Cancellation of an employment contract: in what case is this done, how to formalize it, consequences for the parties

Cancellation of an employment contract is a rather rare procedure: commercial organizations generally prefer not to formalize it (including because it is not enshrined in the Labor Code of the Russian Federation), and institutions financed from various levels of the budget try to ensure that this simply does not happen. To do this, they generally enter into an employment contract on the day they go to work and are not interested in the procedure for canceling the contract. However, such a situation is possible (for example, when they found a valuable employee and, in order not to lose him, signed an agreement, but he did not show up for work). So that you are prepared for it and do not make mistakes when canceling, today we will tell you in what cases cancellation is possible, and also answer a number of questions: is there a deadline for canceling an employment contract; Is it possible to cancel an employment contract if a newcomer started work on the second day, but did not have time to cancel the contract on the first day of work; what if the employment record has already been entered into the work book?

Cancellation of an employment contract: explanation of the concept

Article 61 of the Labor Code of the Russian Federation gives the right to cancel an employment contract. The acceptance agreement will be considered not concluded. This means that its provisions are not binding on the parties. The procedure is possible as long as the employment relationship has not actually begun, that is, the employee has not fulfilled the terms of the contract.

An employee is considered to have assumed duties in the following cases:

• he attended the briefing;
• completed an internship, practice;
• attended organizational events, meetings;
• was present on the first working day.

In case of cancellation, both parties are deprived of the rights and obligations acquired after signing:

1. The employer does not provide the necessary premises, tools, and does not transfer wages and taxes. It does not require the subordinate to fulfill the conditions stated upon acceptance.
2. The employee is relieved of official duties and does not require wages or transfers to tax authorities.

It is recommended to pay attention to the differences between the process of invalidating a contract and its termination.

Commencement of the employment contract

The admission agreement is valid after signing or from the day specified in the text. But the employment relationship is considered to begin from the first start at work. If the employee does not begin to perform his duties on time, cancellation can be made.

The law regulates 4 types of acceptance agreement:

• concluded after the actual start of work;
• without specifying the first day;
• with the start date of the employment relationship later than the conclusion of the contract;
• The employee begins work immediately after signing.

It is important to know! The difference between legal and actual entry into force allows the employer to invalidate the concluded contract.

Consequences and nuances

In this case, both sides lose almost nothing. The company does not receive an employee who has changed his mind about being one, and he saves himself and those around him from unnecessary red tape in the future. This can be equated to refusing a deal through inaction, only in this case the failed employee refuses to enter into an employment contract. The legislation does not provide for any penalties for this, and the employee’s reputation in the labor market does not fall. If before trying to get a job he was registered with the Employment Center as unemployed, then it is not even necessary to notify anyone. A non-concluded agreement is non-existent and does not entail any legal consequences.

The greatest difficulty for lawyers is in situations where there is some serious deviation from general standards, which, nevertheless, does not violate the laws. In order to know that the absence of an employee on site on the first day is definitely a formal reason for canceling the contract, you need to clearly establish this day. From the above it is clear that this is either the day the contract was signed, or the day that is explicitly indicated in it, or the day following it. But the fact is that there may not be a written agreement at all.

Thus, Article 67 of the Labor Code of the Russian Federation states that if an employee has begun to perform duties by virtue of an oral agreement, on behalf of the employer and with his knowledge, then the contract is considered concluded. A paper with a “wet” signature may appear later, within three days. At the same time, some records and papers sometimes appear in a random sequence. For example, there is already an order, but the employment contract has not yet been signed. The employee did not show up on the first day - whether this is considered a reason for canceling a contract that does not yet exist physically, but someone has verbally promised something to someone, no one knows for sure.

This is important to know: Is it possible to terminate a fixed-term employment contract with a pregnant woman?

Likewise, it is not clear to everyone how long an employer can wait. For example, an employee has not come for a week - can the contract be canceled or does it now need to be terminated in another way? There is no clear answer to this question either.

Still have questions? Find out how to solve exactly your problem - call right now:

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Russian courts proceed from the fact that the employer can respond to absence from work at any time, since these were the changes in the Labor Code, enshrined in No. 90-FZ dated June 30, 2006.

Grounds for cancellation

The only reason for cancellation is the employee’s absence from the first day of work. If the employment relationship began before or simultaneously with the signing, invalidation is not possible. The employer has the right only to terminate the contract. The first return to work must occur on the date specified in the agreement or on the next weekday if there is no such day.

The reason for the omission does not affect the legality of the process. The employer may not find out the reason for failure to appear. Even with a medical certificate or other valid circumstances, cancellation remains possible. The employee retains the right to insurance benefits. It is important to remember: missing the first day means the employee is absent from the beginning to the end of the shift.

At the request of the employee

Cancellation of an employment contract at the initiative of an employee is not regulated by law.

If such a need arises, you can do the following:

1. Ask for cancellation. The subordinate draws up a written request addressed to the director.
2. Conclude an agreement. A decision to invalidate the contract is jointly signed. The absence of claims on the part of the employer and subordinate is indicated. The procedure eliminates the need to record a pass.

The application and agreement are written in any form; the rules for drafting are not reflected in the legislation. It is important to monitor the accuracy of statements.

Foreign citizens

According to Federal Law No. 115-F3, employers can involve foreign citizens in their activities. Recognizing such an agreement as invalid if the first day is missed is not prohibited. It is recommended to notify the territorial FMS office.

The employer signs an obligation to pay the foreigner’s expenses related to expulsion or deportation from the Russian Federation. The case is governed by Article 13.2 paragraph 6.

Attention! If, due to the cancellation of the contract, the contracted employee is forced to leave the country, costs will be required.

Special cases

The scope of application of the possibility of canceling a contract when new employees are added to the staff is quite wide. It is recommended to pay attention: the reason for missing the first working day does not matter, no matter whose fault it occurred.

Recognition of an agreement as not concluded is possible with the following citizens:

1. With a subordinate hired to replace a temporarily absent subordinate, if there is no longer a need for a replacement. An example would be the unexpected cancellation of maternity leave due to termination of pregnancy.
2. With a specialist invited to work on a failed project.
3. With an employee hired shortly before the company closed.

In what cases can cancellation be carried out?

When deciding in which case the employer has the right to cancel a signed employment contract, you need to take into account that this can only be done if a new worker fails to take his place.

Cancellation occurs without taking into account the reasons why the employee did not start working. In this regard, it can be initiated by both the employee himself and the employer.

Employer initiative

The right to cancel an employment contract is given only to the employer.
But for this he must have a reason - failure to show up for work by a company employee on time to begin a labor relationship. It is possible to cancel a previously drawn up employment contract even in the first hours of the day, when the new employee was just supposed to begin performing his functions at work.

At the same time, the administration has the right to cancel the contract, even if the individual had valid reasons for not being at the workplace at that moment.

Is it possible to perform this action on the initiative of the employee?

It is important to remember that cancellation of an employment contract is established as a right of the employer, which he can use or not.

About the terms of cancellation of an employment contract

Federal Law No. 90-F3 amended Article 61. Before the amendments came into force, the contract was recognized as not concluded if the subordinate did not appear for a week and did not have valid reasons. Now all you need to do is miss the first shift. The employer can wait an unlimited amount of time for the employee before canceling. The only required condition is that the employment relationship remains uninitiated. If the employee returns before the document is declared invalid, only dismissal will be possible.

Agreement cancellation procedure

After being hired, the employee formally joins the organization's staff. He can go to court and demand wages for the period of absence. The employer will have to prove the legality of the cancellation. To avoid problems, it is recommended to follow the order of the procedure.

How to cancel an employment contract:

1. Draw up a report in the presence of witnesses recording the employee’s failure to appear on the first day.
2. Issue an order to cancel the contract.
3. Cancel the order to enroll the employee, if one has been drawn up.
4. If necessary, make changes to the work book.
5. Return the work book or notify about the need to pick it up.

The form of the act and order is not reflected in the legislation. Therefore, it is recommended to avoid inaccuracies when compiling them.

Certificate of absence

The first step is to notify the head of the organization in writing. This is done by the newcomer’s immediate supervisor or a member of the HR department. He draws up a report or memo addressed to the director. The name of the absentee and the date are indicated.

The act is the main document confirming the employee’s absence. The format is not regulated by law. The drafting is carried out by an employee of the HR department together with two witnesses.

It is recommended to specify:

• Full name of the employee;
• position held;
• date and time of no-show;
• data of the component and witnesses.

The document is signed by the three people taking part in the writing. The head of the organization puts his resolution on the act and sends it along with a note to the personnel department.

Order and rules for its preparation

The order can also be given orally; there are no rules prohibiting this. But in order to prove the validity of the procedure in court, it is recommended to issue a written order to cancel the employment contract.

The leader of the organization mentions the following:

• the reason for recognizing the contract as invalid can be referred to the drawn up act;
• Full name of the absent subordinate;
• details of the employment contract.

The employer signs and seals the document. The copy kept by the organization is supplemented with a record of cancellation with the order number. Papers related to the case should be retained in case of legal action.

It is recommended to notify the employee:

• in person against signature if you come to the organization;
• document the refusal to familiarize yourself with an act;
• send the order by registered mail with notification and a list of documentation.

The employer draws up an order to enroll the employee within 3 days after signing. If the order has already been given, it should be canceled. This can be done as a separate document in any form. It is allowed to supplement the cancellation order with a canceling entry.

Entries in the work book

An article of the Labor Code of the Russian Federation obliges the manager to keep work books of subordinates who work under him for more than 5 days. But the HR department does not always assume the possibility of an employee leaving quickly. Registration can be made in advance.

Advice! An invalidated agreement does not require entering data into the work book. If there is no acceptance mark yet, nothing should be changed. Otherwise, amendments must be made. The sample looks like this: “The entry... has been declared invalid. The employment contract (details) was canceled by order No.... in accordance with Part 4 of Art. 61 Labor Code of the Russian Federation."

The manager's responsibilities include returning the work book. If the employee appears in the organization, it can be handed over during a personal meeting. Otherwise, a written notification is sent with a request to receive the book or allow mailing.

Order of conduct

Cancellation must be carried out in full accordance with the specified algorithm. Otherwise, problems may arise. For example, an employee did not show up for work on the first day. A manager who does not know the law well simply breaks the employment contract. However, the employee has a second copy of the document. If the employer does not allow him to work, citing a breakdown in relations, the specialist may well go to court. The cancellation was not carried out legally, the employee’s absence from the company during working hours was not recorded, and therefore filing a complaint is a completely justified measure. Essentially, in the circumstances under consideration, the specialist will continue to be registered with the company.

The cancellation algorithm will be as follows:

1. The procedure, the consequence of which is the termination of the contract, can only be started if the employee is not present on the first working day.
2. The employer issues a cancellation order.
3. The corresponding mark is made in the agreement. For example, you can make something like this.
4. If the manager has already issued an order to hire an employee, this document must also be canceled. An order is issued for this purpose. An alternative option is to put a corresponding mark on the document and certify it with the signature of a representative of the HR department.
5. If an entry for employment has already been made in the specialist’s work book, it is canceled by placing a mark of termination.

FOR YOUR INFORMATION! The book must be returned to the employee.

Employer's powers

The manager has the right to invalidate the employment agreement. This can be done any time after missing the first day and before the subordinate returns. The employer reserves the right to wait for the no-show without taking any action.

Contingent restrictions are obligations imposed after signature. The employee may not appear or communicate, but will formally be on the organization’s staff. This requires the employer to contribute wages and taxes. Also, the subordinate retains the right to payments for compulsory social insurance.

Employee rights

Despite the agreement being declared invalid, the employee may receive payments for a number of reasons.

Social insurance

Amendments made to the Labor Code of the Russian Federation allow an employee to retain the right to benefits for temporary disability or in connection with maternity. Federal Law No. 225-F3 specifies actions in such a situation.

There are 2 different options when the employer pays the benefit:

1. The insured event occurred during the period between signing and cancellation of the contract. Payments for temporary disability are made until recovery, but not more than 75 days. An exception is tuberculosis, for this disease compensation is provided for an unlimited time until adjustment or assignment of a disability group.
2. At the time the sick leave was granted, the agreement remained in force. Insurance payments will stop after restoration of working capacity or assignment of a disability group.

The law obliges the employer to transfer benefits from the first working day. If sick leave is opened in advance, funds are paid from the date of the expected start of the employment relationship.

Compensation for medical reasons

An employee with a valid employment contract is insured against accidents or occupational diseases. Compensation is due if an employee is injured during the performance of duties while using official transport.

The agreement is invalid if the employment relationship has not begun. This means that occupational diseases and work-related injuries are impossible.

It is important to know! The employer is obliged to pay compensation to a subordinate who was injured while traveling on official transport.

Arbitrage practice

Despite the rights granted to the employer, in litigation the courts side with the worker. The manager needs to remember that any ambiguous positions will be interpreted in favor of the employee. In court, the employer may be asked for these documents:

• An employment contract with signatures of both parties.
• Report of employee's absence from work.
• Cancellation order.
• Memo about absence from the manager to the boss.
• Notification of sending a registered letter if the employee cannot be familiarized with the order in person.
• Entry of cancellation in the employee’s work book.

To prove the case in court, the employer must comply with all formalities. You must have all the necessary documents, even if they are not required by law.