The employment contract is canceled if. Cancellation of an employment contract and its legal consequences. Cancellation by law

When hiring a future employee, an employment contract is concluded. This document defines the labor function of the employee, his mode of work, wages and much more.

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But the signing of an employment contract by an employee does not mean that he will actually begin to perform his labor function within the time period specified in the document.

What does the law say?

If the employee has not begun to perform his job (work) duties, it becomes necessary to recognize this agreement as invalid.

The norms of part 4 of article 61 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), after the amendments were made in 2007, clearly regulate the conditions for canceling the employment contract.

This is documented both at the request of the employee and at the initiative of the employer - depending on the specific situation.

Terms of cancellation of an employment contract

Employee initiative

Such a situation is a common practice, especially when it comes to working personnel, when a failed employee comes to the personnel department with the words “changed his mind,” “found a better job,” and so on.

Further actions of the personnel officer imply two options for the development of events:

• Option 1: The employee writes a statement addressed to the head of the organization with the wording: "I ask you to cancel the employment contract concluded with me from 00.00.0000 No. 00."
• Option 2: The employee and the employing organization enter into an agreement to cancel the employment contract. The agreement necessarily reflects that the parties do not have mutual claims to each other, due to the fact that they did not enter into an employment relationship.

Forms of agreement and declaration are not unified by law.

Example of an agreement:

Example agreement

Both the application and the agreement are the basis for the order to cancel the employment contract, with which the employee must be familiarized with signature.

Cancellation and cancellation agreements are not equivalent terms.

Termination means the termination of the employment relationship, while termination means that the employee and the employer have not entered into an employment relationship.

Employer's initiative

Legislation gives the employer the right, not the obligation, to cancel the contract, the terms of which the employee has violated.

But the employer can wait for some time in the expectation that the employee will nevertheless begin to perform his duties.

Absenteeism can be related to illness or injury to the worker.

The employer is not obliged to draw up the cancellation of the contract on the day when the fact of absenteeism was recorded.

But it should be remembered that all the time until the agreement is recognized as not concluded, the employee will be listed in the organization, and according to the law, he is entitled to social security.

Amendments to Article 61 of the Labor Code of the Russian Federation facilitate the position of the employer, since the concept of "valid" and "disrespectful" reasons is excluded.

Therefore, the employee's incapacity for work is not an obstacle to the recognition of the contract as not concluded.

Algorithm of actions of the employer

As the court practice shows, despite the changes in labor legislation, decisions in resolving labor disputes are often interpreted in favor of the employee acting as a plaintiff.

The employer may be required to provide copies of documents confirming the conclusion of an employment contract and the fact of the employee's absence from work.

Therefore, you cannot throw away the employment contract and the admission order - you should justify your actions.

Depending on the initiator of the cancellation of the contract, the employer draws up the following documents:

First, it is necessary to formalize by an act the fact that the employee did not begin to perform his duties according to his position (profession).

The Labor Code does not oblige to use a unified form of the act, it must indicate:

• date, time and place of drawing up the act;
• Full name of the employee;
• a brief description of the circumstances.

The act is drawn up by an employee of the personnel service in the presence of at least two witnesses.

Their capacity is usually the head of the department, and the person responsible for keeping time records. They also certify the act with their signatures, after which the document is approved by the director of the organization.

The basis for drawing up an act is usually a memorandum of the head of the department where the employee was admitted.

Examples of drawing up an act:

A sample of an employee's absence from the workplace
Example of an act for cancellation of an employment contract

Secondly, an order is issued to cancel the employment contract and cancel the order on the acceptance of the employee.

Example of an order:

Sample order for cancellation of an employment contract

Thirdly, a letter (registered with notification!) Is sent to the address of the employee's residence with a request to pick up his work book, or send a written consent to the organization to send it by mail.

This obligation of the employer is due to the requirements of part 6 of article 841 of the Labor Code of the Russian Federation.

Example:

Ivanov I.I. was hired by LLC "Barberry" as a plumber. The employment contract was concluded on 09/02/2015. The start date is the next day. In due time Ivanov AND.AND. did not go to work and did not take up work duties.

Master of the production site Sidorov S.S. wrote to the director of LLC "Barberry" Petrov P.P. a memorandum on this fact. It was reviewed by the director of the organization, and transferred to the person in charge of HR administration, Yu.I. Shishkina. In the personnel department, an act was drawn up stating that the employee Ivanov I.I. did not start work.

Based on this act, an order was issued in the organization with the following content:

Example order

After the issuance of the order According to the current legislation, the employer is obliged to make a record of the work in the employee's work book after five working days.

Therefore, if the employee did not go to work on the very first working day, he must receive a work book without a record of being hired. If the entry was made for some reason, it should be canceled.

The rules for maintaining work books do not contain information on how exactly an entry on the cancellation of an employment contract should be formulated, since the legislation does not provide for it.

Example:

An example of an entry in a work book when canceling an employment contract

What if the employee is a foreigner?

Article 50.1 of the Labor Code of the Russian Federation fills in the gaps in the legislation that existed before its introduction in the field of employment of foreigners.

However, neither this article nor other legislative acts contain a specific procedure for canceling an employment contract with foreign citizens.

Apparently, it is assumed that a foreigner who has received a patent for work in the Russian Federation and is registered with the FMS will start working in any case. It remains to believe that if such an incident does occur, it is necessary to send a notification to the FMS and the tax service - just like when hiring a citizen of another state.

The possibility of cancellation is provided for by Part 4 of Art. 61 of the Labor Code of the Russian Federation: if the employee did not start work on the day of starting work, then the employer has. Let us consider what is meant in the Labor Code of the Russian Federation by the day of commencement of work.

In accordance with Art. 61 of the Labor Code of the Russian Federation, the employee is obliged to start performing his job duties from the day specified in the employment contract. This can be either the day of signing the employment contract or a specific date in the future. If the day of starting work is not specified in the employment contract, the employee must start work on the next business day after the entry into force of the contract. The day of entry into force of an employment contract is the day of its signing by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts of the Russian Federation or an employment contract.

Note! If the day of the start of work is not specified in the employment contract, and the employee, with the knowledge or on behalf of the employer or his representative, was actually admitted to work on the day of signing the contract, the employment contract is considered to have entered into force on that day (part 1 of article 61 of the Labor Code of the Russian Federation) ... Then it is only possible to terminate the employment contract on the grounds provided for in Art. 77 of the Labor Code of the Russian Federation.

This means that if the employee did not start work on the day specified in the employment contract, or (if there is no such date) on the next day after the signing of the employment contract, then the employment contract may be canceled. Note that cancellation of an employment contract is a right and not an obligation of the employer.

Note! A canceled employment contract is considered not concluded (part 4 of article 61 of the Labor Code of the Russian Federation). This means that the contract is deprived of legal force and obligation for the parties to labor relations with all the ensuing consequences.

If an employee is sick

According to the wording of Part 4 of Art. 61 of the Labor Code of the Russian Federation, which was in force earlier, for the cancellation of an employment contract, it was required that the employee did not start work within a week and he did not have valid reasons for this. The 2006 edition of the Labor Code of the Russian Federation calls failure to start work on the day of commencement of work as a sufficient condition for canceling an employment contract. The absence of valid reasons was not named as such a necessary condition. In this regard, the employer has the right to cancel the employment contract even if on the day of the start of work the employee fell ill and was issued a certificate of temporary incapacity for work.

At the same time, a new provision was introduced in 2006, according to which the cancellation of the employment contract does not deprive the employee of 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 to the day of its cancellation (Part 4 of Art. 61 Labor Code of the Russian Federation). In the Letter of the FSS of the Russian Federation of August 15, 2007 N 02-13 / 07-7585, the procedure for applying this provision was explained. In particular, it is indicated that the disability benefit is paid from the day from which the employee was supposed to start work. The procedure for the payment of this benefit is established by the Federal Law of December 29, 2006 N 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood" (as amended on July 24, 2009) (hereinafter - Law N 255-FZ) and Government Resolution RF of 15.06.2007 N 375 "On approval of the Regulation on the specifics of the procedure for calculating benefits for temporary disability, for pregnancy and childbirth, monthly childcare benefits to citizens subject to compulsory social insurance in case of temporary disability and in connection with motherhood" (ed. dated 19.10.2009). It must be borne in mind that if the employment contract is not canceled by the employer, then in accordance with paragraph 1 of Art. 6 of Law N 255-FZ, benefits for temporary incapacity for work due to illness or injury are paid for the entire period of temporary incapacity for work until the day of restoration of the ability to work, the establishment of disability with limited ability to work.

Example 1. An employment contract with an employee was signed on 06/03/2010, and the date 06/14/2010 was indicated as the date of the start of work. On the set day, the employee did not go to work, warning the employer that he was ill. The employer did not cancel the employment contract. The employee went to work on 06/17/2010 and presented a certificate of incapacity for work, in the column "Exemption from work" it was listed "from 06/07/2010 to 06/16/2010", and in the "Start work" column - 06/17/2010. For what period will the temporary disability benefit be paid?

In this case, the temporary disability benefit will be paid from 06/14/2010, since this day is the day of starting work (but not from 06/07/2010) to 06/16/2010.

If the illness and injury occurred in the period from the date of the conclusion of the employment contract until the day of its cancellation, the temporary disability benefit (with the exception of tuberculosis disease) is paid no more than 75 calendar days.

Example 2. Let's take the data of the first example. On the set day (06/14/2010), the employee did not go to work, warning the employer that on 06/07/2010 he fell ill. The employer, having learned that the treatment would be long, decided to cancel the employment contract. For what period will the temporary disability benefit be paid?

The temporary disability benefit will also be paid from 06/14/2010 (since this is the day of starting work) until the day indicated on the sick leave. If this period exceeds 75 days, then the payment of benefits stops.

Documenting

After the conclusion of an employment contract with the employee, the employer must issue a corresponding order (Article 68 of the Labor Code of the Russian Federation) in the form N T-1, approved by the Resolution of the State Statistics Committee of Russia N 1. Next, an entry is made in the work book. Let us remind you that according to Art. 66 of the Labor Code of the Russian Federation, the employer maintains work books for each employee who has worked for him for more than five days, in the case when the work for this employer is the main one for the employee. Therefore, we can recommend employers to make entries in the work book no earlier than the employee begins to perform his duties (if the employment contract was concluded before the day when the employee must actually start work).

If the employee did not go to work on the day it started and the employer made a decision to cancel the employment contract, then the following documents are drawn up.

First, you need to record the fact that the employee is absent from the workplace on the day of the start of work. As evidence, a corresponding memorandum addressed to the head of the enterprise, registered in accordance with the established procedure for the organization, as well as an act on the employee's absence from work on the day of the start of work, can be used.

Purchase department

Director

FSUE "Splav"

B.O. Shershnev

Memorandum

June 14, 2010 N 15

On the employee's absence from work on the day of the start of work

I, Savrasov Andrey Gennadievich, head of the procurement department, on June 14, 2010, established the fact that Olga Ivanovna Iskrova, who was hired as a manager, was absent from the workplace. With Iskrova O.I. On 03.06.2010 an employment contract was signed. 06/14/2010 is set as the start date of work. About the reasons for his absence Iskrova O.I. did not report.

I ask you to take the necessary measures to resolve this situation.

Head of the Supply Department Savrasov / A.G. Savrasov /

(FSUE "Splav")

Act N 21

about the employee's absence from work on the day of the start of work

Commission consisting of:

Chairman of the Commission - Head of the Personnel Department G.A. Trifonova,

commission members:

- Head of the supply department Savrasov A.G.;

- legal adviser O.L. Smirnova;

- Secretary Tropinina V.I.

has drawn up this Act as follows:

Olga Ivanovna Iskrova was hired as a manager in the supply department and, according to the employment contract dated 03.06.2010, she was obliged to start work on June 14, 2010. However, on June 14, 2010, OI Iskrova. did not go to work and did not start official duties. Information about the reasons for the absence of Iskrova O.I. at work is not available.

Signatures:

The act must be signed by at least two witnesses who are not subordinates or superiors for this employee.

Then an order is issued to annul the employment contract. In addition, if a hiring order has been issued, an order must be issued to revoke the hiring order. These two orders can be issued by different documents, or they can be combined into one. Since the legislation does not provide for the form of such orders, we will give an approximate sample of the order in the second case.

Federal State Unitary Enterprise "Splav"

(FSUE "Splav")

Order N 18

Cancellation of an employment contract

and cancellation of a job order

Due to the fact that Olga Ivanovna Iskrova, with whom an employment contract was concluded on 06/03/2010, did not start work on June 14, 2010 (the day established by the employment contract for the beginning of work),

I order:

1. To cancel the employment contract dated 03.06.2010 N 15/10.

2. To cancel the order of 03.06.2010 N 15-k on hiring.

Reason: act of 14.06.2010 N 21 stating that Iskrova O.AND. did not start work.

Director Shershnev / B.O. Shershnev /

If a record of employment was made in the work book, it is necessary to make an entry that cancels the previous one. The procedure for making entries in the work book is regulated by the Decree of the Government of the Russian Federation of 04.16.2003 N 225 "On work books" (as amended on 05/19/2008) (hereinafter - Decree N 225) and the Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69 "On approval of the Instruction on filling out work books "(hereinafter - Resolution N 69). None of these legal acts contain instructions on what entry is made in the work book when the employment contract is canceled. We consider the most appropriate of the available options to invalidate the record. Clause 30 of Resolution N 225 establishes that it is not allowed to cross out inaccurate or incorrect entries in the sections of the work book containing information about work or information about rewarding. Changes to records are made by invalidating them and making the correct records.

A change in the record of hiring is made in the manner specified in clause 1.2 of Resolution No. 69. In particular, with regard to the situation under consideration, it is necessary in the section "Information about work" after the corresponding last entry in this section to indicate the subsequent serial number, the date of the entry, in column 3, make an entry: "The entry for the number so-and-so is invalid." After that, make a correct entry, and in column 4 indicate the date and number of the order (instruction) or other decision of the employer, on the basis of which the correct entry was made. Here's a sample.

N records				Information about admission to work, translated into another constant work, qualifications, dismissal (indicating reasons and reference to article, clause of the law)	Name, date and number document on the basis whom introduced recording
				Federal state unitary enterprise "Splav" (FSUE "Splav")
				Hired for manager positions in purchase department	Order from 06/03/2010 N 15-k
				Record for N 5 invalid. Labor contract canceled due to absenteeism in start day of work, established by labor treaty	Order from June 15, 2010 N 18

Issues not regulated by law

In practice, employees of personnel services may have some questions that have not found permission in the law. In particular, the first of them is the question of what day an employee should be fired if he did not start work on the day specified by the employment contract as the day of starting work. In order to avoid controversial issues, we recommend that on the day of starting work, only draw up documents on the absence of an employee (memo, act), and the next day issue an order to cancel the employment contract.

Further, the question may arise: what to do if the employer does not want to cancel the employment contract? It seems that the answer is obvious: the employer must wait for the employee, putting down in the time sheet a failure to appear due to unclear circumstances. In this regard, another question may arise: during what time from the day indicated as the day of starting work, the employer has the right to cancel the employment contract if the employee did not start his duties on that day? Does the employer have the right, while waiting for the employee, for example, within two weeks, nevertheless to cancel the employment contract if the employee has not returned to work? The Labor Code does not contain restrictions on the period of time during which a decision can be made to cancel the employment contract if the employee did not go to work not only on the day of starting work, but also on the following days. Therefore, it seems to be true that the employer has the right to exercise this right at any time before the employee goes to work.

A significant number of people came to job interviews who “applied” for job positions. After talking with the deputy director for human resources and the head of the workshop, many of the applicants, psychologically exhausted by the search for work and refusals in other places, agreed to both a small salary 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, having entered the shop and heard the master's explanations about what he, a former salesman, manager, etc., should do, a person who is completely unfamiliar with work in production and, in general, is not morally ready for it, and even for a scanty salary, in horror rushed away from the workshop to the personnel department, begging him to return his work book, to withdraw (and sometimes even right in his presence to break (!) the order of employment and never again remember his, the employee, existence.

Sometimes the situation was somewhat modified. After an interview with the 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 phone number specified 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 remove, tear and discard the relevant documents about the employee, and if there were gaps in the numbering of the documentation (for example, the same labor contracts), to state his views on whether than they could be filled.

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

Labor Code Novelties

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 cancellation 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, words that have disappeared in the old edition of the article have been crossed out, those that have appeared in the new edition are in italics.

Table 1

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

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

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

If the employee has not started work in the day of commencement of work, established in accordance with part two or three of this article, the employer has the right to cancel the employment contract. A canceled employment contract is considered non-concluded. Cancellation of an employment contract does not deprive the employee of 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 to the day of its cancellation.

So what has changed? One amendment is, so to speak, "cosmetic" in nature. If, according to the old edition, 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 one - on the day of the start of work, established in accordance with Part 2, 3 Art. 61 of the Labor Code of the Russian Federation.

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

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

If the day of the start of work is not specified in the employment contract, then the employee must start work on the next day after the entry into force of the contract.

The rest of the changes are of a cardinal nature.

Consider not concluded!

First, the legislator clarified that a canceled employment contract is considered non-concluded. In practice, this means that a canceled employment contract does not generally give rise to any legal consequences, except for the employee's entitlement to social security benefits (see the text under the sub-heading “Eligibility for benefits” for more details). Accordingly, the order for employment (if it was issued) is canceled. You should not issue an “order” to dismiss an employee. Also, the entry in the work book is subject to cancellation, if the personnel officer managed to make it.

A day, not a 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 nevertheless make the organization happy with his work in it, the employer can wait for him as long as he wants. And to cancel the employment contract after, for example, a month, making sure that there is no longer any hope of a new employee.

Reasons for absence? Anyone!

Thirdly, the previous version assumed that there were no valid reasons for canceling 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 employer's right to cancel the employment contract does not depend on this.

Right, not obliged!

Fourth, before we are obliged were to cancel the employment contract with such an employee. Now the employer is entitled to 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 use his right granted to him by the Labor Code of the Russian Federation and instruct the personnel department to cancel the employment contract, or he can wait for the “newcomer” to go to work.

Example 2

The reason for the absenteeism of the new employee from the point of view of law is not valid - he learned that his girlfriend from another city could come to him for just one day. In this regard, the young man called the employer and asked for leave 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 perhaps, remembering his youth and understanding the romantic feelings of the employee, and not using this right.

Should it be understood that this amendment by the legislator, including the way that the organization's management can dismiss an employee for absenteeism (if the reason for absence from work is disrespectful)? This issue is controversial enough. Indeed earlier the norm of Part 4 of Art. 61 of the Labor Code of the Russian Federation gave an unequivocal negative answer to this question. If the employee does not start work within a week without good reason, the employer had to to cancel the employment contract, and, consequently, to dismiss a new employee for absenteeism, he was not automatically entitled. Now the employer has the right not to cancel the employment contract, which means (mentally we 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 sues you for it, regardless of the decision of the latter (in your favor or not), you can be proud of the fact that you have set a judicial precedent.

Eligibility for benefits

Fifth, the cancellation of the employment contract does not deprive the employee of 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 to the day of its cancellation.

Example 3

Imagine that your employee was supposed to start work on August 1, but that day he fell ill. You canceled the contract on August 2nd. Accordingly, the insured event occurred in the period from the date of the conclusion of the employment contract until the day of its cancellation. Therefore, your worker will still be entitled to receive benefits for the duration of the illness.

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, which entered into force on January 1, 2007, "On the provision of benefits for temporary disability, pregnancy and childbirth of citizens subject to compulsory social insurance." Whereas earlier, according to the Regulation on the procedure for providing benefits for state social insurance, approved by a resolution of the Presidium of the All-Union Central Council of Trade Unions on November 12, 1984 with subsequent amendments and additions, as a general rule, in case of illness before the actual start of work (even if there is a concluded employment contract), the benefit was not issued. The only exceptions were some cases. So, to persons who graduated from a higher or secondary specialized educational institution, postgraduate study, clinical residency or a vocational and technical educational institution directed to work in the prescribed manner, the allowance was also issued in cases where temporary disability occurred before starting work. Such an allowance was paid from the day appointed for their appearance at work.

Cancellation procedure of an employment contract

As mentioned above, in practice, as a rule, instead of carrying out the cancellation procedure, a copy of the contract kept by the employer is seized and destroyed. The fact that another copy of the contract safely remained 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 get to the place of production activity, everyone is happily forgotten.

Of course, there is still 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 not stated that he actually worked in the organization, because he has an employment contract in his hands, and there is no documentary evidence of his absence in the form of the same act. It is clear that in such an extraordinary case, "documentary evidence of the absence of an employee at work" will try to issue retroactively. And nevertheless, it is better from the very beginning to correctly carry out the procedure for canceling the contract.

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

The question arises: when, in this case, the HR department should 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 canceling an employment contract to be absolutely impeccable from a legal point of view, the employee must not start work during the entire first day. And you and the head of the organization must be convinced of this. Suppose your employee did not show up for work at all in the morning. 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 work right now, and even that his absence is so for a long time due to 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 the employee shows up so late, you can impose disciplinary action on him, up to and including dismissal for absenteeism. Nevertheless, if your working day ends at the same time (18:00) - you can hardly manage to cancel the employment contract, then it is better to cancel the contract the next morning. It's another matter 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, having formally made 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 after hearing from the foreman 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.

Note the fundamental difference between this act and the act required to fire an employee for absenteeism. In case of absenteeism, we confirm that the employee was 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 to 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. After completing all personnel documents, an employee could enter the shop, see how other employees are working, and, deciding 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 he never got down to it.

In the latter case, when drawing up an act, you must record that the employee is to work exactly did not start(Annex 1) .

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

Annex 1

that the employee has not started work

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

in the presence:

1. Andrey Sergeevich Bochkin, deputy head of the loading and unloading department,

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

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.

Attending: Bochkin A.S. Bochkin

Korovin A.F. Korovin

The act was: Kuznetsov I.I. Kuznetsov

If your employee came to work, but, having looked into the shop, was horrified at presenting his further "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.

Appendix 2

General Director of ABV LLC

N.N. Slyusarev

from I.I. Guseva

Statement

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

Next, it is necessary 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 of starting work."

It should be borne in mind that an order to cancel an employment contract can be given to a specialist in 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 boss of the employee writes a memo 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 he started work. And he adds 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 transfers it to the personnel department.

Appendix 3

Limited Liability Company "ABV"

ORDER

Cancellation

employment contract

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

I order:

Labor contract No. 77 of July 30, 2007, concluded with Ivan Ivanovich Gusev, shall be canceled on August 1, 2007.

General manager Slyusarev N.N. Slyusarev

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

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

How often do people get hired and immediately quit? Some do not go to work the next day after paperwork. How to cancel a signed employment contract if the employee has never come to work? What does the law say about the possibility not to be fired if circumstances force you to neglect the first working days?

All these questions have answers and procedures justified by legislation. You should learn more about the bottom.

The Labor Code is the basis on which the relationship between employees and superiors is built. When enrolling a new person to work, the manager signs an employment contract (TD). The employee also leaves his signature. The document indicates the date of signing.

The day on which work begins is not always recorded. If there is no exact date, then the next day after the signing by both parties of the document is considered the beginning.

There are situations when the document is signed, but the employee does not go to work. In this case, the contract is canceled.

Canceled employment contract (ATD) is an unconcluded contract. Termination of the contract takes place if the employee has already worked for a certain time. This is the difference between the two concepts "cancellation" and "termination" of the contract.

You will learn how the AP cancellation is carried out in this video:

For example, Ivanov A.I. took office and worked for some time, and then quit, the contract was terminated under Article 81 of the Labor Code of the Russian Federation.

If the employee did not have time to work, did not want to, or for some reason prevented him from coming from the first day, then the TD is canceled according to article 61 of the Labor Code of the Russian Federation. This procedure is not mandatory by law.

When the contract is canceled

According to Article 61 of the Labor Code of the Russian Federation, an employment contract can be canceled from the first day a new employee does not appear for service, after the day the contract is signed by both parties. This procedure is optional in the law. Management can wait for the employee as long as it wishes.

Labor Code of the Russian Federation Article 61. Entry into force of an employment contract

An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise established by this Code, other federal laws, other regulatory legal acts of the Russian Federation or an employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his an authorized representative.
The 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 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, the employer has the right to cancel the employment contract. A canceled employment contract is considered non-concluded. Cancellation of an employment contract does not deprive the employee of 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 to the day of its cancellation.

If the employee is valuable and it makes sense to wait for him, then the company will go to the meeting and give time to solve problems.

The applicant, in turn, faced with unexpected life events, because of which he cannot go to work on the very first day, must notify the management and provide documents confirming the "alibi". In some cases, the verbal explanation of the reason is quite satisfactory for the company management.

The director may have several options, in the interests of the company:

• the contract specifies the exact date of the start of work (convenient for both parties) and the company waits several days for Ivanov to cure a cold, for example, or go to the funeral if he knows that he will not be able to come to work from the first day;
• the contract is canceled (if, for example, he broke his leg on the same day or in the morning of the next day), and after recovery (a month later) a new contract is concluded if the company can wait and there are no other applicants for the vacancy;
• the contract has been canceled, the vacancy remains open;
• The TD remains in effect and the order of appointment is issued after the actual first working day.

Cancellation documents.

What to do so that the contract is not canceled

If an employee values ​​a new job, but force majeure circumstances do not allow him to go to work from the first day, then it is necessary:

• call the company and warn, explaining the situation;
• ask what documents you need to bring so that absence is not assessed as negligence and neglect of work;
• prepare documents in full compliance with the requirements (certificates, sick leaves, notarized documents confirming life circumstances). If this is a death certificate, birth certificate, then attach a certificate confirming the relationship, certified by a notary.

You will learn how to properly fill out the sick leave and submit it to the employer.

Often, having submitted a resume to several organizations, a person can sign a TD in one company, and the next day receive an invitation from another. Many do not go to work, but go to a more profitable organization. The TD will be canceled by the company within 3 days from the date of signing, if a start date is not specified.

From the side of the applicant, it is correct to call the company and warn that you are not going to go to work. So that the management immediately cancels the document and, acting in their own interests, recruits a new employee to work.

There are many situations in life, it may happen that you urgently need to change your place of residence. In this case, you should also explain the situation personally or by phone and ask for the ADT. Usually, the company expresses its gratitude for the timely warning. What are the rules for it - read the link.

Order to cancel the TD.

How is the procedure for canceling the contract

Ideally, documents are accepted for work in the following order:

• first draw up an employment contract;
• the next day the employee goes to work;
• on the same day, the manual is published, the employee signs it;
• in the personnel department, entries are made in the work book;
• the employee is on the staffing table. you will learn how to correctly draw up an order for the approval of the staffing table.

All these procedures are carried out within 2 - 3 first days. By law, an employee has no right to postpone the first day of going to work.

If the employee does not come the next day after signing the TD, then, accordingly, the management does not sign the Order for hiring.

By law, an employee can write a statement asking ATD:

1. The document must state the reason and attach supporting documents.
2. The employee and the head of the organization draw up and sign the cancellation agreement. Be sure to indicate that they have no mutual claims. There is no specific form for such documents. Freeform is allowed.
3. The director issues an Order to cancel the contract.
4. The employee must sign the Order.

If the initiative comes from the company's management, then:

• the head of the department writes a memo stating that the employee did not take up his job duties;
• the director issues the Order on ATD;
• the employee is called and sent a notification letter so that he appears to sign the Order.
• after signing, the work book is returned.

What are the nuances of cancellation

In most cases, in case of controversial issues in court, the employee wins. Therefore, if you represent a company, remember that the AP cannot be thrown away. You need to cancel it strictly according to the rules so that you can justify your actions.

On the basis of the report, an employee of the personnel department, with two witnesses, must draw up an act of arbitrary form, which indicates the date of absence from work, the employee's data and brief facts, circumstances. The document must be certified by signatures, transcripts and seals.

After the decree on ATD and the cancellation of the Order of Appointment (if any), it is imperative to send a notice to the employee in writing by registered mail so that he appears to pick up the work book.

All these nuances must be taken into account so that in court, if necessary, you can present evidence.

Remember that even if the employee does not go to work, and the employment contract is not canceled, you must provide him with social security - the employee is on the staff.

A sample of an entry in a work book.

Contents of the Order for cancellation of the contract

The order is drawn up on letterhead or a simple A4 sheet:

• the top line contains the name of the organization;
• then the word "Order" in the center;
• below, on the right side is the date, on the left - the number of the Order;
• the next line is the name of the city;
• further the phrase "on the cancellation of the employment contract concluded with (full name)";
• the reason for the cancellation and the date of signing, the details of the contract are indicated below;
• under the word "I ORDER:" follows the text in an imperative form. Usually, items on the list are used, which contain orders "cancel", "cancel the order for employment (date)", "invalidate the entry in the work book";
• on what basis (report from (number), act from (number));
• hereinafter “director” and “signature”.

Making an entry in the work book

If the company is serious and the office work is carried out in accordance with all the rules, then the entry in the work book is invalidated and the mark about this is confirmed by the signature and seal of the director.

All actions for hiring and firing to work are recorded, regardless of how many days the person was listed in the company. Situations can develop in different ways, so the movement of personnel must be documented.

How to properly cancel an employment contract - see this video:

An employment contract is a document that regulates the relationship between an employee and an employer. It spelled out job responsibilities, pay conditions and other critical points.

Sometimes it may be necessary to cancel it, which must be documented.

Difference from termination

Cancellation of a contract and its termination are fundamentally different from each other:

• First, a canceled contract cannot be considered concluded.
• Secondly, there are significantly more grounds for terminating an employment agreement than for annulment (in fact, there is only one ground for the latter, which will be discussed below).
• Third, an incorrect cancellation procedure does not imply the need to conclude a contract. In a situation of errors in the execution of documents, it will be enough for the employer to make a certain payment to the employee (if the case comes to court). In case of incorrect termination of the agreement under the law, the employee can be automatically reinstated.
• Finally, in the event that the cancellation was made for the wrong reason, the employer faces a court and a subsequent decision that he is obliged to hire the person. In case of termination of the contract, the employer will be obliged to do one of 2 things - to reinstate the person at work or to make certain payments.

In what cases is it allowed?

Cancellation of the agreement is allowed in the event that the employee simply did not come to work and did not start performing his duties on the agreed day of the start of activities. At the same time, earlier for the entry into force of this right, it was necessary for the employee to be absent for a week (according to Article 61 of the Labor Code of the Russian Federation), but now the legislation has tightened the requirements.

The only exception is the case when a citizen did not begin to fulfill his duties for a good reason - in particular, because of caring for a seriously ill relative or an exacerbation of heart disease.

As a result, 3 grounds are sufficient for cancellation:

• The presence of a concluded contract with an employee.
• Absence of him at the workplace (and, as a result, failure to perform duties) during the first working day, the date of which is spelled out in the document.
• The person has no valid reasons.

Can it be done on the initiative of the employee?

Cancellation of an employment agreement under the legislation of the Russian Federation can be made only on the initiative of the employer.

If the employee wants the contract to be terminated, he will have to refer to the procedure for terminating the document.

Procedure order

After hiring an employee, the employer traditionally takes the following steps:

• After the conclusion of the contract, the employer issues a hiring order.
• The necessary entry is made in the work book of the new employee (however, this step can be omitted until he starts performing his duties).
• Registration of a personal card, personal file and other documents.

If the employee did not go to work on the first day, the employer must:

• Record the fact that the employee is absent from the workplace. For this, a memo is suitable, which will be written in the name of the director and registered in the order established in the organization.
• To issue an act of absence of the person on the day of the beginning of his work. It is important to consider that the act must be signed by 2 or more witnesses who are outsiders for him in the company (that is, it should not be either his subordinate or his boss).
• Next, the employer issues an order that informs about the cancellation of the employment agreement.

The following steps are only performed if some hiring documents have been issued before:

• If there is an order for admission, it is necessary to prepare and issue an order stating that the action of the previous document is canceled.
• If there is an entry in the work book, you need to make a new entry, which will override the previous one. Since the procedure is not regulated by the Ordinance "On work books" and other regulations, it is easiest to recognize the previous record as invalid. It is important to remember that strikethroughs are not allowed.

Consequences and nuances

After the contract is canceled, he will be considered non-concluded, since the concluded document implies the achievement of an agreement between the parties on all the conditions contained in it. And the time and date of going to work are essential conditions.

Accordingly, such an agreement cannot entail the emergence of certain rights and obligations for any of its parties. In fact, for the employer this is an opportunity to avoid a number of obligations to the employee (for example, to pay taxes, pay wages, prepare and provide a job, etc.), and for a citizen, it is an opportunity not to perform the functions that were spelled out in the original contract. ...

At the same time, both parties are deprived of some rights: in particular, the employee will not have the right to demand from the employer to pay taxes and fees for himself.

There are several nuances associated with this process:

• It is important to understand that this process cannot deprive the employee of the right to receive social insurance services from the day the contract was concluded until the day of its cancellation.
• For personnel services, the fundamental question is what day the dismissal will take place. So, in this case, documents fixing the absence of a person are issued on the same day, and an order for cancellation must be drawn up and signed the next day.
• In a situation where the employer does not want to immediately cancel the agreement, he can wait for any period of the employee's exit to work, since the Labor Code of the Russian Federation does not limit the period of time when this decision must be made. At the same time, if the employee went to work on the second day, and the cancellation was not completed before that moment, this means that the contract can only be terminated (which will lead to other legal consequences).
• Finally, cancellation can be carried out strictly in the event that an employee does not appear at the workplace at all during the day. If he came and started work even 10 minutes before the end of the working day, the employer will no longer have the right to start this process.

Source: http://ZnayDelo.ru/personal/trudoustroystvo/annulirovanie-trudovogo-dogovora.html

Cancellation of an employment contract - a procedure due to absenteeism is allowed in the event of

If the termination of the employment relationship does not occur due to the expiration of the contract or due to the termination of the contract, and the relationship is terminated before it has begun, then a procedure called cancellation of the employment contract is assumed. What does this term mean, and what actions of the parties are assumed in this case?

What it is

Such a definition as "cancellation of an employment contract" can be found in Article 61 of the Labor Code of the Russian Federation. Accordingly, this provision determines the moment from which the employment contract is considered valid. It also indicates who and for what reason has the right to cancel an already concluded agreement.

Cancellation of an employment contract means that a previously signed document loses its legal force, that is, any agreements made 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 started to carry out the assigned duties within the agreed period.

In order to determine the legality of the 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. For all that, a different date may be specified in the contract.

So the document can indicate the exact number or it can simply be written 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 of entry into force of the document and the date of the employee's admission to work are two different representations. In the last episode, this is considered the first working day predetermined by the contract.

If the document does not specify the start date of its validity, then it is considered by default that the employee should begin his duties on the next day after the conclusion of the contractual agreement.

In what cases is it allowed

The early possibility of canceling the contract assumed the existence of such reasons as:

• the employee's absence from work on the day specified in the contract;
• absence of an employee for a week;
• presence of disrespectful 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 (part 4), 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 time period specified under the contract;
• the new employee is absent for the first day, you do not need to wait a whole week to cancel the contract;
• that the reasons for failure to appear do not matter, even if the employee can prove that the reason for his absence is valid, the employer can cancel the contract;
• the employer's wishes in the presence of the above conditions, but he may not use his right and retain the legal relationship.

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

That is, the law does not impute to him the obligatory 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 the "newcomer" as long as he sees fit.

It is possible to impose a disciplinary sanction on a delinquent employee by continuing the employment relationship with him, but this is not considered mandatory and remains entirely at the discretion of the manager.

Find out who are the parties to an employment contract in an educational organization in this article.

Some executives believe that destroying the document is sufficient to annul an employment contract.

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

And since the employee's non-attendance at work has not been recorded in any way, he will continue to be on the staff of the organization.

Although there have been no such precedents in judicial practice so far, in principle nothing prevents the employee from declaring after some time that he fulfilled his duties and wants to receive the agreed payment, as well as all payments due under the contract.

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

• 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 cancel 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 an employee on the first working day”;
• if an order has already been issued for the admission of an employee to a position, it should be canceled. In this situation, the employer has the right to issue an appropriate order in the form of a separate order for cancellation or to make a corresponding entry on the contract itself and certify it with the signature of an employee of the personnel department;
• if an entry was made in the employee's work record book, it must also be canceled by making a corresponding entry. Then the work book must be returned to the employee when he applies.

How to draw up an order

Upon cancellation of the contract, the direct employer is obliged to issue an order. In principle, the cancellation order can be given orally to a human resources employee. However, in order to avoid controversial situations, it is better to arrange everything as formally as possible.

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

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

The leading person, after reading the memo, puts his resolution on it, after which he transmits 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 hiring was previously created, then it is allowed to cancel this order in the document.

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 fix this with an appropriate act.

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

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

Specifics of Cancellation of an Employment Contract Due to Absenteeism

It is inappropriate to cancel the contract during the first day. According to the legal requirements, for the procedure to be valid, the employee must not start work during the first day.

That is, in fact, an employee can appear at the workplace and shortly before the end of the working day, and formally this will be considered an appearance on the day stipulated by the contract.

In this case, it seems more legal to impose a disciplinary sanction, up to and including dismissal for absenteeism.

It is best to start the cancellation process the day after the employee is absent. 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 after some time and at the same time explains his absence with good reasons, the employer has the right to continue the employment relationship.

It also remains the employer's right to punish an employee for absenteeism or not. However, although the employer is not necessarily obliged to cancel the contract if the employee does not appear, it must be remembered that as long as the document is recognized as legal, the employee continues to be listed in the organization and he is entitled to all social benefits predetermined by law.

At the initiative of the employee

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

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 cancellation of the concluded contract. In this case, it is imperative to indicate in the agreement that the parties have no mutual claims.

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

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

Labor disputes

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

In the course 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 cancellation of the employment agreement.

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

• from the immediate superior of the employee to the name of the manager, a memorandum should be received, indicating the absence of the employee or that he has not begun to perform his duties;
• it is imperative to record with an act the fact that the employee does not go to work on the first working day, or that he did not start performing his official duties. This document must be drawn up 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 must indicate - data about the employee, date, time and place of drawing up the document, a brief description of the circumstances;
• an order to cancel the contract must be issued and the order to join the state must be canceled;
• a letter must be sent to the employee's address specified in the contract with notification of the 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 a proper entry in the work book within five days after the issuance of the corresponding order.

But if the entry was made on the very first day, then when the contract is canceled, the entry made in the work book must be canceled without fail.

You can make an entry of the following type: "An entry under a number is considered invalid on the basis of an order to cancel the contract."

What are the legal consequences

According to the amendments made to the labor legislation, the canceled employment contract is considered not concluded.

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

Consequently, if the employee did not begin to carry out his job duties within the time period specified in the contract, then there can be no talk of any agreement.

It follows from this that the signing of the contract does not become the reason for the emergence of any rights or obligations for the parties in relation to each other.

If the contract is canceled before entry into force, then the employer gets rid of any obligations to the other party, such as providing a job, paying salaries, paying taxes for the employee, etc. Likewise, the employee does not bear any responsibility for non-fulfillment of labor duties.

Cancellation of the signed employment contract is allowed already on the next day after the day when the employee did not show up at the workplace. However, this is not considered an employer's duty.

If you are interested in an employee, it is not necessary to cancel the concluded contract. It is possible to resolve differences and continue the employment relationship.

The employment contract with the CEO is reviewed here.

How to draw up a part-time employment contract is described here.

Source: http://vkadry.com/annulirovanie-trudovogo-dogovora.html

Canceling an employment contract - All about personnel

Cancellation of an employment contract is a rather rare procedure: commercial organizations generally prefer not to formalize it (including because it is not enshrined in the Labor Code of the Russian Federation), and institutions funded from various levels of the budget try to prevent this from happening.

To do this, they basically conclude an employment contract on the day they go to work and are not interested in the procedure for canceling the contract. Meanwhile, such a situation is possible (for example, when they found a valuable employee and, in order not to lose him, concluded a contract, but he did not go to work).

So that you are ready for it and not make mistakes when canceling, today we will tell you in what cases cancellation is possible, and also answer a number of questions: is there a deadline for canceling an employment contract; Is it possible to cancel the employment contract if the newcomer started work on the second day, and did not manage to cancel the contract on the first day of work; what if the employment record has already been entered in the work book?

Entry into force of an employment contract

According to Art. 61 of the Labor Code of the Russian Federation, the employer has the right to cancel the employment contract if the newcomer has not started work on the day it starts. How to determine such a day - explain parts 2 and 3 of this article.

In particular, the employee is obliged to start performing work duties from the day specified in the employment contract. And if the start date of work is not specified in the contract, then it is necessary to start work on the next business day after the entry into force of the contract.

That is, if an employment contract is signed, for example, on May 14, and the start date of work is not defined in it, the employee must start work on May 15.

As you can see, in addition to determining the date of work, you need to figure out when the employment contract comes into force. The answer will be given by Part 1 of Art. 61 of the Labor Code of the Russian Federation: an employment contract enters into force from the day it is signed by the employee and the employer. However, the Labor Code of the Russian Federation, other federal laws, regulatory legal acts or an employment contract may establish a different procedure for the entry into force of an employment contract.

In particular, according to Art. 67 of the Labor Code of the Russian Federation, an employment contract that is not executed in writing is considered concluded if the employee started work with the knowledge or on behalf of the employer or his authorized representative.

With the actual admission of the employee to work, the employer is obliged to conclude an employment contract with him in writing no later than three working days from the date of actual admission to work, and if the relationship related to the use of personal labor arose on the basis of a civil law contract, but were subsequently recognized labor, - no later than three working days from the date of recognition of these relations as labor, unless otherwise established by the court.

For your information.According to the explanations of the Plenum of the Armed Forces of the Russian Federation, contained in part 2, clause 12 of the Resolution dated 17.03.

2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", the representative of the employer for actual admission to work is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations or by virtue of an employment contract concluded with this person is empowered to hire employees, since it is in this case, when the employee is actually admitted to work with the knowledge or on behalf of such a person, labor relations arise (Article 16 of the Labor Code of the Russian Federation) and the employer may be obliged to draw up an employment contract with the newbie appropriately.

The peculiarity of the entry into force of the agreement is determined by Art. 20 of the Federal Law of 30.11.2011 N 342-FZ "On Service in the Internal Affairs Bodies of the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation."

So, according to this norm, legal relations in service in the internal affairs bodies between the Russian Federation and a citizen arise and are carried out on the basis of a contract, which comes into force from the day determined by an order of the head of the federal executive body in the field of internal affairs or an authorized leader on the appointment of a citizen to a position in the internal affairs bodies, unless otherwise provided by Law N 342-FZ.

In addition, the conditions for the entry into force of an employment contract with a highly qualified foreign specialist are specific. In particular, the entry into force of an employment contract may be due to the receipt by this specialist of a work permit (clause 2 of article 13.2 of the Federal Law of 25.07.2002 N 115-FZ "On the legal status of foreign citizens in the Russian Federation").

Terms of cancellation of an employment contract

We repeat that if the employee does not start work on the day it starts, the employer has the right to cancel the employment contract (Article 61 of the Labor Code of the Russian Federation). The question arises: is it necessary to cancel the contract on the first day, or can you “wait” for the employee for some time, for example, three to seven days? The nature of this issue is clear. Until 2006, an employment contract could only be canceled if there were two reasons:

Absenteeism for disrespectful reasons;

The employee was absent for over a week.

Source: http://info-personal.ru/uvolnenye-rabotnokov/annuliruem-trudovoj-dogovor-2/

Cancellation of an employment contract

Cancellation of an employment contract means a complete termination of professional cooperation, which can occur for various reasons.

The legislation stipulates that an agreement on interaction must be signed between the company and the person who is appointed to the position. The validity of such a document is always limited to a specific date or the occurrence of any circumstances.

Labor relations can be terminated after the expiration of the contract, at the initiative of one of the parties, or due to circumstances beyond their control. However, in practice, there are situations when a person does not start work at all. In this case, the signed agreement is canceled.

Signing an employment contract

The current legislation obliges the employer to conclude a cooperation agreement with the person whom he introduces to the state and appoints to the position. An employment contract must be in writing.

It is drawn up in duplicate, one for the manager, the second for the employee. The contract is handed over to the worker for signature. The fact of receipt must be confirmed by a mark on the copy of the head. The contract is signed by the parties and certified by the company seal.

In most cases, the document is agreed with the trade union body.

If the worker was actually admitted by the manager to the performance of duties in the position held, this is considered the beginning of an employment relationship. In this case, the contract must be signed within three working days from the date of commencement of the activity.

Determination of the time to go to work

The procedure approved by the current legislation provides for the establishment of the date from which the worker is obliged to start work. Such a period should be reflected not only in the content of the contract, but also in the corresponding order of the head. The person appointed to the position will be informed about this in the process of reviewing the papers.

Even if the documents were drawn up after the actual admission to work, the specific date is still indicated in the agreement and order being drawn up. In this case, the day of commencement of work is negotiated during an oral conversation and is subsequently reflected in the contract and order.

If the date of commencement of labor is not reflected in the agreement, then the person must begin to perform the duties from the moment the document enters into force.

Absence of an employee on the first working day

In practice, there are cases when a person does not take up duties on the appointed day. Absenteeism may not always mean that the worker is violating his / her obligations. To avoid problems later, it is necessary to act correctly.

In accordance with the current legislation, the employee is not obliged to notify the manager of the reason for his absence. In such a situation, a person, after going to work, is obliged to submit a document to the boss, which will confirm the validity of the reason for absence. Otherwise, such a time will be considered absenteeism, as a result of which the worker may simply be fired.

The manager can preliminarily find out about the reason for the absence of a person during a telephone conversation. It will be correct to warn the employee about the need to submit supporting documents later. You can also contact the official authorities. For example, if a person refers to poor health, you can send a request to a medical institution and find out if a certificate of incapacity for work has been issued.

In any case, first it is necessary to establish the validity of the reasons for the absence and only after that make a decision on the dismissal of the employee. Although the absence on the first working day gives the manager the full right to cancel the concluded contract.

Fixation methods

In accordance with the requirements of the current legislation, a person cannot be dismissed from work only if there is the very fact of his absenteeism. Everything must be documented, since the head needs grounds for issuing the corresponding order.

The manager can request a written explanation from the person. Failure to submit such a document is not an obstacle to further action. The reason for the issuance of the order may also be the memorandum of the immediate superior of the employee.

Drawing up an act

Regardless of the availability of written explanations that were requested from the worker, the manager is obliged to draw up another document. This is the act.

The specified document must be drawn up correctly, in accordance with the requirements of the legislation.

The drawn up act is a guarantee that there was no bias on the part of the management towards the employee and the cancellation of the contract took place for justified, and not for far-fetched reasons.

First of all, this document must be drawn up by an authorized official, in the presence of at least two people. This approach avoids possible data falsification.

The text of the act must reflect the following:

1. Date and place of registration of the act.
2. Information about the compiler - full surname, first name and patronymic, position held.
3. Similar data are indicated about witnesses and about the absent worker.
4. Absence date.
5. Signatures of the originator and witnesses.

The executed document is transferred to the head and will be the basis for the issuance of an order and cancellation of the contract in the future. It is not necessary to familiarize the employee with the act.

Documenting

The procedure for terminating labor relations provides for the preparation of some papers.

This rule also applies to the situation of dismissal from the post in the event of cancellation of the contract. In this situation, the procedure is similar to all other reasons for the termination of professional interaction. The difference lies in the fact that all the documents drawn up, as well as the contract, must be canceled. This applies to the order of the manager on the appointment to the position and the work book of the employee.

Cancellation of a job order

It is easy enough to cancel the order of the chief. For this, a separate order must be issued. This rule is applicable, since changes to any document related to the professional activities of a person within the company are made only on the basis of the appropriate order of the head of the organization.

The text of the document requires the following:

1. Date of issue and registration number of the order.
2. Full name of the organization.
3. Number and date of the order that is canceled. Here you can also reflect the data of the concluded contract.
4. Information about the employee - what is the name, to what position he was appointed.
5. Instructions to personnel specialists on the preparation of the necessary documents.
6. Grounds for issuing an order. They will be a memorandum and an act drawn up on the fact of the employee's absence.
7. Manager's signature.

A copy of the drawn up order is sent for execution to the personnel service. It can also be handed over to an employee at the request of the latter.

Is it necessary to record in the work book

When a worker is dismissed, he must be given a personal work book with a record of the reason for dismissal. However, the situation related to the complete cancellation of the concluded agreement is different. In this case, the current legislation does not provide for such a basis for dismissal as cancellation. In this regard, it is impossible to make a mark in the labor law on a general basis.

In the case of the complete cancellation of the concluded contract, the record of inclusion in the company's staff should be simply canceled. The workbook indicates that the acceptance mark has been invalidated. Reference in this case is made both to the article of the Labor Code and to the order of the head of the organization.

Legal implications

The cancellation of the cooperation agreement, in fact, does not have any consequences for each of the parties. This is due to the fact that in such a situation it is believed that the contract was simply not concluded.

In this case, the following circumstances arise:

1. The manager is not obliged to provide the worker with a workplace, the necessary equipment, instruments and tools, as well as pay wages and make tax, pension and other deductions from it.
2. A person should not perform duties in the position held, and the boss, in turn, is deprived of the right to demand this.
3. The employee has no legal opportunity to count on receiving wages, pension, tax and other types of deductions.

That is, in fact, there are no legal consequences for both parties at all. The exception here is insurance payments. If there are reasons for this, a person can count on receiving such funds. The calculation takes into account the time period from the date of signing the agreement until the moment of its complete cancellation.