Entry into force of the employment contract

Business lawyer > Labor law > What needs to be taken into account when an employment contract comes into force. Rules and terms for the entry into force of the document

Applicants for vacancies go through a difficult path: stressful interviews, knowledge tests, waiting for the results of a security check. When all the stages have been completed and the coveted job offer has been received, you can prepare for employment. After submitting documents to the HR department, the applicant is registered with the staff on the basis of an employment contract that has entered into force.

Date of entry into force of the employment contract

An employment contract usually comes into effect on the day it is signed. However, if the contract specifies other dates, then they are considered valid.

By starting work ahead of time, the employee does not have any rights and obligations under the contract. Again, unless otherwise stated in the contract. If the contract does not specify the start date of its validity, then the employee is obliged to begin his duties on the next day after signing.

Also, the contract may not specify specific start dates, but a period after which the employee is obliged to return to work. For example, after a month or a week after imprisonment.

Such cases are rare and in most cases are concluded with enterprises providing seasonal or periodic work.

An employment contract is a document that sets out the working conditions for both the manager and the employee. The Labor Code provides for the procedure for drawing up a contract and assigning rights and obligations in Articles 21 and 22.

The entry into force of an employment contract implies the beginning of the fulfillment of the terms and conditions by the parties to the contract. If the employment contract is not drawn up correctly, then the start of work is considered to be the day on which the employee actually began his duties.

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general information

The relationship between an employee and an employer must be regulated by an appropriate document. Therefore, the parties are obliged to enter into an appropriate agreement. With the help of this agreement, the manager undertakes to provide the person with a workplace and payment for performing professional duties. And the subordinate, for his part, guarantees its implementation, as well as compliance with all disciplinary rules established at the enterprise.

Since the agreement is recognized as an official document, it must have a certain time frame for entry into force.
The entry into force of the employment contract is the moment from which the employee is obliged to begin the direct performance of his work. The date may not be indicated, but this does not affect the validity of the contract. https://youtu.be/7GH0zy7iPfw

Cases when an employee did not start work within the specified period

If the employee does not begin duties on the contract start date, the manager has the right to terminate the contract. Sometimes the contract specifies a period that is given to the employee in cases of force majeure. For example, the contract may specify the date it comes into force and the period within which the employee is obliged to begin fulfilling his obligations.

If the employee fails to show up for work, the contract is canceled and is considered not concluded. The manager is not obliged to find out the reason for the employee’s absence from work. In this case, the manager does not bear any responsibility to the employee, and the employee does not have any rights in relation to this enterprise.

But an employee is not deprived of the right to receive compulsory social insurance payments if an insured event occurs during the contract period.

If an employee does not come to work for a good reason, then he needs to notify management about it, and then confirm it with documents. In this case, the manager draws up a special act in which all documented facts are written down. If the employee cannot prove that his absences are justified, then the contract is terminated, and this act is considered the official reason for termination.

The Labor Code does not prescribe a waiting period for an employee at the workplace if he went on sick leave immediately after signing the contract without starting his duties. How long a manager should wait for his employee is not regulated by law.

In addition, the manager does not have the right to hire another employee for this position. But the manager can cancel the contract by notifying the employee. And if the employee does not protest against the cancellation, the manager can hire a new specialist.

An employee’s absence from work and termination of a contract cannot be an obstacle to drawing up and concluding a new contract if both parties to the contract consider this necessary.

Another comment to Art. 61 Labor Code of the Russian Federation

1. When interpreting the moment of entry into force of the employment contract, it is necessary to determine what constitutes the fact of the entry into force of the employment contract and what is the relationship between the moment of entry into force of the employment contract and the occurrence of other circumstances that also have legal significance. Among such circumstances, the following should be mentioned: a) the day of signing the contract; b) day of commencement of work (see Article 57 of the Labor Code of the Russian Federation with comments); c) the day the employee is actually admitted to work (Article 67 of the Labor Code).

2. By virtue of an employment contract, the employee is obliged to work according to a certain labor function, subject to the rules of internal labor regulations, and the employer is obliged to pay him the stipulated salary and ensure the fulfillment of other conditions arising from labor legislation, from the collective agreement (agreement) and the agreement of the parties ( see Article 56 of the Labor Code and commentary thereto). Based on this definition, it should be recognized that the entry into force of an employment contract means, first of all, the emergence of the above-mentioned responsibilities for its parties, i.e. the emergence of an employment relationship. This circumstance, in particular, means the following: a) from the moment the contract comes into force, the labor legal relationship that has arisen between the employee and the employer can be interrupted only on the grounds and in the manner established by labor legislation (see Chapter 13 of the Labor Code and the commentary thereto) ; b) the position for the performance of duties for which the contract was concluded can no longer be considered vacant - with all the organizational and legal consequences arising from this fact; c) the employee, as a party to the labor relationship, may be sent for training, retraining, etc.; d) the time from the date of entry into force of the contract must be counted towards the length of service required to go on annual leave (see Article 114 of the Labor Code and the commentary thereto).

However, the entry into force of the contract may be delayed in time from the moment the work begins. In this case, a number of rights and obligations of the parties, the emergence of which is associated with the fact of the beginning of the employee’s real labor activity, remain ineffective at the time the employment contract enters into force.

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

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

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

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

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

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

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

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

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

The employer has the right to refuse the concluded contract at any time before it comes into force, however, the contract may establish property liability for unjustified refusal of the contract.

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

7. It is necessary to distinguish the moment when the obligations (and rights) of the parties to the employment contract arise, i.e. entry into force of the employment contract, and the moment when the employee begins to actually perform his duties. For example, the parties may additionally stipulate when concluding the contract the start date of work; The employee is obligated to begin performing work duties from that day. Despite the fact that in accordance with Art. 57 of the Labor Code, the start date of work is a mandatory condition of the employment contract, as follows from Part 3 of the commented article; this condition may not be determined by the parties. In this case, the employee’s obligation to start work arises on the next working day after the contract comes into force. Therefore, along with the fact that the employment contract comes into force, the fact that work has begun has legal significance.

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

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

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

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

9. Cancellation of a contract is a right, not an obligation, of the employer. Therefore, if an employee does not start work on time without good reason, the employer has the right to either cancel the employment contract (without ascertaining the existence and content of these reasons), or, considering the employment contract to have entered into force, bring the guilty employee to disciplinary liability, including including dismissing him for absenteeism according to the rules established by the Labor Code (see Articles 81, 193 of the Labor Code and comments thereto). In the latter case, dismissal is carried out either from the day when the employee was obliged to start work, or, if the employee showed up for work and was allowed to work, from the last day of work.

10. Cancellation of an employment contract is carried out by order of the employer. A corresponding entry is made in the work book with reference to Part 4 of the commented article and to the corresponding order. It makes sense to make this kind of entry if an entry about the conclusion of an employment contract has already been made in the employee’s work book: otherwise, an entry is not required.

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

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

The procedure for the entry into force of an employment contract

2 and 3 tbsp. The Labor Code of the Russian Federation clearly regulates the procedure for the entry into force of an employment contract. If the employee does not begin to fulfill his duties prescribed in the employment contract, then the contract loses its force.

The contract specifies the date of its entry into force. If one is not specified, then the employee must begin work the very next day after signing the employment contract. Along with the employment contract, the manager must also issue an order for the employee’s employment. The dates in the order and the contract must match, and this date will be considered the official start date.

If an employee enters a position that needs to be approved, then the order states the date when the manager approved the employee in this position.

Grounds for cancellation of an employment contract

Cancellation is possible at the initiative of the employee.
The reasons can be very varied: an offer from another company, family circumstances, personal reasons. In this case, the HR specialist draws up an agreement in two copies about the cancellation of the contract and the absence of mutual claims. Instead of an agreement, it is allowed to accept an application in any form addressed to the general director with a request to cancel the acceptance order and the contract. The employee signs the order drawn up on the basis of the received application or agreement and receives a work book. Cancellation of the contract
Cancellation is initiated by the employer, who has the right, but not the obligation, to take this action. If a future employee does not begin his job duties on time, the reason may lie in a sudden illness or injury. The HR specialist may take no action for several days and wait for the missing person, but do not forget that from the moment the employee is hired, the employee is entitled to social guarantees.
Separately, about the application form in which the employee explains the reason for absence. Spoken words can be used in illegal actions by both the employee and the organization. To exclude a situation where the employer may be dishonest, providing a written statement with attachments confirming the valid reasons will lead to the correct solution to the problem.

Since the employee has the right to go to court if he disagrees with the cancellation of the contract, the employer should carefully approach the execution of this step. According to statistics over the past five years, the court resolves labor disputes not in favor of organizations.

Required documents:

Memo from the manager of the failed employee.
An act drawn up by a HR specialist in the presence of two or three witnesses. The document must record that the employee has not begun to fulfill the duties prescribed in the instructions to the contract. The act indicates the place and time of drawing up and describes the essence of the problem.
Cancellation order. It should contain a phrase about the cancellation of the admission document.
If you managed to make an entry in the work book, you must make the following entry about the cancellation of the contract.
Notice sent by mail to all known addresses of the employee. In the letter, indicate the place and time of receipt of the work book. If it is not possible to appear in person at the HR department, send by registered mail a statement of consent to send the book by mail. Keep copies of all documents.

Conditions for cancellation:

The employee did not begin his job duties within the period specified in the contract.
Absence from work for more than a week after registration.
The employer has the right to cancel the appointment even if there is a valid reason for non-appearance.
Force majeure circumstances. If an employee is temporarily hired to replace a permanent employee who, for various reasons, planned to be absent for a long time (for example, maternity leave). But suddenly the permanent specialist returns to his position. In this case, the contract with the temporary newcomer is canceled. The possibility of such events occurring must be stated in the document.

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The meaning of annulment is that there is no legal connection between the parties contained in the contract. The date of the canceled document is inextricably linked with the day of the concluded employment contract.

When the employment agreement comes into force, it means that the applicant is legally registered and has begun work. When applying for a job, you need to carefully and thoroughly study all the points of the document and check the details of the agreement, since the contract is the main guarantee of labor rights. In controversial situations with the employer, an employment contract will help to achieve compliance with legal norms and restore justice.

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Cancellation of the contract

If the employee does not begin his duties within the specified period, then, as mentioned above, the manager has the right to terminate the contract with him. But responsibilities in this case mean all the responsibilities specified in the contract.

The wording of contract cancellation will look like “did not start work.” But this does not apply to cases where an employee went to work but did not begin to perform his duties.

If the employee does appear at the workplace, but does not begin his work, cancellation of the contract is no longer possible. In this case, other procedures and rules apply. So, for example, the manager can fire him or take other exacting measures, but not cancel the contract.

Registration of the contract

First, the employer conducts an interview with the employee, after which he applies for the position. This is approximately how almost every employment of citizens is carried out. Registration begins with drawing up and signing an employment contract. The enterprise may develop a special form of agreement. You should know that the employee is obliged to familiarize himself with the contents of the document before signing it.

To formalize the agreement, a future employee of the organization will need:

passport;
work book (if this document is missing, the employer is required to create a new one);
insurance certificate;
military ID (for men).

These are the main documents without which management cannot draw up an employment agreement. But the following may also be important for the employer:

employee's diploma;
a certificate confirming no criminal record;
certificate of passing a medical examination;
permission, patent.

Then the manager issues an order to hire a new employee for the vacant position. A document according to the rules is drawn up for each subordinate and has a specific form - T-1. The subordinate must familiarize himself with the order no later than several days after its publication.

If they have not concluded an agreement, and the employee has already begun his duties, then the director cannot fail to formalize the agreement. Then, when the manager does not intend to do this, the employee has the right to file a claim.

No contract

Every organization is required to enter into a written employment contract between the manager and the employee. The contract must be in two copies, one of which goes to the employee, and the second remains within the walls of the organization. An employee, by law, begins to work from the date specified in the contract, i.e. the contract must be present before the employee begins his official activities. But it is not always the case.

Often an employee begins to perform his duties without signing an employment contract.

This is against the law. If these violations are identified, all consequences fall on the manager; the employee is not responsible for them. Disciplinary, administrative or criminal sanctions may be applied to the manager.

For example, while an employee is working without an employment contract, the manager does not pay taxes. If such cases are detected, a fine is imposed on the manager. In addition, the manager will be required to pay all hidden taxes.

If a manager, without concluding a contract with an employee, infringes on his rights (for example, does not pay wages, detains him at work, does not pay sick leave, etc.), then he may incur criminal liability under Article 293 of the Criminal Code of the Russian Federation “negligence.” "

Individual cases

So, if the employment contract does not stipulate the date for the employee to return to work, then the document is considered valid from the day the employee begins to work. This rule also applies when the agreement has not been formalized in writing, but the employee is already performing his functions on behalf of the employer.

In practice, many subordinates begin to work without prior registration, hoping for an early signing of an employment contract. The following nuances must be taken into account:

Only an official vested with these powers can involve a subordinate in real work;
no later than 3 days from the date of actual fulfillment of obligations, the parties must enter into an agreement.

The authority of the official must be confirmed. In other words, in a company, the manager (owner) must draw up a local act, on the basis of which the director or any other employee receives these powers.

The problem is that if a subordinate was allowed to work by verbal agreement, for example, by an assistant director who does not have such rights, then the employee will not be able to prove his employment. This means that he will not receive his earnings, etc. If we turn to judicial practice, it becomes clear that there is almost no chance of proving the legal start of work.

Fixed-term and open-ended contract

An employment contract can be:

urgent;
indefinite.

If the contract does not specify the period for which it is concluded, then it is considered unlimited. If the contract specifies the terms of its validity, then the contract is fixed-term. Such a contract is concluded in several cases:

when hiring an employee for seasonal work;
when hiring an employee to replace a temporarily unemployed employee;
when hiring an employee to work abroad;
when hiring an employee to perform a certain amount of work.

A fixed-term employment contract is considered valid only for the terms specified in it. At the end of the contract, the manager can extend it under the same conditions.