Cancellation of an employment contract. Cancellation of employment contract Cancellation of admission

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

An employment contract comes 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 Russian Federation or an employment contract, or from the date of actual admission of the employee to work with the knowledge or on behalf of the employer or his authorized representative.

The employee is obliged to proceed with the execution job responsibilities from the day specified in the employment contract.

If the day of starting work is not specified in the employment contract, then the employee must start work on the next business 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 paragraphs two or three of this article, then the employer has the right to cancel the employment contract. A canceled employment contract is deemed not concluded. Cancellation employment contract does not deprive the employee of the right to receive security for compulsory social insurance upon occurrence insured event in the period from the date of the conclusion of the employment contract until the day of its cancellation.

Commentary on Article 61 of the Labor Code of the Russian Federation

As evidenced by the practice of concluding labor contracts, the following two situations most often take place.

According to the first of them, the employment contract comes into force from the date of signing of the document by both the employee and the employer, unless, as stated in Article 61 of the Labor Code of the Russian Federation, otherwise is not established by federal laws, other regulatory legal acts or the same employment contract. It is necessary to clarify that the length of the time interval separating the date of signing the employment contract by the employee from the date of signing by the employer is not specifically defined, but this does not mean that the employer can, at his discretion, postpone the moment of certifying the document with his signature as long as he wants.

In general, the employer has at its disposal no more than 30 days, calculated from the date of signing the employment contract by the employee. The employer has the right to show such "slowness" if the labor contract does not indicate the date when the employee starts performing the work entrusted to him ( labor function).

The fact is that the aforementioned article of the Labor Code of the Russian Federation instructs the employee to start performing his labor duties the next day after the entry into force of the labor contract. At the same time, as we remember, the start date of the of this document is determined by the date of signing by both parties to the employment relationship.

Citizen Petrov P.P. applied for a job to the head of Globus LLC. Having received the consent of the latter, Petrov P.P. signed an employment contract on June 20, 2007, in which - by agreement of the parties - the date of the start of work was not indicated, which was due to the personal circumstances of the employee.

Guided by the powers granted to him and taking into account the interests of the employee, the head of Globus LLC, for his part, signed an employment contract with Petrov P.P. July 19, 2007, after which a corresponding order was issued on the hiring. The next day, this order was announced to P.P. Petrov. against signature, after which he proceeded to perform the work entrusted to him in accordance with the employment contract. At the same time, as the date of the beginning of work, Petrova P.P. in Globus LLC in his work book and other accounting records for labor was indicated on July 20, 2007.

The situation described in the example could have developed in a slightly different way if the start date of work was determined in the employment contract. In this case, the employee, as follows from Article 61 of the Labor Code of the Russian Federation, is obliged to start performing his job duties, as they say, "day in and day out."

Of course, the inclusion in the employment contract of a condition on the start date of work makes adjustments to the timing of the signing by the employee and the employer of the employment contract. Ideally (for the situation under consideration), the employment contract should be signed by the employee and the employer on the eve of the start date of work, recorded in the document.

Guided by the powers granted to him and taking into account the interests of his enterprise, the head of Globus LLC, for his part, also signed an employment contract with Petrov P.P. June 20, 2007, after which the corresponding order was issued on the hiring. The next day, this order was announced to P.P. Petrov. against signature, after which he proceeded to perform the work entrusted to him in accordance with the employment contract. At the same time, as the date of the beginning of work, Petrova P.P. in LLC "Globus" in its work book and other accounting documentation for work it was indicated on June 21, 2007.

Suppose, however, that for one reason or another, an employment contract with a fixed start date was not timely (i.e. the day before) signed by its parties (one of the parties). In this situation, the employee and employer can act in accordance with one of two possible (corresponding to the Labor Code) scenarios:

1. An employee with the knowledge or on behalf of the employer (his authorized representative, for example, the head structural unit to which the employee is appointed) begins to perform the work (labor function) entrusted to him in accordance with the employment contract that has not yet entered into legal force. Within the next three days (see above), the employee and employer must sign an employment contract in order to ensure that it enters into legal force.

2. The employee and the employer, by agreement between themselves, amend the employment contract in order to postpone the date of commencement of work. For this purpose, the start date of work originally fixed in the employment contract can be, firstly, changed to the desired one (more suitable for both parties to the employment relationship).

Secondly, information about the specific date of commencement of work may be excluded from the employment contract. In this case, the employee and the employer have the right to act as described in the first example.

Finally, thirdly, an employment contract may additionally specify a specific date of its entry into force, including a month or even more from the date of signing the document (if the parties to the employment relationship agree to this). In this case, the employee must start work the next day after the entry into force of the employment contract.

Citizen Petrov P.P. applied for a job to the head of Globus LLC. Having received the consent of the latter, Petrov P.P. signed an employment contract.

June 20, 2007, in which - by agreement of the parties - June 21, 2007 was determined as the start date of work, which was due to the specifics of the organization production process on the this enterprise and an acute shortage of appropriately qualified personnel.

The next day, June 21, 2007, Petrov P.P. went to work and was allowed to perform it by the head of the structural unit to which he was appointed. The latter informed the employee that the head of the enterprise had not yet signed an employment contract with him due to his sudden departure on a business trip until June 22, 2007 (In case of a longer business trip, the head of Globus LLC would have to temporarily transfer contracts to one of their subordinates).

Returning from business trip, the head of Globus LLC signed an employment contract with Petrov P.P. On June 23, 2007 and issued a corresponding order on employment, which was announced to P.P. Petrov on June 24, 2007. under the list. At the same time, as the date of commencement of work, Petrova P.P. in LLC "Globus" in its work book and other accounting documentation for labor, it was indicated on June 21, 2005.

Let us supplement the above situations by considering another one, according to which the employee, despite the entry into force of the employment contract, on his own initiative "postponed" the start of work. In order to give an adequate legal assessment of such actions of an employee, we again turn to the relevant provisions of the Labor Code of the Russian Federation.

We would like to emphasize that in accordance with the current edition of Article 61 of the Labor Code of the Russian Federation, an employee is no longer entitled to "postpone" the start of the work (labor function) entrusted to him in accordance with the employment contract without documented good reason, since otherwise the employment contract is canceled, i.e. is recognized as invalid the next day after the employee's absence. Starting from the date of cancellation of the employment contract, the parties have the right to consider themselves free from the obligations assumed in accordance with this document.

Based on the results of consideration of the relevant documents - if such are submitted by the employee in a timely manner and in the proper form - the employer has the right either to allow the employee to perform the work entrusted to him (labor function) (possibly subjecting the latter to disciplinary punishment), or to terminate the employment contract with the employee ahead of schedule in the manner and according to the grounds provided for by the Labor Code of the Russian Federation. For his part, an employee who is given the opportunity by the employer to continue working should show prudence and prevent such situations from arising in the future, even if there are good reasons for this.

In the event that the employee, despite the submitted documents indicating the respectful nature of his absence from work, is still denied the preservation of labor relations, he has the right to appeal the employer's decision on early termination labor contract in court as unmotivated (insufficiently motivated). Let us note in conclusion that the Labor Code of the Russian Federation does not contain any interpretation of the concept of "good reason". The right to determine this (in relation to the described situation) is given to the employer. However, the employer should exercise objectivity and common sense in doing so.

If, for one reason or another, the employee, with whom the employer decides to terminate the employment contract early, will have no choice but to go to court.

It is necessary to draw the attention of dear readers again to the fact that, in accordance with the current version of Article 68 of the Labor Code of the Russian Federation, the signing of an employment contract should henceforth be preceded by an employee's acquaintance, against signature, with the rules of the employer's internal labor regulations and other local regulations directly related to the forthcoming work activity of the employee, as well as to the collective agreement.

The implementation of these actions is the employer's obligation (non-performance (improper performance) of this obligation calls into question the legitimacy of the employment contract concluded with an employee who is not familiar with the above documents before signing the employment contract).

Citizen Petrov P.P. applied for a job to the head of Globus LLC. Having received the consent of the latter, Petrov P.P. signed an employment contract on June 20, 2007, in which - by agreement of the parties - June 21, 2007 was determined as the start date of work, which was due to the peculiarities of the organization of the production process at this enterprise and an acute shortage of personnel of appropriate qualifications.

Guided by the powers granted to him and taking into account the interests of his enterprise, the head of Globus LLC, for his part, also signed an employment contract with Petrov P.P. June 20, 2007, after which the corresponding order was issued on the hiring. However, Petrov P.P. within the period established by the employment contract, the work did not come out, which gave the head of Globus LLC the right to consider, starting from June 22, 2007, the employment contract as invalid. In connection with the above, the order on the admission of P.P. Petrov. to work was canceled on June 22, 2007, and the work book was returned to the employee without making any entries in it.

Citizen Petrov P.P. applied for a job to the head of Globus LLC. Having received the consent of the latter, Petrov P.P. signed an employment contract on June 20, 2007, in which - by agreement of the parties - June 21, 2007 was determined as the start date of work, which was due to the peculiarities of the organization of the production process at this enterprise and an acute shortage of personnel of appropriate qualifications.

Guided by the powers granted to him and taking into account the interests of his enterprise, the head of Globus LLC, for his part, also signed an employment contract with Petrov P.P. On June 20, 2007, after which a corresponding order was issued on hiring. The next day Petrov P.P. did not come to work, however on June 22, 2007 he presented to the head of Globus LLC a notarized copy of his father's death certificate, as well as documents confirming the close relationship of Petrov P.P. with the deceased.

Taking into account the documents submitted by the employee, the head of Globus LLC, guided by the powers granted, allowed Petrov P.P. to perform the work entrusted to him in accordance with the employment contract starting from June 24, 2007, having previously obtained the consent of the head of the structural unit to which the employee was appointed. The order of employment was announced to Petrov P.P. under signature on June 26, 2007 with a note indicating the circumstances of the case.

Another commentary on Art. 61 of the Labor Code of the Russian Federation

1. Article 61, which deals with the moment of entry into force of an employment contract, is new in labor legislation. Questions arise: what is the fact of entry into force of an employment contract, what is the ratio of the moment when an employment contract enters into force with the onset of other circumstances that are also of legal significance. These circumstances include: a) the day of signing the contract; b) the day of commencement of work (Article 57 of the Labor Code of the Russian Federation); c) the day of the actual admission of the employee to work (Article 67 of the Labor Code of the Russian Federation).

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 regulations, and the employer is obliged to pay him the stipulated wages and ensure the fulfillment of other conditions arising from labor legislation, the collective agreement (agreement) and the agreement of the parties (see Article 56 of the Labor Code of the Russian Federation and a 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. occurrence employment relationship... This circumstance, in particular, means the following:

from the moment the contract enters into force, the arisen labor legal relationship between the employee and the employer can be interrupted only on the grounds and in the manner established by labor legislation (see articles and comments to them);

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;

an employee as a party to an employment relationship may be directed to training, retraining, etc .;

the time from the date of entry into force of the contract should be counted in the length of service required to leave for annual vacation(see article 114 of the Labor Code of the Russian Federation and the commentary to it); etc.

At the same time, the entry into force of the treaty can be spread out in time from the moment of commencement of work. In this case, a number of rights and obligations of the parties, the occurrence of which is associated with the fact of the beginning of real labor activity employee, at the time of entry into force of the employment contract remains invalid (see clause 7 of the commentary to this article).

Along with the emergence of an employment relationship between an employee and an employer, the fact of the entry into force of an employment contract gives rise to other legal consequences concerning other entities. From the moment the employment contract enters into force, the calculation of the length of service begins, the employer makes contributions to the relevant state funds, etc.

3. An employment contract comes 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 article 61 of the Labor Code of the Russian Federation). Thus, if by general rule the day of signing the agreement is simultaneously the day of its entry into force, then two exceptions are established from this rule: the date of signing and the moment of entry into force of the agreement may not coincide due, firstly, to a direct prescription of a federal law or other regulatory legal act, and secondly , the concluded employment contract.

4. Currently, regulations determine the time gap between the signing of an employment contract and its entry into force, mainly in cases when such contracts are concluded in the sphere of state ownership ( government controlled). The separation in time of the conclusion of the 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 Art. 61 of the Labor Code of the Russian Federation in the current edition, such rules can be established exclusively by federal laws or other regulatory legal acts of the Russian Federation.

5. The condition on the entry into force of an employment contract not from the date of its signing, but later may be established in the contract itself. This innovation of the Labor Code of the Russian Federation provides the parties with new opportunities in the legal regulation of their relationships.

In particular, the conclusion of an employment contract under the specified condition 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, it is possible to conclude a series of employment contracts at a time, 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 this moment At the same time, 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 an employment contract. In the first (most obvious) case, this moment is associated with the onset of a certain date. However, in life, it is not always possible to establish such a date precisely. For example, it is impossible to determine the exact day when a pregnant worker will take prenatal leave. In this and other similar situations, it is advisable to associate the moment of entry into force of the employment contract not with the exact date, but with the onset of a certain event, which in our example will be the fact that the employee leaves for maternity leave.

6. Establishing the possibility of determining in the employment contract the conditions for its entry into force through certain period after the signing of the contract, the legislator, unfortunately, did not regulate in any way the issue of the nature of the legal relationship between the employer and the employee who entered into an employment contract at the time when it had not yet entered into force.

The answer to this question may be as follows.

First of all, from the moment of signing the contract, the employee has the right to receive security for compulsory social insurance in the event of an insured event (part 4 of article 61; see also paragraph 8 of the commentary to this article).

With regard to withdrawal from the contract in unilaterally, then three questions arise: a) is such a unilateral refusal possible in principle; b) if possible, what should be its procedure; c) what are the legal consequences of unilateral withdrawal from the contract. Unilateral refusal from a treaty that has not even entered into force contradicts the basic principle of treaty law "treaties must be executed" and violates the interests of the opposite party.

An employee can 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 ruled out. The issue of the procedure for refusal of an employee from 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 any kind of legal liability, including disciplinary and property liability (in the form of, for example, a forfeit), on an employee in the event of an unjustified refusal from the contract, seems doubtful. An exception is the case when the contract is concluded under the condition of the employee's duty to compensate the employer's expenses incurred by the latter in connection with the employee's training (see article 207 of the Labor Code, as well as article 249 of the Labor Code of the Russian Federation and a commentary to them).

The employer has the right to withdraw from the concluded contract at any time before its entry into force, however, in relation to it, the contract may establish property liability for unjustified cancellation of the contract.

Finally, the entry into force of an employment contract is excluded due to circumstances of an extraordinary nature, for example, the absence of an event that triggered the entry into force of the employment contract (a woman worker does not go on pregnancy leave due to termination of pregnancy). The consequences of such circumstances should also be discussed when concluding an employment contract.

7. As already noted, the entry into force of an employment contract means that its parties have the rights and obligations stipulated by the contract, ie. the emergence of an employment relationship. At the same time, 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 perform these duties. For example, the parties can additionally stipulate the day of starting work when concluding the contract, and the employee is obliged to start performing his duties from that day (part 3 of article 61 of the Labor Code of the Russian Federation). 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 condition "mandatory for inclusion" in the employment contract, by virtue of Part 3 of Art. 61 this condition may not be determined by the parties. In this case, the employee's obligation to start work arises on the next working day after the entry into force of the contract. Consequently, along with the fact of the entry into force of the employment contract, the fact of the start of work is also of legal significance.

As well as when the employment contract comes into force (see paragraph 2 of the commentary to this article), the fact of the beginning of the performance of the work stipulated by the contract 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 on, the employee is paid wages, the employer is obliged to provide the employee with proper working conditions, in turn, the employee really falls under the employer's (regulatory, directive and disciplinary) authority, etc.

8. If the employee did not start work within the time period stipulated by law or the contract through the fault of the employer, the time during which the employee was unable to start work should be regarded as downtime through no fault of the employee. In this case, the employee must inform 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 the commentary to it).

The employee may not start work at the specified time for reasons not related to the culpable actions (inaction) of the employer. In this case, unlike the previous procedure, 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 of entry into force of the contract, determined according to the rules established by part 2 or 3 of the commented article. In this case, the canceled employment contract is considered not concluded.

If the employee did not start work due to temporary disability, he, by virtue of Part 3 of the commented article, has the right to receive security for compulsory social insurance in the event of an insured event in the period from the date of the conclusion of the employment contract until its cancellation.

9. According to the rules established by Art. 61 as amended, cancellation of the contract is a right, but not an obligation of the employer. If, for example, the employee has not started working in fixed time without good reason, the employer has the right to either cancel the employment contract (without finding out the existence and content of these reasons), or, considering the employment contract entered into force, bring the culpable employee to disciplinary liability, including dismissing him for absenteeism according to the rules established by this The Code (see Articles 81, 193 of the Labor Code of the Russian Federation and a commentary on them). In this latter case, the 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 it, from the last day of work.

10. Cancellation of an employment contract is carried out by order of the employer. A corresponding entry is made in the work book with reference to Part 4 of Art. 61 and the corresponding order. It should be noted that it makes sense to make such a record if in work book the employee has already made an entry on the conclusion of the employment contract: otherwise, no entry is required, because the cancellation of the employment contract means its absence at all times.

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 cancellation of the employment contract should be associated with the date of its entry into force.

11. The legislator provides for a situation in which it is possible that the moment when the contract enters into force and when the employee begins to fulfill his job duties may coincide. In accordance with Part 1 of Art. 61 of the Labor Code of the Russian Federation, an employment contract comes into force from the date of the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative (for the actual admission to work, see article 67 of the Labor Code of the Russian Federation and the commentary to it). Thus, in this case, the fact of 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.

The employer has entered into an employment contract with the employee, which defines the period for reaching workplace... But the employee, for some reason, did not begin to perform his duties. What should an employer do? You can fire an employee for absenteeism, but then you have to follow a special procedure. Meanwhile, for such cases, the Labor Code provides for a simpler action - the cancellation of the employment contract. In this article, we will consider under what conditions an employment contract can be canceled, what circumstances may cause this and how to properly draw up documents.

Cancellation conditions

Labor relations between an employee and an employer arise on the basis of an employment contract concluded in accordance with 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 itself, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative (p. 1 article 61 of the Labor Code of the Russian Federation).

The employee is obliged to start fulfilling his labor duties on the day specified in the employment contract. That is, if the contract is concluded, for example, on 02/07/2012, then the day of the start of work can be 04/07/2012, and 20/07/2012, etc. contract into force.

If the employee does not start work on the day it starts, the employer has the right to cancel the employment contract. A canceled employment contract is considered not concluded, that is, it does not give rise to any legal implications, except for the employee's right to benefits for social security upon the occurrence of an insured event in the period from the date of the conclusion of the employment contract to the day of its cancellation.

The employer can cancel the employment contract, regardless of the reasons why the employee did not start work: whether he changed his mind to work in this organization, got sick or was injured. Attention should be paid here to the wording of the cancellation condition - "if the employee has not started work." Perhaps he nevertheless showed up, but after assessing the working environment or the team, he decided not to start work in this organization and left. Either he came and intended to start work, but before entering the study he hesitated and injured his arm. And in fact, and in another case, according to Art. 61 of the Labor Code of the Russian Federation, the employment contract may be canceled.

For your information. Prior to the amendments to the Labor Code in 2006, the employment contract could only be canceled if the employee did not start work on time without valid reason within a week.

Note that cancellation of an employment contract is a right and not an obligation of the employer. He decides whether the employee will be able to start working in the future or not.

Some employers, in the event that a newcomer has not started work and at the same time has not yet issued an order for employment and has not entered an entry in the work book, they simply destroy the employment contract. This should not be done - after all, a copy of the contract remains with the employee, who may disagree with the actions of the employer and contact the controlling or judiciary... Therefore, although the Labor Code does not establish a specific procedure for canceling an employment contract, it is still better to take certain actions. Let's consider them in order.

Cancellation processing

So, first of all, it is necessary to record the fact that the employee did not start work, and bring this information to the employer's attention. An act is drawn up, which, as a rule, is signed by employees of the organization in the amount of at least three people, and a memorandum - personnel worker or the head of the department in which the newcomer was supposed to work. The question immediately arises: when do you need to draw up these documents? We believe that it is better to draw up the act at the end of the day, making sure that the employee did not come and did not start work, for example, an hour before its end. After all, if the employee nevertheless appears and starts his duties, you will no longer be able to cancel the employment contract, but you can apply to the employee disciplinary action for absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day (shift)) up to dismissal. As for the memo, it is more expedient to draw up it at the beginning of the next day.

If the employee nevertheless went to work, but changed his mind to start it, you can request from him a statement of refusal to start work.

Let us give sample samples memorandum and act.

Chief physician

V. I. Markov

From 07.08.2012

N 5

Memorandum on the absence of an employee at the workplace on the day of starting work

I bring to your attention that accountant Kochkina Larisa Ivanovna, with whom an employment contract of 01.08.2012 N 18/12 was concluded, did not start work on her first day of work, determined by the employment contract - 06.08.2012.

LI Kochkina informed the chief accountant T.V. Petrova about the reason for her absence from the workplace on 08/06/2012 at 16.00, saying that she could not go out on the first day of work due to poor health.

In connection with the need to perform the function for this position, as well as the presence of another employee who is ready to start working as an accountant on 08.08.2012, I ask you to consider the possibility of canceling the employment contract with L. I. Kochkina in accordance with Part 4 of Art. 61 of the Labor Code of the Russian Federation.

Appendix: act dated 06.08.2012.

MLPU "Dental clinic"

06.08.2012

Moscow city

Act N 14/1 stating that the employee did not start work on the day it started

Compilation time: 17 h 50 min.

I, the head of the personnel department, Maslova O. N., in the presence of the chief accountant T. V. Petrova and the personnel specialist M. N. Khokhlova, drew up this act on the following.

Accountant Kochkina Larisa Ivanovna, in violation of clause 1.4 of the employment contract dated 01.08.2012 N 18/12, did not start work on 06.08.2012.

The reason for the absence of Kochkina L.I. notified the chief accountant to Petrova T.V. at 16.00 on 06.08.2012 by phone, referring to poor health.

Head of HR Department Maslova / O. N. Maslova /

Chief Accountant Petrova / T. V. Petrova /

HR Specialist Khokhlova / M. N. Khokhlova /

If the head of the organization, on the basis of the memorandum and the act, decided to cancel the employment contract, a corresponding order must be issued. The head expresses his decision in the form of a resolution on a memorandum. Cancellation of the contract is made by order of the employer, drawn up in any form. Note that if the employer has previously issued an order for hiring an employee, it must also be canceled. This can be done in the same order (see sample order on page 43).

MLPU "Dental clinic"

07.08.2012

Moscow city

Order N 45-k on the cancellation of an employment contract

I order:

1. To cancel the employment contract dated 01.08.2012 N 18/12, concluded with the accountant Kochkina Larisa Ivanovna, due to the fact that she did not start work on the day it began, established by clause 1.4 of the employment contract on 06.08.2012.

2. To cancel the order of employment of L. V. Kochkina dated 06.08.2012 N 42-k.

3. Control over the execution of this order shall be entrusted to the head of the personnel department Maslova O. N.

Reasons:

1. Memorandum of the head of the personnel department Maslova ON from 07.08.2012 N 5.

2. The act stating that the employee did not start work on the day of its start, dated 06.08.2012 N 14/1.

Chief physician Markov / V. I. Markov /

Acquainted with the order:

Head of HR Department Maslova, / O. N. Maslova /

Chief Accountant Petrova, / T. V. Petrova /

Requirements for familiarization with this order of the employee in Labor Code no, but if he appeared at work on the day the order was issued, he should be familiarized with this document (if he refuses, draw up an appropriate act). If the employee no longer came to work, the cancellation order should be sent by registered mail with a notification and a list of attachments.

After registration of all these documents on a canceled employment contract, an employee of the personnel department should make a note: "The employment contract was canceled by order of 07.08.2012 N 45-k" and certify it with the signature and seal of the organization.

You may also have to make an entry in the work book - in case they managed to make a record of employment in it. Of course, such cases are quite rare, but they can occur. Since this issue is not regulated by law, there are several opinions about the wording of such a record. Some experts recommend making the following entry in the work book: "The employment contract was canceled in accordance with part 4 of article 61 of the Labor Code of the Russian Federation, the order for admission from 06.08.2012 N 12 / k was canceled." But since the Instruction for filling out work books, approved by the Decree of the Ministry of Labor of the Russian Federation of 10.10.2003 N 69, provides for the recognition of the entry as invalid, we recommend the following wording:

N records	the date	Information about employment, transfer to another permanent job, qualifications, dismissal (indicating the reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
Number	Month	Year
1	2	3	4
…	…	…	….	…	…
				Municipal medical
				Preventive facility
				"Dental clinic"
				(MLPU "Dental
				Polyclinic ")
04	06	08	2012	Accepted for the position	Order from
				Accountant.	06.08.2012 N 42-k
05	07	08	2012	Entry number 4 is invalid.	Order from
				The employment contract has been canceled.	07.08.2012 N 45-k
				HR Specialist Khokhlova

In this case, in the column on the basis document, the details of the order for the cancellation of the employment contract should be indicated. If the employer has left the work book, he is obliged to send the employee a notice of the need to come for it or agree to send it by mail. 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 three working days from the date of application (Article 84.1 of the Labor Code of the Russian Federation).

And we recommend that personnel officers do not create unnecessary problems for themselves - do not rush to make entries in work books and issue an order for employment until the employee has started it. Moreover, by virtue of Part 3 of Art. 66 of the Labor Code of the Russian Federation, the employer has the right to issue a work book to the employee within five days, and the order can be issued within three days from the date of the actual start of work (part 2 of article 68 of the Labor Code of the Russian Federation).

What is an employee entitled to when canceling an employment contract?

Upon cancellation of an employment contract, the employee has sole right(except for the right to appeal the cancellation): receive security for compulsory social insurance in the event of an insured event in the period from the date of the conclusion of the employment contract until the day of its cancellation.

That is, if an employee brings a certificate of incapacity for work within 30 days from the date of cancellation of the employment contract, the employer will be obliged to pay him temporary disability benefits for the first three days of incapacity for work (Articles 3, 5 of the Federal Law of December 29, 2006 N 255-FZ "On compulsory social insurance in case of temporary disability and in connection with maternity "). The remaining days of temporary disability will be paid from the FSS funds.

Thus, if the employment contract was concluded on 08/02/2012, the employee had to start work on 08/06/2012, but fell ill and on the same day (08/06/2012) opened the certificate of incapacity for work, and the employer canceled the employment contract on 08/07/2012, - the employee has the right to receive benefits for the entire period of illness, since the insured event occurred in the period from the date of the conclusion of the employment contract until the day of its cancellation.

Some features of cancellation of an employment contract

Let's pay attention to the mistakes made by the employer when canceling the employment contract, which, in the event of legal proceedings, may become the basis for compensating the employee for lost earnings and moral damage. Let's consider several court decisions.

Not always compliance with only one condition - the employee did not start work on the day of its start - will be a sufficient reason for canceling the employment contract. The courts, when considering disputes related to cancellation, take into account the fault of the employee who did not start work. That is, if he could not do this through the fault of the employer, who did not provide the conditions for starting work, the employment contract cannot be canceled. An example is the appellate ruling of the Kemerovo Regional Court, which annulled an employment contract with S.A.M. was found to be illegal. As a result, the debt was collected in favor of the employee for wages.

Between S.A.M. and OOO SibMining entered into an employment contract, according to which S.A.M. was hired as a driver in a convoy, engaged in the transportation of rock mass in technological process... The start date of work was determined on the basis of an employment contract, it was also indicated that the employee was familiar with the internal labor regulations and job description, which is confirmed by his painting. According to the employer, within the period established by the contract S.A.M. did not start work. However, according to the testimony of S. AM, which is confirmed by the testimony of witnesses, he regularly went to work and checked in with the head of the column. But they explained to him that the new machine on which he was supposed to work had not yet arrived, and they promised to pay compensation.

Some time later S.A.M. wrote a letter of resignation on on their own, about which an order was issued and an entry was made in the work book. However, no salary was paid to him for this period. Such actions were motivated by the fact that the labor contract with S.A.M. was canceled on the basis of the act and the time sheet, in which the failure to appear for work was put down. The employee was not notified that the contract had been canceled, and a record of the dismissal was made of his own free will, having gone to meet him.

MYSELF. went to court, but by the decision of the Central District Court of Novokuznetsk dated 27.12.2011, he was denied the satisfaction of his claims. However, by the determination of the Kemerovo Regional Court this decision was canceled, and the claims of S.A.M. satisfied, and here's why.

1. After making an appointment, S. А.М. for work, no entries were made in the work book about the cancellation of the order for employment and cancellation of the employment contract.

2. No evidence was provided that the employee was familiar with the order to annul the employment contract.

3. The LLC did not provide the employee with the means to fulfill his labor obligations, while not issuing any documents on the introduction of the idle regime, which actually took place.

4. By dismissing the employee at his request, the LLC thereby confirmed the existence of labor relations between the parties.

As a result, in favor of S.A.M. wage arrears were collected, compensation for unused vacation and moral harm.

And now let us consider the cassation ruling of the St. Petersburg City Court dated 12.12.2011 N 33-18356 against the complaint of LLC "Trust ..." about the workplace), as well as negligence in maintaining strict accountability documents can do the employer a disservice.

The crux of the matter is as follows.

T. entered into a fixed-term employment contract with Trest ..., according to which she was to start working as a dump truck driver. After the expiry of the term of the employment contract, she was not paid wages according to the number of flights she made. LLC "Trest ..." considered that the employment contract with T. was canceled, since she did not appear at the facility and did not submit the documents necessary for employment - a copy of the passport, Pension Fund of Russia, TIN, work book.

At the same time, the employment contract did not contain the conditions that would determine the place of work of T., namely the object to which the representatives of LLC "Trust ..." referred. LLC "Trust ..." did not provide evidence of T.'s absence on the first day of work. Also, no evidence of the cancellation of the employment contract was presented - the decision to annul and notify T. about it.

In addition, T.'s lack of evidence of the work performed cannot serve as a basis for refusing a claim, since the employer is responsible for keeping records of the time actually worked by the employee (Article 91 of the Labor Code of the Russian Federation).

Based on the foregoing, guided by the provisions of Art. 56, 57, 61, 135 of the Labor Code of the Russian Federation, the Dzerzhinsky District Court of St. Petersburg decided to satisfy the claims for the collection of wage arrears from Trest LLC. The cassation instance left this decision unchanged.

Summing up, let us once again draw the attention of the employer: before canceling the employment contract, you need to make sure whether the fact that the employee has not started work actually takes place; fix this fact; issue a cancellation order and notify the employee about it; and, if necessary, cancel the order of employment and entry in the work book.

The Labor Code aims to streamline the relationship between the labor parties, therefore, the positions enshrined in it have legal consequences. This also applies to the grounds for the emergence of these relations, one of which is the actual admission to work.

Let us analyze how this can manifest itself in practice, what bears the employee and employers, and what may be fraught with in the event of unfair fulfillment of their legal duties.

What does it mean "admitted to work in fact"

The law requires the employer to properly formalize the relationship arising with the employee, that is, to sign an employment contract. Not all employers are scrupulous about legal requirements: many people prefer to use the labor of employees without burdening themselves with written obligations. In such cases, the work agreement is concluded orally and the employee, on behalf of the manager or his representative, begins to perform the work entrusted to him. This means that he actually admitted to it.

IMPORTANT! From the point of view of the Labor Code, such registration of labor relations is inappropriate.

When starting work without drawing up a document on mutual obligations, the employee does not get acquainted and does not sign a number of other mandatory documents:

inner order rules;
employment order;
collective agreement;
job description;
safety requirements, etc.

A worker who does not know his rights may think that the other party has complete control over his working hours, wages and working conditions. The Labor Code of the Russian Federation protects more than weak side labor relations and legally equates the actual admission to work with the full-fledged conclusion of an employment contract, even not properly drawn up.

Lines from the Labor Code of the Russian Federation

Equality in the rights of actual admission to work and the employment contract were in force even in Soviet labor legislation (Article 18 of the Labor Code of the RSFSR). In the Labor Code of the Russian Federation legal regulation this problem has been significantly expanded:

in st. 16 says that the proper and timely execution of the employment contract does not matter: if an employee starts work, it means that he entered into an employment relationship with all the legal consequences;
Art. 20 defines an employee as an individual who has entered into an employment relationship with another party;
Art. 61 specifies the moment of entry into force of the employment relationship - this is the day of signing the employment contract or the actual admission to work, which was authorized by the employer's representative or simply knew about it;
Art. 67 requires the employer, within three days, to properly execute a written employment contract with the employee who has started work, and gives the employee the opportunity to reasonably demand this;
Art. 91 indicates the conditions of remuneration, in particular that labor remuneration is charged from the first day of work, that is, the actual admission to it.

Employment contract = actual admission

The legal equality of these two methods of starting an employment relationship is in their legal consequences. It is considered that an employee who has started work has already entered into an oral employment contract, and its written execution cannot be postponed for a period exceeding three working days.

Will an employment contract drawn up with such a delay somehow differ from a standard one? Differences:

The difference is in dates. The contract is not signed "retroactively", therefore, it will have a later date than the one when the employee actually started work (the day of the start of work is indicated separately in the text of the contract).
Nuance of entry into force. This agreement will enter into force from the date of admission to work, and not from the moment of conclusion, as it happens in the usual way.

Thus, the actual admission to work is not an exemption from the execution of an employment contract, but only a small delay, an acceptable exception from the general employment rule, when the contract is signed first, and then the employee starts work.

How is the actual admission to work drawn up

The law does not provide a regulation according to which the employer secures the employee's right to start work on his behalf and with his knowledge. This procedure can be spelled out in the internal regulations of the organization. This could be:

oral agreement;
an employee writing an application for admission to work;
order or order for admission;
a service (memo) note that fixes the fact of starting work at a new workplace.

It is of fundamental importance that only a representative of the employer endowed with these powers can be admitted to work. These powers must be specified in local acts or constituent documents organizations.

NOTE! In practice, when starting work, workers cannot check whether the person who allowed them has such powers. Therefore, a rule has been adopted according to which in the courts such doubts are interpreted in favor of the employee, unless the employer proves that he purposefully informed the applicant about the powers or their absence.

Evidence of actual admission to work

If the employer has not fixed in any way the moment of admission of a new employee, how can this be proved if it is necessary to protect his rights?

First, after three days, a written employment document should be required. If the employer does not do this, he falls under administrative responsibility.

Proof of employment the court may serve:

admission to the territory of the organization;
providing an employee with a workplace;
acts of receipt by him of stationery, materials, overalls, etc .;
medical examination document;
the name of the employee in plans, programs, lists, etc .;
audio or video recordings, where the employer's representative gives instructions to the employee, and the employee does the work;
testimony of witnesses;
an agreement on material responsibility (sometimes it is concluded "bypassing" labor, where there is interaction with certain values);
other evidence.

Actual admission and probationary period

Can we talk about entrance examinations, if it is required to start work so urgently that it is impossible to preliminarily draw up an employment contract, where all the conditions of the probationary period are usually prescribed? Usually not. The actual admission to work, as it were, by default, fixes the suitability for it of the employee thus hired.

However, by agreement of the parties, entrance examinations can be formalized before the conclusion of an employment contract. To do this, you will have to spend time and effort to sign a separate agreement on this issue, as required by Part 2 of Art. 70 of the Labor Code of the Russian Federation. Only in this case it will be possible to transfer it to the employment contract. It must be issued in 2 copies - for each side.

If such an agreement has not been drawn up, the employer has no right to establish probation upon subsequent execution of an employment contract.

Consequences of admission to work in fact

If, within the three-day period provided by law, the employer duly formalized the arisen employment relationship, no additional legal implications does not arise. It just appeared on his staff new employee, another staff member. Consequences occur if the employee's rights are violated by improper performance of the employer's duties:

If admission to work was obtained from a person who did not have such powers, and the employer refuses to hire in the proper manner, he is obliged to pay the failed employee remuneration for the work performed in proportion to the hours actually worked. A guilty employee who has exceeded his authority is subject to disciplinary action. If, as a result of this admission, there was real damage, it will be recovered from the employee, but material liability will also fall on an unauthorized representative (Article 39 of the Labor Code of the Russian Federation).
If the employer has not drawn up a written employment contract within the three-day period established by law, the employee has the right to request it. If the employer refuses, you can seek rights through the courts or the labor inspectorate. For violation of the law, the employer faces a serious fine, the amount of which can be different, depending on the type of violation:
- evasion from registration;
- untimely registration;
- improper registration;
- substitution of an employment contract with a civil one.
The employee's signature is missing on the employment contract. Such an agreement is considered to be executed improperly, for which the employer is responsible. This does not exempt him from labor relations, which are still considered prisoners upon admission to work.

In practice, there are situations when immediately on the first day of work new employee just doesn't appear. For example, he had an accident the day before or decided to refuse to work in this company. In this case, the employer has the right to cancel the employment contract on his own initiative. In the article, we will consider whether it is possible to cancel an employment contract at the initiative of an employee, as well as the procedure for processing the cancellation.

A procedure such as canceling an employment contract in labor law appeared relatively recently, since October 2006 (61 of the Labor Code of the Russian Federation).

Important! Cancellation is a process in which the contract is recognized as not concluded, and there are no negative consequences for the employee.

In what cases can an employment contract be canceled

It is not always possible to cancel the contract, this can be done only if the employee has not yet had time to start work on the very first day (he is the day of starting work). Based on this, it is important to determine this day. According to the Labor Code of the Russian Federation, an employee is obliged to start performing his duties from the day that is determined by the employment contract. Accordingly, such a date as the start of work must be included in the contract with the employee. For example, the contract specifies that the employee starts work on Monday 26 February 2020, and the contract itself is concluded on Thursday 22 February 2020. But the day of commencement of work is not always indicated in the contract. If it is not specified, then the new employee is obliged to start work from the next working day, after the date of entry into force of the contract. The agreement comes into force on the day of signing (unless otherwise provided by the agreement itself or other regulatory acts). Returning to our example, let's define the day of the start of work. If the contract is signed on February 22, 2020, then on the same day it enters into force, respectively, the start of work falls on the next working day, that is, February 26.

You can determine the start date of work in one of two ways:

In accordance with the date specified in the contract with the employee;
In accordance with the date of entry into force of the contract. In this case, the start day falls on the next business day after the entry into force of the contract in question.

Determining the day of starting work in different situations

Consequences of cancellation of the contract

Important! Cancellation of the contract will mean that it simply has not been concluded, which means that there are no consequences for both the employee and the employer.

Moreover, if the employee and the employer decide to re-enter into an employment agreement, there will be no obstacles to this. For example, an organization entered into a contract with an employee who had an accident on his first working day, after which he was unable to contact the employer for some time. Without clarifying the reasons, the employer unilaterally canceled the contract with the employee. When the employee showed up and explained the reasons for his absence, it was decided to take him to work. To do this, you just need to conclude a new employment contract, which will have nothing to do with the canceled contract.

Employee social insurance

One of important points when concluding and canceling labor agreements, it is that the employee has the right to security in accordance with compulsory social insurance. This is a temporary disability benefit, which the employee is entitled to receive, regardless of what was the reason for the cancellation of the contract. An employee can count on the benefit from the moment the contract is concluded until the date of its cancellation (No. 255-FZ). For this, the following conditions must be met:

An insured event for which the employee expects to receive benefits occurred in the period between the conclusion of the contract until its cancellation;
The employer pays the allowance from the day the new employee starts working.

For example, an agreement was concluded with an employee on February 22, 2020, and the day of the start of work is February 27, 2020. The worker had an accident on February 26 and did not come to work. The employer canceled the employment contract on February 28, 2020. The employee is entitled to an allowance, since the insured event occurred when the contract had already been concluded and before the date of its cancellation. And the allowance must be paid from February 27, since this date is the day of the beginning of employment with a particular employer.

Cancellation of an employment contract at the initiative of an employee

The procedure for cancellation of an employment contract

At the time of the decision to cancel the contract, the employer has already drawn up the following documents for the employee:

Labor contract;
Admission order;
Employment history. As a rule, a labor record is entered after the employee has directly begun to work, but sometimes it is filled out immediately.

Important! It is impossible to simply destroy the employment contract, and not annul it. One of the reasons for this is the employee's right to social security.

The first step in the cancellation process is to confirm that the employee is absent from the workplace on the first day of their employment. For this, an act, a memorandum is drawn up. After that, an order is drawn up, which indicates the details of the contract to be canceled, as well as the date from which the contract will be canceled. The contract also indicates that the order for hiring has been canceled, and the entry in the employment record is invalidated. The labor record may be as follows: “Record for No. ____ is invalid. The employment contract has been canceled. " An order to annul the employment agreement is indicated as the basis.

As a general rule, an employee is obliged to start performing work duties from the day specified in the employment contract. If the day of starting 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.

The 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 an employee with whom an employment contract has been concluded has not started work within the specified period, the employer has the right to cancel the employment contract (but is not obliged to do so). At the same time, the employer is not obliged to find out the validity of the reason why the employee did not start work.

A canceled employment contract is deemed 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 go to work, find out the reasons for his absence and then make a decision depending on what explanations the employee will provide.

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

If the reasons for the employee's absence from work were valid (for example, he was sick), then the labor relationship continues, 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 clarifying the reasons for the employee's absence from work.

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

Expert group of the journal "Handbook of a personnel officer"