the employment relationship has not actually arisen from the day it should have arisen. Thus, the moment of annulment of the employment contract should be associated with the date of its entry into force.

11. The legislator provides for a situation in which the moments of the entry into force of the contract and the beginning of the performance of labor duties by the employee are possible. In accordance with part 1 of the commented article, the employment contract enters into force from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative (for this, see Article 67 of the Labor Code of the Russian Federation and commentary thereto). Thus, the fact of the entry into force of an employment contract and the emergence of an employment relationship is determined not by the date formulated in the contract, but by the actions of its parties of a conclusive nature.

If the termination of the 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 implementation of 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 existence 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 have been no such precedents in judicial practice, in principle, nothing prevents the employee from declaring after some time that he has 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 an employee of the personnel department 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 appear at the workplace shortly before the end of the working day, and formally this will be considered an appearance on the day set by the contract.

In this case, it seems more legitimate to impose a disciplinary sanction, up to and including 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 for the employer to prove his case in case of conflict situations, 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. This document must be compiled by a personnel officer 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, the date, time and place of the document, a brief description of the 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 the labor legislation, 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.

In the Labor Code of the Russian Federation, one can come across such a concept as the annulment of an employment contract. What does this term mean in practice, and how does it differ from the dismissal of an employee? What are the reasons for doing this procedure?

What it is

Cancellation of an employment contract is the recognition of an already signed document as invalid, due to the fact that the employment relationship did not actually take place.

Upon cancellation, the employment contract is considered not concluded.

The employer is only given the right to cancel the employment contract, but he is not obliged to use it.

In what cases is it allowed

Cancellation of an employment contract is allowed by article 61 of the Labor Code of the Russian Federation. It is possible only if the employee did not start his duties on the day specified in the contract as the start of work.

In order to understand the cancellation procedure in more detail, it is necessary to consider two terms:

1. The entry into force of the employment contract.
2. The beginning of actual labor relations, that is, the moment a person begins to fulfill his labor duties.

According to the Labor Code. In practice, this means that between the employee and the employer there are legal relations provided for by labor legislation.

But at the same time, the actual beginning of labor relations occurs only when the employee has begun to perform the work specified in the contract. These can be the following events:

1. Conducting on-the-job training.
2. Holding.
3. Entering the workplace of a person on the first working day.
4. The presence of an employee at meetings or planning meetings, etc.

Labor law allows that the date of signing the contract and the date of commencement of work may be different. Moreover, it stipulates the moment when the start date of work may not be indicated in the text of the contract, although it is a prerequisite. In this case, by default, the date of commencement of the employment relationship is the day following the day of signing the document.

Based on the above, we can conclude that not all employment contracts can be canceled.

Depending on the procedure for concluding a contract, they can be conditionally divided into several groups:

1. The actual admission of a person to perform work, and then the signing of the contract, within the three days established by law.
2. Signing of the contract on the same day, which is indicated as the start of work.
3. The signing of an agreement that does not specify a specific date when the person being hired must begin to perform official duties.
4. The signing of an agreement in which the date of commencement of the actual performance of duties is indicated later than the agreement was signed.

Read also: Conclusion of a fixed-term employment contract

Cancellation is possible only in the last two cases. In the first two, this is impossible, since the onset of actual labor relations takes place either earlier or simultaneously with the signing of the contract.

Thus, the main and only condition for the emergence of the right to cancel the contract is the absence of actual labor relations at the moment specified in the contract as their beginning.

Cancellation procedure

The procedure for drawing up an agreement is not specified in labor legislation, but in practice a certain sequence of actions has developed, similar to the execution of official investigations. The only difference is that you do not need to take explanations from the employee.

How to make an order

The procedure for canceling an employment contract is as follows:

1. The fact of the absence of a person at the workplace is fixed. This can be done with the help of an act that is drawn up by a commission of three people. It must include a personnel officer and the immediate supervisor, the employee who did not appear. It is imperative to indicate in the act that the absence takes place on the first working day and precisely from the beginning of the work shift. That is, to emphasize the fact that the employment relationship has not begun.
2. On the basis of the act, an order is drawn up to annul the employment contract. The sample of this order is not approved, so it is drawn up in free form. An approximate text may sound as follows: “Cancel the employment contract No. 18-05 of 03/01/2019 with A. N. Nikitenkov. due to his absence from work on the first day of work, 03/03/2019. The absence is confirmed by act No. 5 dated 03/03/2019.
3. If the employer has already made an order to hire an employee, then it must also be invalidated by a separate order.
4. Next, the employer must bring the employee's work book into proper form. According to the Letter of Rostrud No. 395-6-1 dated March 19, 2012, in case of cancellation, the work book does not need to be filled out. If the admission record has already been made, then it must be declared invalid.

Many employers prefer not to bother with such a procedure and simply inform the employee who has not left so that he does not leave at all, and withdraw the employment contract and order from office work. If the failed employee has his copy of the contract in his hands, this is categorically impossible, since he may appear at the workplace, and then appeal against the actions of the employer, who will be forced to do it through his fault.

Features of cancellation of an employment contract due to absenteeism

You can cancel the contract if the employee did not go to work, regardless of the reason that forced him to do so.

Read also: Conclusion of an employment contract with an individual entrepreneur in 2019

That is, you can perform this procedure, even if the employee did not leave due to illness and later provide a certificate of incapacity for work.

But at the same time, the fact that the employment contract nevertheless entered into force suggests that the employer must issue and pay the employee temporary disability benefits. Moreover, a person can bring sick leave, the beginning of which falls on a date that comes later than the day the contract was canceled. You can do this under the following conditions:

1. The start date of the sick leave has come no later than within 30 days from the date of cancellation of the contract.
2. The person brought the sick leave no later than six months from the date of its closure.

Thus, the fact that the contract comes into force imposes on the employer all the obligations provided for by law, despite the fact that the actual employment relationship did not take place. Dismissal at will or by agreement of the parties.

Labor disputes

They are related to the fact that it is determined whether an employment relationship has actually occurred or not. This is necessary, because as soon as they come, the employer can only start the dismissal procedure. Below are a few examples of when revocation may be considered illegal:

Example 1

Lilac LLC and Karpov N.N. signed an employment contract on 03/01/2019, the start date was 03/05/2019. On this day Karpov N.N. went to work, was instructed at the workplace and left without explanation for the rest of the day. However, the fact of attending the briefing is proof of the beginning of an employment relationship. The employer cannot cancel the contract, but he can dismiss Karpov N.N. for a walk.