The employer has the right to cancel the employment contract

In practice, there are situations when a new employee simply does not show up on the first day of work. 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 the employee, as well as the procedure for registering cancellation.

Such a procedure as the annulment of an employment contract in labor legislation appeared relatively recently, since October 2006 (61 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 a contract; this can only be done if the employee has not yet started work on the first day (aka the start day of 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 begin performing his duties on the day specified in the employment contract. Accordingly, a date such 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, February 26, 2020, and the contract itself was concluded on Thursday, February 22, 2020. But the start date of work is not always specified in the contract. If it is not specified, then the new employee is required to start work on the next working day after the effective date of the contract. The agreement comes into force on the day of signing (unless otherwise provided by the agreement itself or other regulations). Returning to our example, let's determine the start day of work. If the contract is signed on February 22, 2020, then it comes into force on the same day; accordingly, work begins 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 effective date of the agreement. In this case, the start day falls on the next business day after the agreement in question comes into force.

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Cancellation Conditions

The possibility of cancellation is provided for in Part 4 of Art. 61 of the Labor Code of the Russian Federation: if the employee does not start work on the start day of work, then the employer has the right to cancel the employment contract. Let's 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 begin performing labor duties from the date specified in the employment contract. This could be either the day the employment contract is signed or a specific date in the future. If the employment contract does not specify the start date of work, the employee must begin work on the next working day after the contract enters into force.

Note! If the employment contract does not specify the start date of work, and the employee, with the knowledge or on behalf of the employer or his representative, was actually allowed to work on the day the contract was signed, 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 Labor Code of the Russian Federation.

This means that if the employee does not start work on the day specified in the employment contract, or (if there is no such date) the next day after signing the employment contract, then the employment contract may be cancelled. Please note that cancellation of an employment contract is a right, 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 agreement is deprived of legal force and binding force on the parties to the labor relationship with all the ensuing consequences.

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

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

If the employee and employer have not determined the day of withdrawal, it will automatically fall on the next working day. That is, if the employment contract was concluded on June 25, you must begin performing your duties on June 26.

If the new employee does not start work on the due day, Art. 61 allows the employer the right to cancel an employment contract, regardless of the reason for the employee’s absence. In this case, the contract is considered not concluded.

Let us pay special attention to the words “started work.” They mean that in order for the employment contract to come into force, the employee must not only come to work, but also begin to perform it. And if he worked on it for at least an hour, and then decided that it was “not his” and left, the employer will no longer be able to cancel the employment contract.

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

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

There are two conditions necessary for the legal cancellation of an employment contract:

Availability of a concluded employment contract.
The employee did not begin to perform his job duties on the day that was the day the employment relationship began for him.

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

So, the employer (MOU secondary school) entered into an employment contract with the teacher. A few days later an order was issued to cancel the contract. But the employer not only did not take into account that the employee had already worked for the day, but also, having found out that the teachers had registered for a part-time job, fired the teacher under clause 11 of Part 1 of Art.

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

We suggest you read: Is it possible to retroactively make an entry in the work book?

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 comes into force from the day it is signed by the employee and the employer, unless otherwise established 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 (Part 1). 1 Article 61 of the Labor Code of the Russian Federation).

The employee is obliged to begin performing his job duties on the day specified in the employment contract. That is, if the contract was concluded, for example, 07/02/2012, then the start day of work may be 07/04/2012, or 07/20/2012, etc. If the start day of work is not determined, then it is necessary to start work on the next working day after joining the agreement comes into force.

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

An employer can cancel an employment contract regardless of the reasons why the employee did not start work: whether he changed his mind about working in this organization, fell ill or was injured. Attention here should be paid to the wording of the cancellation condition - “if the employee has not started work.” Perhaps he still showed up, but after assessing the work environment or the team, he decided not to start working in this organization and left.

For your information. Before changes were made to the Labor Code in 2006, it was possible to cancel an employment contract only if the employee did not start work on time without good reason within a week.

Please note that cancellation of an employment contract is a right, not an obligation of the employer. He decides whether the employee will be able to start work in the future or not.

Some employers, if the newcomer has not started work and the hiring order has not yet been issued and an entry has not been made in the work book, 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 employer’s actions and appeal to regulatory or judicial authorities.

Determining the start day of work in different situations

If various situations arise, the date of commencement of work may not coincide with the day that we determined under the contract. For example, before the start of a new employee’s work shift, an accident occurred at work, which prevented him from starting his duties. In this case, the time before the employee begins to perform his duties must be recorded. It is defined as downtime, but not through the employee’s fault. The employee himself should inform the employer about this situation. If the employee simply does not show up at his workplace on his first day of work, then the employer has the right to unilaterally decide to cancel the agreement, without finding out the reasons for his absence (

Basic Concepts

You need to know that canceling an employment contract means declaring it invalid. That is, the parties do not need to fulfill all the obligations specified in the employment agreement. State and non-state enterprises try not to let things go as far as canceling hiring orders. To avoid this, contracts are signed on the day of employment and the same day is determined as the date of commencement of job duties. But sometimes (for example, in order to attract competent specialists to work) it is necessary to conclude a hiring agreement in advance. In this case, the date of return to work is specified in the text of the contract. The employment agreement has legal force from the moment the contract is signed. The Labor Code also contains other possibilities for the entry into force of an employment agreement. Even if the employment contract has not been signed, and the employee has already started work by order of the boss or his representative, it is automatically considered concluded. In this case, everything must be completed on paper within three working days. For example, an employee started working on Friday, September 15, he must be registered before the end of working hours on Tuesday, September 19. A different employment procedure in this case can only be established in court. Each field of work may have its own nuances of applying for a job. For example:

Police officers are employed in accordance with a contract concluded between the Russian Federation and a citizen of the Russian Federation. Such a contract comes into legal force after the order is signed by the management of the federal branch;
a labor contract with minors must contain certain conditions in accordance with legal requirements;
an employment agreement with foreigners can be legally concluded only after a work permit in Russia has been obtained.

Cancellation of an employment relationship can be made by decision of the employer on any day, starting from the start date of the new employee, provided that he has not begun his functional duties.

Deadlines and procedure

The law allows only one reason for the cancellation of an employment agreement. In what case does an employer have the right to cancel an employment contract? The employment transaction is canceled in the only case - if the employee does not appear at the place of new employment on the pre-agreed day. Even if the employee has valid reasons for absenteeism, the employer can calmly refuse the concluded deal. For example, a future employee was undergoing hospital treatment. There is a certificate and sick leave. These documents will not play any role. The only thing that can be changed is to sign a new employment agreement and not violate its provisions. Before 2006, the period for canceling an employment contract was seven days. In accordance with current legislation, in 2020 you no longer need to wait a week. An employment agreement can be declared canceled on the very first day. Or you can wait for a lost employee for any amount of time. Provided that the future employee shows up for work on time, this agreement cannot be cancelled. In this case, the employee can only be fired. And dismissal for any reason imposes additional obligations on the parties.

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Consequences of cancellation of the contract

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

Moreover, if the employee and the employer decide to re-enter an employment agreement, there will be no obstacles to this. For example, an organization entered into an agreement with an employee who, on his first day of work, had an accident, 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 hire him anyway. To do this, you simply need to conclude a new employment contract, which will have nothing to do with the canceled contract.

Employee social insurance

One of the important points when concluding and canceling employment agreements is that the employee has the right to security in accordance with mandatory social insurance. We are talking about temporary disability benefits, which the employee has the right to receive regardless of the reasons for the cancellation of the contract. An employee can count on benefits from the moment the contract is concluded until the date of its cancellation (No. 255-FZ). To do this, the following conditions must be met:

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

For example, a contract was concluded with an employee on February 22, 2020, and the start day of work is February 27, 2020. The employee 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 benefits since the insured event occurred when the contract had already been concluded and before the date of its cancellation. And the benefit must be paid from February 27, since this date is the day the work begins with a specific employer.

The right to cancel an employment contract or employment order

Cancellation of an employment contract at the initiative of the employee

According to the Labor Code of the Russian Federation (Article 61), annulment of an employment contract is possible only if the employee has not fulfilled the following condition: he went to work on the day he began his work activity. But the employee’s mere desire to cancel it is not provided for by law. For example, a contract with an employee has already been signed, but the day before going to work he called and said that he had changed his mind about working and asked to cancel the contract. In this case, cancellation can be issued, but the reason will be the same: the employee did not go to work on his first working day. No statements from the employee are required, as well as agreements on the cancellation of the employment contract (

Zakon i Worka

The procedure for annulling an employment contract means that all agreements between the employer and employee become invalid, that is, the previously signed contract loses its legal force.

The Labor Code of the Russian Federation has a definition of this concept, as well as who has the right to cancel a contract and for what reason this can be done. An employment contract is canceled in the only case - the employee did not show up for work on his first day and, accordingly, did not begin to perform the duties specified in the contract.

If previously the law allowed this to be done in the absence of a new employee at the enterprise for a week, now the Labor Code of the Russian Federation stipulates more stringent requirements - 1 day. But still, there are some exceptions, that is, in some cases the document is not cancelled.

Procedure for canceling an employment contract

At the time of making the decision to cancel the contract, the employer had already prepared the following documents for the employee:

Employment contract;
Reception order;
Employment history. As a rule, an entry is made into the labor record after the employee has actually started working, but sometimes it is filled out immediately.

Important! You cannot simply destroy an employment contract rather than cancel it. One of the reasons for this is the employee's right to social insurance.

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

Differences between annulment and termination procedure

As with any other personnel procedure, there is a certain procedural procedure for canceling an employment contract.
In most companies, cancellation is carried out by simply withdrawing such an agreement and destroying it - from a procedural point of view, this is fundamentally wrong and even dangerous for the employer. The danger here may lie at least in the fact that the fact that the employer does not have an employment contract at his disposal does not mean that the employee does not have one.

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Issues of termination of an agreement or its annulment are relevant for contractual work.

Due to the significant difference between these two concepts and their legal consequences, it is necessary to distinguish between these two terms in order to establish the appropriateness of use in modern legislation:

a canceled agreement cannot be considered concluded, it does not entail legal consequences for both parties from the date of its signing;
The termination procedure is a voluntary termination of the labor relationship at the initiative of both the parties to this agreement and government bodies that have the right to demand this.

It is worth noting that these are completely different procedures, differing in regulations and legal consequences.

Attention: The management is only given the right to cancel the contract, but he is not obliged to use it, but can be guided by personal considerations.

Many managers wonder in what case does the employer have the full right to cancel an employment contract? Let's take a closer look at all the conditions regulated by the Labor Code of the Russian Federation.

Cancellation of an employment contract due to absence from work is the only basis. As a result, there are several reasons for this procedure:

existence of a contract signed by both parties;
failure of an employee to show up for a new workplace and failure to perform functional duties;
complete absence of valid reasons or force majeure circumstances.

A valid reason could be, for example, a serious illness.

It is not only the employer who can initiate such a process. This procedure can be carried out at the employee’s initiative only in the period preceding the first working day. The Constitutional Court, in its ruling No. 1313-O dated August 17, 2012, gives the employee the right to refuse an already signed contract if he changes his mind about going to work.

To do this, he needs to inform his decision to senior management and ask to cancel the signed TD. In fact, in this case the company will have no reason to contradict the employee.

Important: The contract loses legal force and obligations for both parties to the labor relationship with all undesirable consequences.

Cancellation of an employment contract is regulated by the Labor Code of the Russian Federation and has a certain procedural order, like any personnel procedure. Let's take a closer look at how this happens.

If such a need arises, the employer is recommended to adhere to the following sequence of actions:

Establish the fact that the negligent employee is absent from the new workplace.
Draw up an act or memorandum in the presence of a commission of three people and submit it to senior management.
Create an order to cancel the TD.
Make a corresponding note in the contract.
If the manager has already issued an order to hire an employee, it is necessary to cancel his action.
If an entry has been made in the work book, the personnel officer must make a note declaring it invalid.

The final stage in this process is a written notification to the employee that the TD is considered not concluded.

Employers often wonder how to cancel an employment contract if the employee does not start work on time?

For legally correct documentation, it is recommended to issue such an order the very next day. It is printed on letterhead or a standard A4 sheet. The text must combine all the actions that the employer took in connection with the employee’s absence from the workplace.

After the procedure is completely completed, the personnel officer must make a corresponding note on the canceled agreement, then certify it with the signature and seal of the organization.

Attention: The order to terminate the contract is issued in free form. However, you must indicate the form that is subject to cancellation.

In accordance with Article 68 of the Labor Code, after drawing up a contract with a new employee, the employer must issue an urgent order to hire him. The law allows this order to be terminated if necessary.

To do this, it is necessary to draw up and issue another order stating the cancellation of employment. The order must be endorsed by the signature of the general director and certified with the seal of the organization.

No entry is made in the work book upon cancellation of the agreement. The only exception is for the situation when a personnel specialist managed to enter information about hiring into the work book on the very first day.

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In this case, changes in the entries in the work book are made by considering them invalid on the basis of the order and making correct entries on the following lines.

Letter of Rostrud dated March 19, 2012 No. 395-6-1 provides explanations for filling out the work book in such cases.

After completing all the above documents, the employer should draw up a notification letter and attach copies of the documents to it:

order to cancel the TD;
a document that records the fact that a subordinate was absent from his workplace on the first working day.

All these documents must be sent by registered mail to the address indicated by the hired employee in the application with acknowledgment of receipt.

Important: Transferring a personal work record book to the owner may be difficult because he did not show up for work. In this case, you can again resort to postal transfers and send a letter asking you to appear for your work book.

Cancellation of an employment contract means: legal relations have not begun. Dismissal occurs when the relationship has begun.

Allowed if the employee does not start work on the appointed date, regardless of whether the reason is considered valid. When the contract does not specify the start date for the performance of duties, the working date following its signing is taken as it.

The legislation does not provide for such a procedure at the request of an employee, which means the following: even if the hired person has changed his mind about getting a job, an application for cancellation should not be taken, and a termination agreement is not required. This is dictated by Article 61 of the Labor Code of the Russian Federation.

It turns out that it is impossible to establish the invalidity of the contract on the first day. The deadline for doing this is not fixed in law.

The legislator does not make distinctions for different categories: a legal relationship has arisen with a pregnant woman, or with someone who does not belong to a preferential category.

In this case, an agreement that has not taken written form is considered concluded if the newly hired one has begun to work, the management of the enterprise knows about this, or, moreover, has instructed him to complete the task. The document must be drawn up in writing three days from the date of release of the newly accepted document.

The procedure includes establishing the fact, preparing the necessary documents, issuing an order and making changes to the documents. Will be discussed in more detail below.

The same rules apply. There are also differences. The administration of the organization will have to notify the migration authorities in connection with the absence of a foreigner from work or his refusal to start work (subparagraphs 7, 8 of paragraph 8 of Article 18 115-FZ of July 25, 2002).

Cancellation will not be possible. An employee can only be fired for absenteeism.

If a citizen files an appeal against the administration’s decision in court, it is necessary that the documents are drawn up correctly.

You cannot simply destroy the agreement. The worker is guaranteed payments under compulsory insurance.

The fact that the worker did not start work is recorded. The immediate manager of the department where the absentee was supposed to work draws up a report and an act of cancellation of the employment contract. It is better to draw up a report or act shortly before the end of the first working day to eliminate the possibility of an employee showing up. The act is drawn up in the presence of at least two witnesses.
An order is issued to cancel the employment contract.

Example

“Cancel employment contract No. 102 dated 10/04/2018.

Cancel the order to admit E.P. Korostylev. controller of radio-electronic equipment and devices of the 6th category.

Invalidate the admission record.

Reason: act stating that Korostylev E.P. did not start work dated 10/05/2018, memo from foreman T.G. Krivilev dated 10/05/2018"

An order to cancel a fixed-term employment contract is drawn up in the same form.

If a personnel service specialist hastened to make an entry in the labor report about the hiring of an employee, according to the rules specified in Art. 66 of the Labor Code of the Russian Federation, it is entered after five days of labor, you will have to make a note about its invalidity.

According to the rules for maintaining and storing work books, introduced by Decree of the Government of the Russian Federation dated April 16, 2003 No. 225, in column 3 of the section “Information about work”, “Entry for No (specify number) is invalid.” The basis is indicated by the order of the head of the organization.

Employee notification. The citizen is introduced to the order against signature. If he does not appear, the order is sent by registered mail with a notification containing a list of the attachments, in which they are asked to appear for documents or agree to be sent by mail.