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Dismissal of those who did not start work. We dismiss an employee who has not started work

When applying for a job with a future employee, labor contract. 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 started to perform official (working) duties, it becomes necessary to recognize this agreement as invalid.

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

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

Conditions for canceling an employment contract

Employee initiative

This 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”, etc.

Further actions of the personnel officer imply two scenarios:

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 dated 00.00.0000 No. 00.”
Option 2: The employee and the employer organization enter into an agreement on the annulment of the employment contract. The agreement necessarily reflects that the parties do not have mutual claims against each other, due to the fact that in labor Relations did not enter.

Forms of agreement and statement are not unified by law.

Agreement example:

Agreement Example

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

Agreement on and cancellation are not equivalent terms.

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

Employer initiative

The legislation gives the employer the right, but 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 fulfill his duties.

Absence from work may be due to illness or injury of the worker.

The employer is not obliged to execute 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 contract is recognized as not concluded, the employee will be listed in the organization, and he is entitled to social security by law.

Amendments to Article 61 of the Labor Code of the Russian Federation make it easier for the employer, since the concept of "good" and "disrespectful" reasons is excluded.

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

Employer action plan

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

The employer may be required to provide copies of documents confirming the conclusion of an employment contract and the fact that the employee is absent from work.

Therefore, it is impossible to throw away the employment contract and the order for admission - you should justify your actions.

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

Firstly, it is necessary to formalize the fact that the employee did not start to fulfill his duties by position (profession).

Labor Code does not oblige to use unified form act, it must contain:

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 the employee personnel service in the presence of at least two witnesses.

They are usually the head of the unit, and the person responsible for maintaining 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 the act is usually a memorandum of the head of the department where the employee was admitted.

Examples of drawing up an act:

Sample act on the absence of an employee at the workplace

An example of an act for the annulment of an employment contract

Secondly, an order is issued to annul the employment contract and cancel the order to hire an employee.

Order example:

Sample order to cancel 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 to the address of the organization written agreement for its mailing.

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 Barberry LLC as a plumber. The employment contract was concluded on 02.09.2015. The start date is the next day. AT fixed time Ivanov I.I. did not show up for work and did not start work.

Master of the production site Sidorov S.S. wrote to the director of Barberry LLC Petrov P.P. report on this fact. It was reviewed by the director of the organization, and transferred to the person responsible for maintaining personnel office work, Shishkina Yu.I. In the personnel department, an act was drawn up stating that the employee Ivanov I.I. did not start work.

On the basis of this act, the organization issued an order with the following content:

Order example

After the issuance of the order According to current legislation, the employer is obliged to make an entry about the work in the work book of the employee after five working days.

Therefore, if the employee did not go to work on the first working day, he must receive a work book without a record of employment. If an entry has been made for any reason, it should be cancelled.

The rules for maintaining work books do not contain information on how exactly the 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 the 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 to work in the Russian Federation and is registered with the Federal Migration Service will start working in any case. It remains to be assumed that if such an incident nevertheless occurred, it is necessary to send a notification to the FMS and tax service- the same as when hiring a citizen of another state.

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

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

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

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

Novels of the labor code

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

Table 1

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

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

If an employee fails to start work on time good reasons within a week, the employment contract will be cancelled.

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

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

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

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

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

The rest of the changes are fundamental.

Consider not closed!

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

Day, not week

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

Reasons for absence? Any!

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

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

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

Example 1

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

Example 2

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

Should it be understood, this amendment of the legislator, including so that the management of the organization can dismiss an employee for absenteeism (if the reason for absence from work is disrespectful)? This question is rather controversial. Indeed, before the norm, Part 4, Art. 61 of the Labor Code of the Russian Federation gave an unequivocal negative answer to this question. If the employee did not start work within a week without good reason, the employer had to he was not automatically entitled to cancel the employment contract, and, consequently, he was not automatically entitled to dismiss a new employee for absenteeism. Now the employer has the right not to cancel the employment contract, which means (we mentally add the phrase), he can leave the employee at work ... or fire him. Unfortunately, neither judicial practice, no clarification has yet been made on this matter. And if you decide to impose on the worker disciplinary action, and he will sue you for this, regardless of the decision of the latter (in your favor or not), you can be proud that you have created a judicial precedent.

Eligibility

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

Example 3

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

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

Procedure for canceling an employment contract

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

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

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

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

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

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

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

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

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

Appendix 1

that the employee did not start work

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

in the presence:

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

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

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

Present: Bochkin A.S. Bochkin

Korovin A.F. Korovin

The act was: Kuznetsov I.I. Kuznetsov

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

Annex 2

General Director of ABV LLC

N.N. Slyusarev

from I.I. Gusev

Statement

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

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

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

Annex 3

Limited Liability Company "ABV"

ORDER

About Cancellation

employment contract

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

I order:

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

CEO Slyusarev N.N. Slyusarev

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

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

Two months ago, we registered a new employee (an order was issued, an entry was made in the work book). But he did not start his work duties in due time. Now he has shown up. How to dismiss such an employee?

The situation is non-standard. It is necessary to dismiss such an employee, covering all the rear. Otherwise, one wrong step - and the employer is guaranteed litigation (with the possible reinstatement of the employee at work). We suggest how to be.

The main thing: do not rush to record the employee as a truant. While there was no news about him, in the Timesheet it is necessary to mark his absence for unknown reasons with the letter code "NC" (the numeric code is "28"). It was also necessary to create a special commission consisting of at least 3 people, which would record the fact and find out the reasons for the employee's absence from work. Only if the commission established that the employee was absent without a good reason, absenteeism should be noted in the time sheet - the letter “P” (the numeric code is “24”).

It would not hurt to send to his home address letter with a return receipt, in which to require a written explanation of the reason for the absence from work.

Attention: not absenteeism Absence from work of employees due to their movement from the areas of the ATO, as well as those who, remaining in such areas during the ATO, were unable to go to work due to the danger to life and health (see. letter from the Ministry of Social Policy July 8, 2014 No. 7302/3/14-14/13).

Obviously, in your situation, a decision was made to wait for the unfortunate worker, without finding out the reasons for the absence. What if he nevertheless appeared on the threshold of the enterprise?

To get started, ask explanatory as prescribed in Art. 149 of the Labor Code of Ukraine dated 10.12.71(Further - Labor Code). Unless, of course, you have not received it before. Is the employee refusing? Draw up an appropriate Act. Next, you need to respond depending on the clarified circumstances.

If the reasons for the absence are valid, it is too early to talk about dismissal. Note: to evaluate the "respectfulness" of the reason for the absence of an employee at work in each case will be employer, and in the event of a labor dispute - court. By the way, practice shows that a good reason, in particular, can be recognized as an illness of an employee, even if it is not confirmed by a certificate of incapacity for work.

Did the employee have a good reason? Then the employer has a 100% right to fire him (although the employee has not worked a day). But the cancellation of the order for employment in this case is better not to practice. Under what article to dismiss your loafer?

If the employee asks, and the employer does not mind, then you can part "in an amicable way." For example, "by own will» ( Art. 38 Labor Code) or "by agreement of the parties" ( paragraph 1 of Art. 36 Labor Code). Of course, no payments and compensation to the employee in this case are not expected, as well as vacation.

But if it didn’t work out in a good way, then we are considering the possibility of dismissing the employee for absenteeism based p. 4 h. 1 art. 40 Labor Code(“Article” is mentioned in the labor). But! You can be fired for absenteeism no later than 1 month from the date of detection of absenteeism, excluding the time when the employee was ill or on vacation, and no later than 6 months from the date of its commission.

Important: to dismiss for absenteeism is the right, not the obligation of the employer. In principle, you can get off with a reprimand. But simultaneously reprimand and dismissal are not allowed!

And one more thing ... Information about the employee must be entered in table 5 of the Report in form No. D4. But in form No. 1DF, you do not show such an employee, because there is no accrued income.

May such incidents never happen again!

Klyzhenko Yana, salary expert

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 should actually start work). Next, a personal card is issued in the form N T-2, if necessary - a personal file and other documents. If the employee did not go to work on the day it began and the employer decided to cancel the employment contract, then the following documents are drawn up. First you need to fix the fact that the employee was absent from the workplace on the day the work began. As evidence, a corresponding memorandum addressed to the head of the enterprise, registered in the manner prescribed by the organization, as well as an act on the employee's absence from work on the day the work began, can be used. Supply Department Director of Federal State Unitary Enterprise "Splav" B.O.

Cancellation of the employment contract

For what period will the temporary disability benefit be paid? Temporary disability benefits will also be paid from 06/14/2010 (since this is the day the work starts) until the day indicated on the sick leave.

If this period exceeds 75 days, then the payment of benefits is terminated.

Documentation After concluding an employment contract with an employee, the employer must issue an appropriate order (Art.
68

Labor Code of the Russian Federation) in the form N T-1, approved by the Decree of the State Statistics Committee of Russia N 1.

Next, an entry is made in the work book. We recall that according to Art.

66 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 event that the work this employer is essential for the worker.

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

For what period will the temporary disability benefit be paid? In this case, temporary disability benefits will be paid from 06/14/2010, since this day is the day the work began (but not from 06/07/2010), to 06/16/2010.

If the disease and injury occurred in the period from the day the employment contract was concluded to the day it was cancelled, temporary disability benefits (except for tuberculosis) are paid for no more than 75 calendar days.

Attention

Example 2. Let's take the data of the first example. On the appointed day (06/14/2010), the employee did not go to work, having warned 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.

Rules for canceling an employment contract

Important

Tropinin June 14, 2010 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 cancel the employment contract. In addition, if a hiring order has been issued, an order must be issued to cancel the hiring order for the employee.

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 June 15, 2010

Tula On the annulment of the employment contract And the cancellation of the order for employment Due to the fact that Iskrova Olga Ivanovna, with whom an employment contract was concluded on June 3, 2010, on June 14, 2010

Article 61. entry into force of an employment contract

Labor protection If the employee did not start work on the day the work began, the employer has the right to cancel the employment contract.

The canceled employment contract is considered not concluded.

views — 80 With persons sent to work abroad; For the duration of temporary (up to two months) work; Fixed-term employment contract For an indefinite period; Term of an employment contract Employment contracts may be concluded: 2) for a fixed period of not more than five years (fixed-term employment contract), unless another period is established by this Code and other federal laws.
A fixed-term employment contract is concluded when labor relations are not established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation.
A fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its performance.

Open library - open library of educational information

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 should actually start work).
<2 Постановление Госкомстата России от 05.01.2004 N 1 «Об утверждении унифицированных форм первичной учетной документации по учету труда и его оплаты».

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

First you need to fix the fact that the employee was absent from the workplace on the day the work began.

Dismissal of a new employee who has not started work

In the same way, the employee does not bear any responsibility for non-fulfillment of labor duties. It is allowed to cancel the signed employment contract already on the next day after the day when the employee did not appear at the workplace.

However, this is not considered the duty of the employer. If you are interested in an employee, it is not necessary to cancel the concluded contract.

It is possible to resolve the differences and continue the employment relationship. Video: Legal advice.

How to cancel an employment contract

In addition, if a hiring order has been issued, an order must be issued to cancel the hiring order for the employee. 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 June 15, 2010 Tula On the annulment of the employment contract and the cancellation of the order for employment Due to the fact that Iskrova Olga Ivanovna, with whom on 03.06.2010 was an employment contract was concluded, on June 14, 2010 (the day established by the employment contract the beginning of work) did not start work, I order: 1.

Cancel the employment contract dated 03.06.2010 N 15/10.

Cancel the order of 06/03/2010 N 15-k on employment.

Reason: act dated 14.06.2010 N 21 that Iskrova O.I.

If the employee did not start work on the day the work began, the employer has the right

Markov dated 08/07/2012 N 5 Memorandum on the absence of an employee at the workplace on the day the work began his first day of work, determined by the employment contract, - 08/06/2012. Kochkina L.I. informed the chief accountant Petrova T.V. about the reason for her absence from the workplace on 08/06/2012 at 16.00, saying that she could not leave on the first day of work due to poor health. In connection with the need to perform the function for this position, as well as the availability of a candidate for another employee who is ready to start working as an accountant on 08/08/2012, I ask you to consider the possibility of canceling the employment contract with Kochkina L.I. in accordance with Part 4 of Art. 61 of the Labor Code of the Russian Federation. Application: act dated 08/06/2012. Head of the personnel department Maslova /O. N.

If the employee did not start work on the day the work began

If the termination of the employment relationship does not occur due to the expiration of the contract or as a result of termination of the contract, and the relationship is terminated without having begun, then a procedure referred to as the cancellation of the employment contract is assumed. What does this term mean, and what actions of the parties are expected in this case? 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. According to this provision, the moment from which the employment contract is considered valid is determined. It also indicates who and for what reason has the right to cancel an already concluded contract. Cancellation of an employment contract means that the previously signed document loses its legal force, that is, any agreements under the agreement become invalid.
If the employee never showed up, you need to send an order to cancel the employment contract by registered mail with a mandatory notification and a list of all attached documentation. After the cancellation procedure is fully completed, the employee of the personnel department must make a note on the canceled document - “The employment contract was canceled by order number such and such, from such and such date”, and then witness the inscription with the signature and seal of the organization.

Peculiarities of cancellation of an employment contract due to absence from work It is not advisable to cancel the contract during the first day.

According to the legal requirements for the legitimacy of the procedure, the employee must not start work during the first day.

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

If the employee did not start work on the day the work began, then the employer

In this regard, another question may arise: within what time from the day indicated as the day the work began, the employer has the right to cancel the employment contract if the employee did not start his duties on that day? Is the employer entitled, while waiting for the employee, for example, for two weeks, to still cancel the employment contract if the employee has not come to work? The Labor Code does not contain restrictions on the period of time during which a decision can be made to annul an employment contract if the employee did not go to work not only on the day the work began, but also on subsequent days.

Therefore, it seems correct that the employer has the right to exercise this right at any time before the employee goes to work.

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

Let's analyze how this can manifest itself in practice, what it brings to the employee and employers, and what it can be fraught with in case of dishonest performance of one's legal duties.

What does "permitted to work after the fact" mean?

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

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

Getting to work without drawing up a document on mutual obligations, the employee does not get acquainted and does not sign a number of other mandatory documentation:

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

An employee who does not know his rights may think that the other party has complete power over his working hours, wages and working conditions. The Labor Code of the Russian Federation protects the weaker side of labor relations and legally equates the actual admission to work to the full conclusion of an employment contract, even if it is not properly executed.

Lines from the Labor Code of the Russian Federation

The equalization of the rights of actual admission to work and an employment contract was still in effect in Soviet labor legislation (Article 18 of the Labor Code of the RSFSR). In the Labor Code of the Russian Federation, the legal regulation of this problem is significantly expanded:

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

Employment contract = actual admission

The legal equality of these two ways of starting an employment relationship lies in their legal consequences. It is considered that the employee who has started work has already concluded an employment contract orally, and its written execution cannot be delayed for a period exceeding three working days.

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

Date difference. The contract is not signed "retroactively", therefore, it will contain a later date than the one when the employee actually started work (the day the work began is indicated separately in the text of the contract).
Entry into force. This contract will come into force from the day of admission to work, and not the moment of conclusion, as is the case in the usual manner.

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

How is the actual work permit issued?

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

oral agreement;
writing an application for admission to work by an employee;
order or order for admission;
service (report) note, fixing the fact of the start of work at a new workplace.

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

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

Evidence of actual admission to work

If the employer did not record the moment of admission of a new employee, how can this be proved if it is necessary to protect one's rights?

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

Evidence of an employment relationship in court can serve:

access to the territory of the organization;
providing an employee with a workplace;
acts on the receipt by him of stationery, materials, overalls, etc.;
document on passing a medical examination;
surname of the employee in plans, programs, lists, etc.;
audio or video recordings where the representative of the employer gives instructions to the employee, and the employee performs the work;
testimony of witnesses;
an agreement on liability (sometimes it is concluded “bypassing” the labor one, where there is interaction with certain values);
other evidence.

Actual admission and probationary period

Can we talk about entrance examinations if you need to start working so urgently that it is not possible to pre-register an employment contract, where all the conditions of the probationary period are usually prescribed? Usually not. The actual admission to work, as it were, by default fixes the suitability for it of the employee accepted in this way.

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

If such an agreement has not been drawn up, the employer does not have the right to establish a probationary period during the subsequent execution of an employment contract.

Consequences of admission to work after the fact

If, within the three-day period provided for by law, the employer duly formalized the labor relations that have arisen, no additional legal consequences arise. It's just that a new employee has appeared in his staff, another representative of the staff. Consequences occur if the rights of the employee are violated by improper performance of the duties of the employer:

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