Procedure for canceling an employment contract. In what cases is it possible to cancel an employment contract? In what cases is an employment contract canceled?

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

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

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

Current legislation obliges the employer to enter into a cooperation agreement with the person he hires and appoints to the position. The employment contract must be in writing. It is drawn up in two copies, one for the manager, the second for the employee. The contract is handed over to the worker against signature. The fact of receipt must be confirmed by a mark on the manager’s copy. The agreement is signed by the parties and certified by the company's seal. In most cases, the document is agreed upon with the trade union body.

If the worker was actually allowed by the manager to perform the duties of his position, this is considered the beginning of an employment relationship. In this case, the agreement must be signed within three working days from the date of commencement of activity.

Determining the date of return to work

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

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

If the start date of work is not reflected in the agreement, then the person must begin performing his duties from the moment the document enters into force.

Employee's absence on the first working day

In practice, there are cases when a person does not begin his duties on the appointed day. Absenteeism may not always mean that the worker is violating his obligations. To avoid problems in the future, you need to act correctly.

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

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

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

Fixation methods

In accordance with the requirements of current legislation, a person cannot be dismissed from work only if there is the very fact of his absence. Everything must be documented, since the manager needs reasons to issue the appropriate order.

The manager may request a written explanation from the person. Failure to provide such a document is not an obstacle to further action. The reason for issuing an order may also be a memorandum from the employee’s immediate superior.

Drawing up an act

Regardless of the availability of written explanations that were requested from the worker, the manager is obliged to draw up another document. This is what the act is. This document must be drawn up correctly, in accordance with legal requirements. The drawn up act is a guarantee that there was no biased attitude towards the employee on the part of the management and the cancellation of the contract occurred for justified and not for far-fetched reasons.

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

The text of the act must reflect the following:

1. Date and place of execution of the act.
2. Information about the compiler - full last name, first name and patronymic, position held.
3. Similar information is indicated about witnesses and about the absent employee.
4. Date of absence.
5. Signatures of the compiler and witnesses.

The completed document is handed over to the manager and will be the basis for issuing an order and canceling the contract in the future. It is not necessary to familiarize the employee with the act.

Documenting

The procedure for terminating employment relations requires the preparation of certain papers.

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

Cancellation of an employment order

It is quite simple to cancel the boss’s order. A separate order must be issued for this. This rule is applicable since changes to any document that is related to a person’s professional activities within the company are made only on the basis of the relevant order of the head of the organization.

The text of the document must indicate the following:

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

A copy of the completed order is submitted to the personnel service for execution. It can also be given to the employee at the latter’s request.

Is it necessary to enter a work book?

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

In the case of a complete cancellation of the concluded contract, the entry on inclusion in the company’s staff should simply be cancelled. The work book indicates that the acceptance mark is invalid. In this case, reference is made both to the article of the Labor Code and to the order of the head of the organization.

Legal consequences

Cancellation of a cooperation agreement, in fact, does not have any consequences for either party. This is due to the fact that in such a situation it is considered that the contract simply was not concluded.

In this case, the following circumstances arise:

1. The manager is not obliged to provide the worker with a workplace, the necessary equipment, instruments and tools, as well as pay wages and make tax, pension and other deductions from it.
2. A person should not perform the duties of his position, and the boss, in turn, is deprived of the right to demand this.

Sometimes in practice, cases arise when, having signed an employment contract, an employee does not go to work on his first day. The procedure for canceling an employment contract will help resolve this problem.

What is cancellation of an employment contract?

Such an employment contract is legally considered not terminated, but not concluded (Part 4 of Article 61 of the Labor Code of the Russian Federation). That is, in fact, the employee does not quit, but simply does not start working for the company. This can be a good solution for both the employee and the employer, because the fact of hiring is neutralized without adverse consequences for the employee (there is no fact of dismissal, which means there is no entry in the work book) and for the company (there is no need to launch a formal dismissal procedure, including registration of a number of personnel documents and making entries in the work book). Thus, in fact, the cancellation of an employment contract means its non-conclusion.

How to determine the first working day

The moment the employment contract comes into force is determined by the moment it is signed or the day on which the employee was actually allowed to perform his duties.
As a general rule, an employee begins to perform his duties on the date directly indicated in the employment contract signed by the parties.
However, there are situations when such a date is not specified in the contract. In this case, the employee is obliged to begin performing his duties on the next working (not calendar) day after the employment contract comes into force.
This day is the employee’s first working day.

The concept and procedure for canceling an employment contract

The first and most important thing in this procedure is that cancellation is not dismissal. An employee who does not show up for work cannot be fired for absenteeism - this is confirmed by current legislation and judicial practice. Another important point follows from this: cancellation of an employment contract on the initiative of an employee is possible in the same way as on the initiative of the employer - the employee himself can change his mind about going to work, inform his manager about this and ask to cancel his employment contract. In fact, in this case the company will have no reason to refuse the employee.

However, there is no official procedure for declaring a contract annulled.

In practice, companies are guided by the following procedure:

1. First of all, it is necessary to record the fact of non-appearance. As a rule, the fact is recorded by drawing up a corresponding act. The act only records a fait accompli. The employer does not have to find out the reasons for absenteeism (including from the employee himself) - such an obligation is not provided for in Art. 61 of the Labor Code of the Russian Federation.
   Please note that cancellation of an employment contract is allowed only on the very first working day. If an employee goes to work on the first day, but does not show up, for example, on the second, it will no longer be possible to cancel the contract.
   2. Confirmation of the fact of cancellation of the employment contract.
   In practice, this fact is confirmed by the issuance of a corresponding order.
   3. If an order was issued to hire an employee, an order to cancel it will also be required.
   4. If you haven’t had time to make an entry in your work book (by law, the company has five days from the date of hire to do this), you don’t need to make any entries. The procedure for action in a situation where an entry has been made is not regulated by law. In practice, one of two methods is used: either an entry is made about the cancellation of the employment contract, or the employment entry is declared invalid (indicating that the original order for employment has been canceled and the details of the new order for the cancellation of the employment contract).

IA. KOSTYAN

Ph.D. legal sciences, prof. Department of Labor Law of the Academy of Labor
and social relations, lawyer

Legal fact - circumstances with which the legislation connects the emergence, change or termination of social relations, including labor

Terms denoting termination of an employment contract

Termination of the employment relationship is directly related to the termination of the employment contract. This is due to the fact that the emergence, change or termination of labor relations directly depends on the conclusion, change, or termination of an employment contract, which from the standpoint of legal theory is a legal fact. The grounds for the emergence of labor relations listed in Art. 16-19 of the Labor Code of the Russian Federation, being legal facts, entail not only the emergence, but also change, as well as termination of labor relations. Analysis of the norms of Art. 16-19 of the Labor Code of the Russian Federation allows us to conclude that the basis for the emergence of labor relations is certainly an employment contract (along with possible other additional actions, such as election, appointment, etc.).
The labor legislation of the Russian Federation, establishing a list of grounds for termination of an employment contract, uses various terms:
- termination of the employment contract;
- termination of the employment contract;
- cancellation of an employment contract;
- dismissal of an employee.

Terms denoting termination of an employment contract

Previously, before the adoption of the Labor Code of the Russian Federation, the term “cancellation of an employment contract” was not used in labor legislation

The above terms are different in content and carry different meanings.
The term “termination of an employment contract” is a broader concept in its content compared, for example, with the wording “termination of an employment contract”. Thus, termination of an employment contract, as a rule, is associated with the presence of an expression of will (initiative) of one or both parties to the employment contract. At the same time, termination of an employment contract can be either at the initiative of the employee and (or) employer, or in the absence of the will of the parties to the employment contract.
Let's compare the circumstances of the termination of the employment relationship. There is no initiative on the part of anyone to terminate the employment relationship for the following reasons:
- expiration of the employment contract (clause 2 of article 77 of the Labor Code of the Russian Federation);
- refusal of an employee to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization (clause 6 of Article 77 of the Labor Code of the Russian Federation);
- the employee’s refusal to continue working due to a change in the essential terms of the employment contract (clause 7 of article 77 of the Labor Code of the Russian Federation);
- refusal of an employee to transfer to another job due to health conditions in accordance with a medical report (clause 8 of Article 77 of the Labor Code of the Russian Federation);
- the employee’s refusal to transfer due to the employer’s relocation to another location (clause 9 of Article 77 of the Labor Code of the Russian Federation);
- circumstances beyond the will of the parties (clause 10, article 77 of the Labor Code of the Russian Federation). Termination of the employment contract in these cases is due to
the presence of other circumstances that are not related to the initiative of the employee and (or) employer.
At the same time, a number of grounds for termination of an employment contract provided for in Art. 77 of the Labor Code of the Russian Federation, presupposes the existence of the will of the parties.
These are, in particular, the following reasons:
- agreement of the parties (clause 1 of article 77 of the Labor Code of the Russian Federation);
- employee initiative (clause 3 of Article 77 of the Labor Code of the Russian Federation);
- initiative of the employer (clause 4, article 77 of the Labor Code of the Russian Federation);
- transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective position (clause 5 of Article 77 of the Labor Code of the Russian Federation).
The Labor Code of the Russian Federation provides for these grounds for terminating an employment contract. For example, the grounds for termination of an employment contract provided for in Art. 78 of the Labor Code of the Russian Federation, is an agreement of the parties, in accordance with Art. 80 of the Labor Code of the Russian Federation, the termination of an employment contract is based on the initiative of the employee, etc. All this allows us to conclude that termination of an employment contract is a type of termination.

Grounds for cancellation of an employment contract

If the reason for violating the established start date is unjustified, the employee can be fired for absenteeism

Along with the terms “termination” and “termination” of an employment contract, the legislator introduced an additional term - “cancellation of an employment contract” (Article 61 of the Labor Code of the Russian Federation).
Analysis of Art. 61 of the Labor Code of the Russian Federation does not provide sufficient grounds for defining the concept of “cancellation of an employment contract,” which in practice causes a lot of controversy. In particular, the question arises: how to formalize the cancellation of an employment contract? What should be done in this case: cancel the order (instruction) by which the employee was hired, or issue an order (instruction) to terminate the employment contract with him?
It seems that the cancellation of an employment contract is the recognition of its non-existence due to the fact that the employee refused to fulfill the obligations assumed in the manner and under the conditions provided for in Art. 61 Labor Code of the Russian Federation.
According to Part 1 of Art. 61 of the Labor Code of the Russian Federation, 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. Cancellation (recognition as non-existent) of an employment contract that has entered into legal force due to the fact that the employee, without good reason, did not begin to perform his job duties within the period established by law, entails the recognition of the employment relationship caused by the conclusion of the employment contract as non-existent.
It is unlikely that the cancellation of an employment contract can be considered a type of termination. Termination of an employment contract entails the termination of the employment relationship, which, as can be seen from the above example, never arose. It seems that in the case under consideration, the employer should use its right to cancel the employment contract by canceling the order (instruction) on hiring the employee in connection with the cancellation of the employment contract with him on the grounds provided for in Art. 61 Labor Code of the Russian Federation. Termination of an employment contract in this situation is unlawful, since there are no corresponding grounds in labor legislation.
Within the meaning of Art. 61 of the Labor Code of the Russian Federation, recognition of an employment contract as canceled is carried out by the employer unilaterally. To do this, the following conditions must be present:
- expiration of the period established by law (a week from the moment when the employee was obliged to begin performing his job duties);
- absence of valid reasons for the employee’s absence from work within the period established by law.
Thus, the legislator provided the employee with the legal opportunity to unilaterally choose one of the possible options:
- start work not on time stipulated by the employment contract, but within a week from the moment when he is supposed to begin performing his job duties;
- start work, if there are valid reasons, later than the period established by the employment contract;
- refuse to perform labor duties stipulated by the employment contract in the absence of valid reasons. However, the legislator did not establish clear rules of behavior for the employer in this case.
What to do when an employee, for good reasons, goes to work later than the weekly period established by Art. 61 Labor Code of the Russian Federation? In such a situation, should the employment contract be renegotiated with the employee, changes made to it, and an appropriate order (instruction) issued to change the start date of work?
Labor legislation does not contain rules regulating the lawful behavior of the employer. The opinions of scientists and practitioners on this issue differ. The Plenum of the Supreme Court of the Russian Federation in its resolution dated March 17, 2004 No. 2 “On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation” left this issue without attention.
It seems that in cases where an employee began performing his job duties later than the period established by the employment contract (if conditions exist that allow such behavior), the employer does not have the right to conclude a new (second) employment contract with the employee, since the first one has not been cancelled. Labor legislation does not contain any grounds for its cancellation. Renewal of an employment contract for a new term is possible only with the consent of the employee with the termination of the initially concluded employment contract. Making changes to an employment contract (changing the start time of work) is possible only with the consent of the employee; unilateral changes to the terms of the employment contract in the case under consideration are also not provided for by labor legislation. The issuance of an order (instruction) to change the start date of work is possible only if changes are made to the employment contract (conclusion, re-conclusion of the employment contract). This follows from the content of Part 1 of Art. 68 of the Labor Code of the Russian Federation, according to which employment is formalized by order (instruction) of the employer, issued on the basis of a concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
Thus, if an employee starts work later than the established deadline and there are conditions that allow him to do so, the employer has the right to choose one of the following actions:
- by agreement with the employee, make changes to the employment contract regarding the start time of work and issue a corresponding order to amend the order (instruction) on hiring the employee;
- by agreement with the employee, conclude a new employment contract, terminating the previous one on the grounds provided for by the Labor Code of the Russian Federation, other federal laws for certain categories of employees with the issuance of the corresponding order (instruction) on hiring the employee;
- in the absence of the employee’s consent, leave the employment contract originally concluded with the employee and the hiring order (instruction) unchanged, indicating the actual work time (including the actual start of work) in the work time sheet.
In the event of cancellation of an employment contract, it seems logical for the employer to issue a corresponding order (instruction) to cancel the order (instruction) on hiring an employee in connection with recognition in accordance with Part 4 of Art. 61 of the Labor Code of the Russian Federation, the employment contract was annulled.
According to clause 5.1 of the resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69 “On approval of the Instructions for filling out work books,” an entry about dismissal (termination of an employment contract) in the employee’s work book is made in accordance with the order (instruction) or other decision of the employer. The date and number of the order (instruction), as well as the reasons for the employee’s dismissal contained in it, are entered in the work book.
Mistakes made by the employer when formalizing the termination of the employment contract may have negative consequences for him, since they are the basis for reinstatement of the employee at work.

When hiring an employee, a contract is concluded with him. In certain cases, this document is canceled. The reasons for this decision, the algorithm of actions and the consequences are described in more detail below.

The essence of cancellation of an employment contract, differences from termination

To determine the legality of actions in the process of canceling this document, you should know the date of its entry into force.

According to the Labor Code of the Russian Federation, as well as Federal Law No. 90 of June 30, 2006 and Federal Law No. 421 of December 28, 2013, the employment contract is legitimate:

1. from the moment of its conclusion by the parties to the labor relationship;
2. from the moment the employee begins to perform his functions as reflected in the job description (with his knowledge or by administrative order).

The staff unit begins to fulfill its obligations from the moment mentioned in the document. If there is no mention, the day you return to work is the date following the entry into force of the contract. If the employee does not go to work on this day, the employer can cancel the TD (employment contract), that is, the document loses its legislative force, and all its provisions lose validity.

Reasons for canceling an employment contract

The reasons for canceling a TD may be the following (Part 4 of Article 61 of the Labor Code of the Russian Federation):

However, if the manager does not want to exercise his right, he can maintain the working relationship. So, the manager can wait for the employee to appear, and then apply it in accordance with the current legal norms of the Labor Code.

Cancellation of an employment contract due to absence from work

If a staff member does not show up to the workplace, it is impossible to cancel the contract in the first hours. According to the current legislation, in order to apply such a measure, the employee must be absent for the entire first working day. If he comes to the end of it, then, formally, he is considered to have appeared on the day appointed by the contract and the cancellation of the contract due to failure to appear in this case is unlawful . The lawful action of the manager in this situation will be the imposition of a disciplinary sanction on the late employee and. The decision on whether to take drastic measures against an employee for absenteeism or not also rests with the employer.

As long as the employment contract with the employee is not cancelled, the document is recognized as legally valid, and the employee officially on the staff of the entity is entitled to all relevant social benefits declared by regulatory legal acts.

Cancellation of an employment contract at the initiative of the employee

In practice, there are often situations when, after being hired, an employee refuses to work or cannot begin to perform it.

In such a contract, the contract is canceled at his own request. Cancellation can be processed in two ways:

1. Drawing up a petition by a subordinate to the manager to cancel the contract.
2. A special agreement between the employee and the employer is concluded to cancel the document. It states that the parties do not have any mutual claims.

The legislation of the Russian Federation does not unify the forms by which the application and agreement are drawn up.

After the employee has submitted an application or signed an agreement between him and the employer, the cancellation procedure described below is carried out.

Cancellation of an employment contract in accordance with the Labor Code of the Russian Federation

The procedure for canceling a document is regulated by Part 4 of Art. 61 Labor Code of the Russian Federation.

The new edition of this article is radically different from the previous interpretation.

Previously, the manager could cancel the contract a week after the subordinate ignored the work without good reason.

Now his failure to show up for work on the first working day is a reason for the lawful cancellation of the document. In addition, a canceled employment contract is considered a priori unconcluded, that is, it does not determine any legal obligations for both parties.

In addition, according to the previous edition, ignoring duties for good reasons (sharp deterioration in health, caring for a sick child) was considered a significant factor in order not to cancel a contract with a team member. Now the manager has the right to do this even if they are available.

Drawing up an order to cancel an employment contract

To legally formalize the manager’s decision to cancel an employment contract with a negligent employee, a corresponding order is issued.

The procedure for compiling it is as follows:

1. The manager of the department/sector/shop/office/department where the newly hired employee did not show up on time must send a memo to the manager stating this fact. Attached to it is a special act confirming the subordinate’s failure to appear.
2. The leading person of the organization familiarizes himself with the memorandum and the special act, and puts forward his resolution. GOST R 6.30-2003 USD states that the resolution of an authorized person consists of his full name, a statement of the accepted order, the date of its entry into force, the manager’s visa and the date of completion.

Writing a resolution is also allowed on a separate sheet.

1. The memorandum along with the resolution is submitted by the employer to the personnel department.
2. The final stage is the immediate issuance of an order to cancel the employment contract, indicating the specific reason for this.

After completing the procedure for canceling an employment contract, the personnel officer puts a note with the following content: “Employment contract No. ____ dated __________ was canceled by Order No. ____ dated __________.” Next, he signs under it and puts the seal of the business entity.

Russian legislation does not regulate the employer’s obligation to notify an employee of the cancellation of an employment contract.

However, if desired, the manager can:

1. Send the order to cancel the former staff unit by registered mail with a list of attachments and notification of its receipt. The letter also focuses on the need for the employee to pick up his work book.
2. Familiarize the subordinate who appears at the workplace with the order. If an employee refuses to familiarize himself with the provisions, the manager should record this in a special act.

In the event of cancellation of an employment contract, there is no need to issue an order to dismiss the employee.

An entry on the cancellation of an employment contract in the work book

In accordance with the provisions of the current legislation, an entry about the employment of an employee in his work record is made within five days after the corresponding order was issued. If it is made on the very first day, then after the cancellation of the contract, the HR department employee must indicate the following: “Record No. ___ is considered invalid on the basis of order No. ___ on the cancellation of the employment contract.”

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

In accordance with Art. 61 of the Labor Code of the Russian Federation, the employee is obliged to begin performing labor duties from the date specified in the employment contract. This could be either the day the employment contract is signed or a specific date in the future. If the employment contract does not specify the start date of work, the employee must begin work on the next working day after the contract enters into force. The day the employment contract comes into force is the day it is signed by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts of the Russian Federation or the employment contract.

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

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

Note! A canceled employment contract is considered not concluded (Part 4 of Article 61 of the Labor Code of the Russian Federation). This means that the agreement is deprived of legal force and binding force on the parties to the labor relationship with all the ensuing consequences.

If an employee gets sick

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

At the same time, in 2006, a new provision was introduced, according to which the cancellation of an employment contract does not deprive the employee of the right to receive compulsory social insurance benefits upon the occurrence of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation (Part 4 of Article 61 Labor Code of the Russian Federation). The Letter of the Federal Insurance Service of the Russian Federation dated August 15, 2007 N 02-13/07-7585 explained the procedure for applying this provision. In particular, it is stated that disability benefits are paid from the day on which the employee was supposed to start work. The procedure for paying this benefit is established by Federal Law No. 255-FZ of December 29, 2006 “On compulsory social insurance in case of temporary disability and in connection with maternity” (as amended on July 24, 2009) (hereinafter referred to as Law No. 255-FZ) and Government Resolution RF dated June 15, 2007 N 375 “On approval of the Regulations on the specifics of the procedure for calculating benefits for temporary disability, pregnancy and childbirth, monthly child care benefits for citizens subject to compulsory social insurance in case of temporary disability and in connection with maternity” (ed. dated 10/19/2009). It must be taken into account that if the employment contract is not canceled by the employer, then in accordance with paragraph 1 of Art. 6 of Law N 255-FZ, benefits for temporary disability due to illness or injury are paid for the entire period of temporary disability until the day of restoration of working capacity, determination of disability with limited ability to work.

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

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

If illness and injury occur during the period from the date of conclusion of the employment contract to the day of its cancellation, temporary disability benefits (except for tuberculosis) are paid for no more than 75 calendar days.

Example 2. Let's take the data from the first example. On the appointed day (06/14/2010), the employee did not go to work, having warned the employer that he had fallen ill on 06/07/2010. The employer, having learned that the treatment would be lengthy, decided to cancel the employment contract. For what period will temporary disability benefits be paid?

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

Documenting

After concluding an employment contract with an employee, the employer must issue the appropriate order (Article 68 of the Labor Code of the Russian Federation) in form N T-1, approved by Resolution of the State Statistics Committee of Russia N 1. Next, an entry is made in the work book. Let us remind you that according to Art. 66 of the Labor Code of the Russian Federation, the employer maintains work books for each employee who has worked for him for more than five days, in the case where the work for this employer is the main one for the employee. Therefore, we can recommend that employers 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 the employee is supposed to actually start work).

If the employee does not show up for work on the day it starts and the employer decides to cancel the employment contract, then the following documents are drawn up.

First, you need to record the fact that the employee was absent from the workplace on the day he started work. As evidence, a corresponding memo addressed to the head of the enterprise, registered in the manner established by the organization, as well as an act of the employee’s absence from work on the day the work starts can be used.

Purchase department

To the director

FSUE "Splav"

B.O. Shershnev

Memorandum

06/14/2010 N 15

About the employee's absence from work on the day he starts work

I, Andrey Gennadievich Savrasov, head of the supply department, on June 14, 2010, established the fact that Olga Ivanovna Iskrova, who had been hired as a manager, was absent from her workplace. With Iskrova O.I. On June 3, 2010, an employment contract was signed. 06/14/2010 is set as the start date. About the reasons for his absence Iskrova O.I. didn't report.

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

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

(FSUE "Splav")

Act No. 21

about the employee’s absence from work on the day he started work

Commission consisting of:

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

commission members:

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

- legal adviser Smirnova O.L.;

- Secretary Tropinina V.I.

has drawn up this Act on the following:

Iskrova Olga Ivanovna was hired as a manager in the supply department and, according to the employment contract dated 06/03/2010, was obliged to start work on June 14, 2010. However, on June 14, 2010, Iskrova O.I. did not show up for work and did not begin her official duties. Information about the reasons for the absence of Iskrova O.I. not available at work.

Signatures:

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

Then an order is issued to cancel the employment contract. In addition, if an order to hire the employee was issued, it is necessary to issue an order to cancel the order to hire the employee. These two orders can be issued in different documents, or they can be combined into one. Since the law does not provide for the form of such orders, we will provide an example of an order in the second case.

Federal State Unitary Enterprise "Splav"

(FSUE "Splav")

Order No. 18

On cancellation of an employment contract

and cancellation of the employment order

Due to the fact that Olga Ivanovna Iskrova, with whom an employment contract was concluded on June 3, 2010, did not start work on June 14, 2010 (the day established by the employment contract for the start of work),

I order:

1. Cancel the employment contract dated 06/03/2010 N 15/10.

2. Cancel the order dated 06/03/2010 N 15-k on hiring.

Reason: act dated June 14, 2010 N 21 stating that Iskrova O.I. didn't start work.

Director Shershnev / B.O. Shershnev/

If an entry about hiring was made in the work book, it is necessary to make an entry canceling the previous one. The procedure for making entries in the work book is regulated by Decree of the Government of the Russian Federation dated April 16, 2003 N 225 “On work books” (as amended on May 19, 2008) (hereinafter referred to as Resolution N 225) and Decree of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions on filling out work books" (hereinafter referred to as Resolution No. 69). None of these legal acts contain instructions on what entry is made in the work book when an employment contract is annulled. We consider the most appropriate of the available options to invalidate the entry. Paragraph 30 of Resolution No. 225 establishes that in sections of the work book containing information about work or information about awards, crossing out inaccurate or incorrect entries is not allowed. Changing entries is made by invalidating them and making correct entries.

The employment record is changed in the manner specified in clause 1.2 of Resolution No. 69. In particular, in relation to the situation under consideration, it is necessary in the “Work Information” section after the corresponding last entry in this section to indicate the subsequent serial number, the date the entry was made, in column 3, make an entry: “The entry for number such and such is invalid.” After this, make the correct entry, and in column 4 indicate the date and number of the order (instruction) or other decision of the employer, on the basis of which the correct entry was made. Let's give a sample.

Issues not regulated by law

In practice, HR employees may have some questions that are not resolved by law. In particular, the first of them is the question of what day it is necessary to dismiss an employee if he does not start work on the day specified in the employment contract as the day he starts work. To avoid controversial issues, we recommend that on the day you start work, you only draw up documents about the employee’s absence (memorandum, act), and the next day issue an order to cancel the employment contract.

Next, the question may arise: what to do if the employer does not want to cancel the employment contract? It seems that the answer is obvious: the employer must wait for the employee, recording a failure to appear due to unclear circumstances on the work time sheet. In this regard, another question may arise: within what time from the day indicated as the start day of work, the employer has the right to cancel the employment contract if the employee does not begin his duties on this day? Does the employer, after waiting for the employee for, for example, two weeks, still have the right to cancel the employment contract if the employee never comes to work? The Labor Code does not contain restrictions on the period of time during which a decision can be made to cancel an employment contract if the employee does not go to work not only on the day he starts work, but also on subsequent days. Therefore, it seems true that the employer has the right to exercise this right at any time before the employee goes to work.