home Converter An employment contract can be canceled within. What to do if an employee registered for work does not start work

An employment contract can be canceled within. What to do if an employee registered for work does not start work

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

Let’s analyze how this can manifest itself in practice, what the consequences are for the employee and employers, and what the consequences may be in the event of dishonest fulfillment of one’s legal duties.

What does “approved to work in fact” mean?

The law requires the employer to properly formalize the relationship with the employee, that is, sign employment contract. Not all employers are scrupulous about legal requirements: many people prefer to use the labor of employees without burdening themselves with written responsibilities. In such cases, the work agreement is concluded verbally and the employee, on behalf of the manager 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 design labor relations– improper.

When starting work without drawing up a document on mutual obligations, the employee does not familiarize himself with 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 control over his working hours, wages and working conditions. The Labor Code of the Russian Federation protects more than weak side labor relations and legally equates actual admission to work to the full-fledged conclusion of an employment contract, even if not properly formalized.

Lines from the Labor Code of the Russian Federation

Equalization of the rights of actual admission to work and the 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 states that the proper and timely execution of an employment contract does not matter: if an employee has started work, it means that 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 specifies the moment the employment relationship comes into force - this is the day of signing the employment contract or the actual admission to work, which was authorized by the employer’s representative or simply knew about it;
Art. 67 requires the employer to properly draw up 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 terms of remuneration, in particular, that labor remuneration is accrued from the first day of work, that is, actual admission to it.

Employment contract = actual admission

The legal equality of these two methods of starting an employment relationship lies in their legal consequences. It is considered that an 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 be somehow different from a standard one? Differences:

Difference in dates. The contract is not signed “retroactively”, therefore, it will have a date later than the one when the employee actually started work (the start date of work is indicated separately in the text of the contract).
The nuance of entry into force. This agreement will come into force from the day of admission to work, and not from the moment of conclusion, as is usually the case.

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

How is actual permission to work obtained?

The law does not provide regulations according to which the employer secures the employee’s right to begin work on his instructions and with his knowledge. This procedure can be prescribed in the internal regulations of the organization. It could be:

oral agreement;
the employee writing an application for permission to work;
order or order for admission;
an official (report) note recording the fact of starting work at a new workplace.

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

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

Evidence of actual permission to work

If the employer has not recorded in any way the moment of admission of the new employee, how can this be proven if it is necessary to protect their rights?

First, after three days, you should request a written document on the employment relationship. If the employer does not do this, he falls under administrative liability.

Evidence of employment relationship may serve in court:

pass to the territory of the organization;
providing the employee with a workplace;
acts on receipt of stationery, materials, workwear, etc.;
document confirming a medical examination;
employee's name in plans, programs, lists, etc.;
audio or video recordings where the employer’s representative gives instructions to the employee, and the employee performs the work;
witness statements;
an agreement on material liability (sometimes concluded “bypassing” the labor agreement, where there is interaction with certain values);
other evidence.

Actual admission and probationary period

Can we talk about entrance examinations if it is required to start work so urgently that it is not possible to first draw up an employment contract, where all the conditions of the probationary period are usually prescribed? Usually not. Actual admission to work, as if by default, fixes the suitability of the employee accepted in this way.

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

If such an agreement has not been drawn up, the employer does not have the right to establish probation upon subsequent registration of an employment contract.

Consequences of admission to work after the fact

If, within the three-day period provided by law, the employer has properly formalized the resulting employment relationship, no additional legal consequences arise. Just appeared in his state new employee, another staff representative. Consequences occur if the employee’s rights are violated by improper performance of the employer’s duties:

If permission to work was obtained from a person who did not have such authority, and the employer refuses to hire him in the proper manner, he is obliged to pay the failed employee remuneration for the work performed in proportion to the time actually worked. The guilty employee who has exceeded his authority is subject to disciplinary action. If, as a result of this admission, real damage occurred, it will be recovered from the employee, but financial liability 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 court or the labor inspectorate. For violating 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 registration;
- replacement of an employment contract with a civil law one.
There is no employee signature on the employment contract. Such an agreement is considered to be executed improperly, for which the employer is responsible. This does not exempt him from labor relations, which are still considered concluded upon admission to work.

New edition of Art. 61 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 this Code, other federal laws, and other regulatory legal acts. Russian Federation or an employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his authorized representative.

The employee is obliged to begin performing his job duties on the date specified in the employment contract.

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.

If the employee does not start work on the start day of work established in accordance with part two or three of this article, then the employer has the right to cancel the employment contract. A canceled employment contract is considered unconcluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory security social insurance upon the occurrence of an insured event during the period from the date of conclusion of the employment contract until the day of its cancellation.

Commentary on Article 61 of the Labor Code of the Russian Federation

As the practice of concluding employment contracts shows, the following two situations most often occur.

According to the first of them, an employment contract comes into force from the day the document is signed by both the employee and the employer, unless, as stated in Article 61 of the Labor Code of the Russian Federation, otherwise is not established by federal laws, other regulatory legal acts or the same employment contract. It is necessary to clarify that the duration of the time interval separating the date of signing of the employment contract by the employee from the date of signing by the employer is not specifically defined, but this does not mean that the employer can, at his discretion, postpone for as long as he wishes the moment of certifying the document with his signature.

In general, the employer has at its disposal no more than 30 days, calculated from the date the employee signs the employment contract. The employer has the right to show such “leisureliness” if the employment contract does not indicate the start date for the employee to perform the work assigned to him ( labor function).

The fact is that the mentioned article of the Labor Code of the Russian Federation instructs the employee to begin performing his work duties the next day after the employment contract comes into force. At the same time, as we remember, the start date of this document is determined by the date it is signed by both parties to the labor relationship.

Citizen Petrov P.P. applied for a job to the head of Globus LLC. Having received the consent of the latter, Petrov P.P. signed an employment contract on June 20, 2007, in which - by agreement of the parties - the start date of work was not indicated, which was due to the personal circumstances of the employee.

Guided by the powers granted to him and taking into account the interests of the employee, the head of Globus LLC, for his part, signed an employment contract with P.P. Petrov. July 19, 2007, after which a corresponding hiring order was issued. The next day, this order was announced to P.P. Petrov. signature, after which he began to perform the work assigned to him in accordance with the employment contract. At the same time, as the start date of Petrova P.P. at Globus LLC in his work book and other labor records it was indicated on July 20, 2007.

The situation described in the example could have developed slightly differently if the employment contract had specified a start date for work. In this case, the employee, as follows from Article 61 of the Labor Code of the Russian Federation, is obliged to begin performing his job duties, as they say, “day to day.”

Of course, the inclusion of a condition on the start date of work in the employment contract makes adjustments to the timing of the signing of the employment contract by the employee and the employer. Ideally (for the situation under consideration), the employment contract should be signed by the employee and the employer on the eve of the start date of work recorded in the document.

Guided by the powers granted to him and taking into account the interests of his enterprise, the head of Globus LLC, for his part, also signed an employment contract with P.P. Petrov. June 20, 2007, after which a corresponding hiring order was issued. The next day, this order was announced to P.P. Petrov. signature, after which he began to perform the work assigned to him in accordance with the employment contract. At the same time, as the start date of Petrova P.P. at Globus LLC in his work book and other labor records it was indicated June 21, 2007.

Let us assume, however, that for one reason or another, the employment contract with a fixed start date was not signed in a timely manner (i.e. the day before) by its parties (one of the parties). In this situation, the employee and employer can act in accordance with one of two possible (corresponding to the Labor Code) scenarios:

1. An employee with the knowledge or on behalf of the employer (his authorized representative, for example, a manager structural unit, to which the employee is assigned) begins to perform the work (labor function) entrusted to him in accordance with the employment contract that has not yet entered into legal force. Within the next three days (see earlier), the employee and employer must sign the employment contract in order to ensure its entry into legal force.

2. The employee and the employer, by agreement between themselves, make changes to the employment contract in order to delay the start date of work. For this purpose, the start date of work initially fixed in the employment contract can, firstly, be changed to the desired one (more suitable for both parties to the employment relationship).

Secondly, information about a specific start date may be excluded from the employment contract. In this case, the employee and employer have the right to act as described in the first example.

Finally, thirdly, the employment contract may additionally stipulate a specific date for its entry into force, including one that is a month or even more distant from the date of signing the document (if there is consent of the parties to the employment relationship). In this case, the employee must begin work the next day after the employment contract comes into force.

Citizen Petrov P.P. applied for a job to the head of Globus LLC. Having received the consent of the latter, Petrov P.P. signed an employment contract.

June 20, 2007, in which - by agreement of the parties - June 21, 2007 was determined as the start date of work, which was due to the characteristics of the organization production process on this enterprise and an acute shortage of appropriately qualified personnel.

The next day, June 21, 2007, Petrov P.P. went to work and was allowed to perform it by the head of the structural unit to which he was assigned. The latter informed the employee that the employment contract with him had not yet been signed by the head of the enterprise due to his sudden departure on a business trip on June 22, 2007 (In case of a longer business trip, the head of Globus LLC would have to temporarily transfer the authority to conclude labor contracts contracts to one of his subordinates).

Having returned from a business trip, the head of Globus LLC signed an employment contract with P.P. Petrov. June 23, 2007 and issued the corresponding order for employment, which was announced to P.P. Petrov on June 24, 2007. for painting. At the same time, as the start date of Petrova P.P. at Globus LLC in his work book and other labor records it was indicated June 21, 2005.

Let us supplement the listed situations by considering another one, according to which the employee, despite the entry into force of the employment contract, on his own initiative “postponed” the start of work. In order to give an adequate legal assessment of such employee actions, we again turn to the relevant provisions of the Labor Code of the Russian Federation.

We especially emphasize that in accordance with the current version of Article 61 of the Labor Code of the Russian Federation, an employee no longer has the right to “postpone” the beginning of the work assigned to him in accordance with the employment contract (labor function) without documented valid reasons, since otherwise the employment contract is canceled, i.e. .e. is declared invalid the very next day after the employee’s absence. Starting from the date of cancellation of the employment contract, the parties have the right to consider themselves free from the obligations assumed in accordance with this document.

Based on the results of the consideration of the relevant documents - if they are submitted in a timely manner and in proper form by the employee - the employer has the right to either allow the employee to perform the work assigned to him (labor function) (possibly subjecting the latter to disciplinary punishment), or to terminate the employment contract with the employee early in the manner and according to on the grounds provided for by the Labor Code of the Russian Federation. For his part, an employee who has been given the opportunity to continue working by his employer must exercise prudence and not allow similar situations to arise in the future, even if there are good reasons for this.

In the event that an employee, despite the submitted documents indicating the valid nature of his absence from work, is still refused to maintain an employment relationship, he has the right to appeal the employer’s decision to early terminate the employment contract in court as unmotivated (insufficiently motivated). Let us note in conclusion that the Labor Code of the Russian Federation does not contain any interpretation of the concept of “good reason”. The right to determine this (in relation to the situation described) is given to the employer. However, in this case, the employer should exercise objectivity and common sense.

If both are, for one reason or another, called into question by an employee with whom the employer decides to terminate the employment contract early, then the dismissed person will have no choice but to go to court.

It is necessary to once again draw the attention of dear readers to the fact that in accordance with the current version of Article 68 of the Labor Code of the Russian Federation, the signing of an employment contract must now be preceded by familiarization of the employee with signature with the rules of internal labor regulations employer, other local regulations directly related to the employee’s future work, as well as the collective agreement.

Performing these actions is the responsibility of the employer (failure to fulfill (improper fulfillment) of this obligation calls into question the legitimacy of the employment contract concluded with an employee who was not familiar with the above documents before signing the employment contract).

Citizen Petrov P.P. applied for a job to the head of Globus LLC. Having received the consent of the latter, Petrov P.P. signed an employment contract on June 20, 2007, in which - by agreement of the parties - June 21, 2007 was determined as the start date of work, which was due to the peculiarities of the organization of the production process at this enterprise and the acute shortage of personnel with appropriate qualifications.

Guided by the powers granted to him and taking into account the interests of his enterprise, the head of Globus LLC, for his part, also signed an employment contract with P.P. Petrov. June 20, 2007, after which a corresponding hiring order was issued. However, Petrov P.P. did not return to work within the period established by the employment contract, which gave the head of Globus LLC the right to consider, starting from June 22, 2007, the employment contract as invalid. In connection with the above, the order to admit Petrov P.P. the job was canceled on June 22, 2007, and the work book was returned to the employee without making any entries in it.

Citizen Petrov P.P. applied for a job to the head of Globus LLC. Having received the consent of the latter, Petrov P.P. signed an employment contract on June 20, 2007, in which - by agreement of the parties - June 21, 2007 was determined as the start date of work, which was due to the peculiarities of the organization of the production process at this enterprise and the acute shortage of personnel with appropriate qualifications.

Guided by the powers granted to him and taking into account the interests of his enterprise, the head of Globus LLC, for his part, also signed an employment contract with P.P. Petrov. June 20, 2007, after which a corresponding hiring order was issued. The next day Petrov P.P. did not go to work, but on June 22, 2007, he presented to the head of Globus LLC a notarized copy of his father’s death certificate, as well as documents confirming the close relationship of P.P. Petrov. with the deceased.

Taking into account the documents presented by the employee, the head of Globus LLC, guided by the powers granted, allowed P.P. Petrov to be admitted. to perform the work assigned to him in accordance with the employment contract starting from June 24, 2007, having previously obtained the consent of the head of the structural unit to which the employee was assigned. The hiring order was announced to P.P. Petrov. against signature on June 26, 2007 with a note indicating the circumstances of the case.

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

1. Article 61, which interprets the moment of entry into force of an employment contract, is new in labor legislation. Questions arise: what constitutes the fact that an employment contract comes into force, what is the relationship between the moment the employment contract comes into force and the occurrence of other circumstances that also have legal meaning. Among such circumstances, the following should be mentioned: a) the day of signing the contract; b) day of commencement of work (Article 57 of the Labor Code of the Russian Federation); c) the day the employee is actually admitted to work (Article 67 of the Labor Code of the Russian Federation).

from the moment the contract comes into force, the labor legal relationship that has arisen between the employee and the employer can be interrupted only on the grounds and in the manner established by labor legislation (see articles and commentary thereto);

the position for the performance of duties for which the contract was concluded can no longer be considered vacant - with all the organizational and legal consequences arising from this fact;

an employee as a party to an employment relationship can be sent for training, retraining, etc.;

the time from the date of entry into force of the contract must be counted towards the length of service required to take annual leave (see Article 114 of the Labor Code of the Russian Federation and the commentary thereto); etc.

However, the entry into force of the contract may be delayed in time from the moment the work begins. In this case, a number of rights and obligations of the parties, the emergence of which is associated with the fact of the beginning of real labor activity employee, remains invalid at the time the employment contract comes into force (see paragraph 7 of the commentary to this article).

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

3. The employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts or the employment contract (Part 1 of Article 61 of the Labor Code of the Russian Federation). Thus, if according to general rule the day the agreement is signed is also the day it enters into force, then two exceptions are established from this rule: the date of signing and the moment the agreement enters into force may not coincide due, firstly, to a direct prescription of a federal law or other regulatory legal act, and secondly , concluded employment contract.

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

As follows from Part 1 of Art. 61 of the Labor Code of the Russian Federation in the current version, rules of this kind can be established exclusively by federal laws or other regulatory legal acts of the Russian Federation.

5. The condition for the entry into force of an employment contract not from the date of its signing, but later may be established in the contract itself. This innovation of the Labor Code of the Russian Federation provides the parties with new opportunities in legal regulation their relationships.

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

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

6. By establishing the possibility of defining in an employment contract the conditions for its entry into force within a certain period after signing the contract, the legislator, unfortunately, did not in any way regulate the issue of the nature of the legal relationship between the employer and the employee who entered into an employment contract during the period of time when he has not entered into force.

The answer to this question may be as follows.

First of all, from the moment of signing the contract, the employee has the right to receive security for compulsory social insurance in the event of an insured event (part 4 of article 61; see also paragraph 8 of the commentary to this article).

Regarding the unilateral refusal of the contract, three questions arise: a) is such a unilateral refusal possible in principle; b) if possible, what should be its procedure; c) what are the legal consequences of unilateral withdrawal from the contract. Unilateral refusal of a contract, even if it has not entered into force, contradicts the basic principle of contract law “contracts must be fulfilled” and violates the interests of the opposing party.

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

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

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

7. As already noted, the entry into force of an employment contract means that its parties have rights and obligations stipulated by the contract, i.e. the emergence of an employment relationship. At the same time, it is necessary to distinguish the moment when the obligations (and rights) of the parties to the employment contract arise, i.e. the entry into force of the employment contract and the moment when the employee begins to actually perform these duties. For example, the parties may additionally stipulate when concluding a contract the day the work begins, and the employee is obligated to begin performing work duties from that day (Part 3 of Article 61 of the Labor Code of the Russian Federation). Despite the fact that in accordance with Art. 57 of the Labor Code of the Russian Federation, the start date of work is a condition “mandatory for inclusion” in the employment contract, by virtue of Part 3 of Art. 61 this condition may not be determined by the parties. In this case, the employee’s obligation to start work arises on the next working day after the contract comes into force. Therefore, along with the fact that the employment contract comes into force, the fact that work has begun has legal significance.

Just as when an employment contract comes into force (see paragraph 2 of the commentary to this article), the fact of the beginning of the work stipulated by the contract gives rise to a number of rights and obligations both for the parties to the employment relationship and for third parties. For example, from this moment the employee is paid a salary, the employer is obliged to provide the employee with proper working conditions, in turn, the employee actually falls under the owner’s (regulatory, directive and disciplinary) power of the employer, etc.

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

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

If an employee has not started work due to temporary disability, he, by virtue of Part 3 of the commented article, has the right to receive security for compulsory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until its cancellation.

9. According to the rules established by Art. 61 in the current version, cancellation of the contract is a right, but not an obligation of the employer. If, for example, an employee does not start work on time without good reason, the employer has the right either to cancel the employment contract (without ascertaining the existence and content of these reasons), or, considering the employment contract to have entered into force, to bring the guilty employee to disciplinary liability, in including dismissing him for absenteeism according to the rules established by this Code (see Articles 81, 193 of the Labor Code of the Russian Federation and commentary thereto). In this latter case, dismissal is carried out either from the day on which the employee was obliged to start work, or, if the employee showed up for work and was admitted to it, from last day work.

10. Cancellation of an employment contract is carried out by order of the employer. A corresponding entry is made in the work book with reference to Part 4 of Art. 61 and the corresponding order. It should be noted that this kind of recording makes sense if work book the employee has already made a record of the conclusion of the employment contract: otherwise, no record is required, because the cancellation of the employment contract means its absence at any time.

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

11. The legislator provides for a situation in which the moment of entry into force of the contract and the beginning of the employee’s performance of labor duties may coincide. In accordance with Part 1 of Art. 61 of the Labor Code of the Russian Federation, an employment contract comes into force from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative (for actual admission to work, see Article 67 of the Labor Code of the Russian Federation and the commentary thereto). Thus, in this case, the fact of the entry into force of the employment contract and the emergence of an employment legal relationship is determined not by the date formulated in the contract, but by the conclusive nature of the actions of its parties.

ST 61 Labor Code of the Russian Federation.

An employment contract comes into force on the day it is signed by the employee and the employer, unless otherwise established by this Code, other federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his authorized representative.

The employee is obliged to begin performing his job duties on the date specified in the employment contract.

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.

If the employee does not start work on the start day of work established in accordance with part two or three of this article, then the employer has the right to cancel the employment contract. A canceled employment contract is considered unconcluded. Cancellation of an employment contract does not deprive the employee of the right to receive benefits for compulsory social insurance in the event of an insured event during the period from the date of conclusion of the employment contract until the day of its cancellation.

Commentary to Art. 61 Labor Code of the Russian Federation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Question: The employment contract provides that the employee is obliged to begin work after two weeks from the date the contract is signed by the parties. However, after signing the employment contract, but even before the start of work, the employee fell ill, but recovered within the prescribed period and returned to work. Until this moment, the employee had not worked anywhere for 3 months. Is temporary disability benefits payable in this case if the employee has a certificate of incapacity for work issued in in the prescribed manner(this employer is indicated in it)?

Answer: Temporary disability benefits are not payable.

Rationale: According to Article 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 of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

The employee is obliged to begin performing his job duties on the date specified in the employment contract.

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.

Consequently, the parties can enter into an employment contract and stipulate in it that the employee must begin work, say, in two weeks.

According to Part 1 of Article 2 Federal Law dated December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” (hereinafter referred to as Law No. 255-FZ), citizens of the Russian Federation are subject to compulsory social insurance in case of temporary disability and in connection with maternity, as well as foreign citizens and stateless persons permanently or temporarily residing on the territory of the Russian Federation and working under employment contracts.

At the same time, by virtue of Part 5 of this article, persons working under employment contracts, for the purposes of Law No. 255-FZ, are recognized as persons who have concluded an employment contract in the prescribed manner from the day on which they were supposed to start work, as well as persons actually admitted to work in accordance with labor legislation.

Based on this norm, in the case under consideration, temporary disability benefits are not payable, the employee has not begun to directly perform his labor function, and is not actually a person allowed to work.

At the same time, it is necessary to take into account that, in accordance with Part 1 of Article 5 of Law No. 255-FZ, the provision of temporary disability benefits to insured persons is carried out in the event, in particular, of loss of ability to work due to illness or injury.

At the same time, part 5 of this article provides that temporary disability benefits are paid to insured persons upon the occurrence of the cases specified in part 1 of this article:

1) during the period of work under an employment contract, performance of official or other activities, during which they are subject to compulsory social insurance in case of temporary disability and in connection with maternity,

2) when the illness or injury occurred within 30 calendar days from the date of termination said work or activity or during the period from the date of conclusion of the employment contract until the day of its cancellation.

In the first case, the term “work under an employment contract” is also provided.

The second case excludes the payment of benefits in the situation under consideration, taking into account, firstly, that the employee at that moment did not work anywhere for 3 months, and secondly, that the employment contract was not cancelled.

If the employee does not start work on the start day of work established in accordance with part two or three of this article, then the employer has the right to cancel the employment contract. A canceled employment contract is considered unconcluded. Cancellation of an employment contract does not deprive the employee of the right to receive benefits for compulsory social insurance in the event of an insured event during the period from the date of conclusion of the employment contract until the day of its cancellation (Part 4 of Article 61 of the Labor Code of the Russian Federation).

In the case under consideration, the employee recovered within the prescribed period and returned to work.

There were a significant number of people attending job interviews who were “applying” for job positions. After talking with the deputy director of personnel and the shop manager, many of the applicants, psychologically exhausted by searching 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 foreman’s explanations about what he, a former salesman, manager, etc., should do, a person is absolutely unfamiliar with work in production and, in general, is not morally prepared for it, and even for a meager salary, in horror he rushed away from the workshop to the personnel department, begging to return his work book, to confiscate (and sometimes even tear up the employment order right in front of him (!) and never again remember his, the employee’s, existence.

Sometimes the situation was slightly modified. After the interview with the future employee, an employment contract was signed, but on the appointed day he simply did not show up for work. Attempts to find out what happened to him by calling the contact phone number specified in the contract led to only one 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 lawful instruction to the personnel department to seize, tear up 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 his thoughts on whether what could be used to fill them.

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 of amendments to the Labor Code in October last year, 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 convenience comparative analysis Let's present the old and new editions of this article in tabular form. At the same time, words that disappeared in the old edition of the article have been crossed out, those that appeared in new edition- are in italics.

Table 1

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 the employee does not start work on time without good reason within a week, the employment contract is canceled.

If the employee does not start work within the start date of work established in accordance with part two or three of this article, then the employer has the right to cancel the employment contract. A canceled employment contract is considered unconcluded. Cancellation of an employment contract does not deprive the employee of the right to receive benefits for compulsory social insurance in the event of an insured event during the period from the date of conclusion of the employment contract until the day of its cancellation.

So what has changed? One amendment is, so to speak, “cosmetic” in nature. If, according to the old version, the employee had 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 one - on the day the work starts, established in accordance with Parts 2, 3 of Art. 61 Labor Code of the Russian Federation.

Part 2, 3 art. 61 of the Labor Code of the Russian Federation “Entry into force of the employment contract”

The employee is obliged to begin performing his job duties on the date specified in the employment contract.

If the employment contract does not specify the start date of work, the employee must begin work on the next day after the contract enters into force.

The rest of the changes are drastic.

Consider it unconcluded!

Firstly, the legislator clarified that a canceled employment contract is considered unconcluded. In practice, this means that a canceled employment contract, as a general rule, does not give rise to any legal consequences, with the exception of the employee’s right to social security benefits (for more details, see the text under the subtitle “Right to receive benefits”). Accordingly, the employment order (if it was issued) is canceled. An “order” to dismiss an employee should not be issued. An entry in the work book is also subject to cancellation if the personnel officer managed to make it.

A day, not a week

Secondly, previously, in order to cancel an employment contract, the new employee had to be absent for a whole week. Now the employer can “get rid of” an “extra” employee on the staff 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 there, the employer can wait for him as long as he likes. And cancel the employment contract after, for example, a month, making sure that there is no longer any hope of a new employee.

Reasons for absence? Any!

Thirdly, the previous edition assumed the presence of unjustifiable reasons for canceling an employment contract. If, for example, an employee fell ill or had to care for a sick child, then we had no right to part with him. Now we don’t need to find out whether an employee is absent from the workplace with or without a good reason. The employer's right to cancel the employment contract does not depend on this.

You have the right, but not the obligation!

Fourthly, before we obliged were to cancel the employment contract with such an employee. Now the employer has the right do it. But he may not take advantage of this right.

Example 1

Suppose an employer calls an employee who did not show up on his first day of work and finds out that he is on sick leave. In this case, the head of the company can use his right granted to him by the Labor Code of the Russian Federation and instruct the HR department to cancel the employment contract, or maybe wait for the “newcomer” to return to work.

Example 2

The reason for a new employee’s absence from work from a legal point of view is not valid - he learned that his girlfriend from another city could come to him for just one day. In this regard, the young man called his employer and asked for leave for that day at his own expense. Of course, the head of the company has the right to refuse the employee such an impudent request and cancel the employment contract with him, or perhaps, remembering his youth and understanding the romantic feelings of the employee, and not take advantage of this right.

Should this amendment by the legislator be understood in such a way that the management of an organization can fire an employee for absenteeism (if the reason for absence from work is unjustified)? This issue is quite controversial. Indeed, before the norm of Part 4 of Art. 61 of the Labor Code of the Russian Federation gave an unequivocal negative answer to this question. If the employee does not start work within a week without good reason, the employer had to He did not have the right to automatically cancel the employment contract and, therefore, fire a new employee for absenteeism. Now the employer has the right not to cancel the employment contract, which means (we mentally complete the phrase) he can keep the employee at work... or fire him. Unfortunately, neither judicial practice, there has been no clarification on this matter yet. And if you decide to impose on an employee disciplinary action, and he will sue you for this, regardless of the latter’s decision (in your favor or not), you can be proud that you have created a legal precedent.

Eligibility for benefits

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

Example 3

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

This rule of the Labor Code of the Russian Federation is consistent with the norms of the Federal Law of December 29, 2006 No. 255-FZ, which entered into force on January 1, 2007, “On the provision of benefits for temporary disability, pregnancy and childbirth of citizens subject to compulsory social insurance.” Whereas previously, according to the Regulations on the procedure for providing benefits for state social insurance, approved by a resolution of the Presidium of the All-Russian Central Council of Trade Unions on November 12, 1984 with subsequent amendments and additions, as a general rule, in case of illness before the actual start of work (even if there is a concluded employment contract), a benefit was not issued. There were only a few exceptions. Thus, persons who have graduated from higher or secondary specialized educational institution, postgraduate study, clinical residency or vocational educational institution, directed to work in the prescribed manner, benefits were also issued in cases where temporary disability occurred before they began work. Such benefits were paid from the day appointed for their reporting to work.

Procedure for canceling an employment contract

As mentioned above, in practice, as a rule, instead of carrying out the cancellation procedure, a copy of the contract stored by the employer is confiscated and destroyed. The fact that another copy of the contract was safely left with the employee who had not started work and at the same time no document recorded that it would be possible to reach the place production activities he didn’t want to, everyone happily forgets.

Of course, there is no judicial practice yet illustrating the harmful consequences of such short-sighted behavior by the employer. As far as we know, not a single employee who has 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 there is no documentary evidence of his absence in the form of the same act. It is clear that in such an extraordinary case, they will try to issue “documentary evidence of the employee’s absence from work” retroactively. Nevertheless, it is better to competently carry out the procedure for canceling the contract from the very beginning.

So, if the employee does not start work on the start date, the employment contract may be canceled by the employer.

The question arises: when, then, should the HR department cancel the employment contract? It is not always advisable to do this on the day a new employee starts work. This is due to the following. In order for the procedure for annulling an employment contract to be absolutely flawless from a legal point of view, the employee should not start work during the entire first day. And you and the head of the organization must make sure of this. Suppose that in the morning your employee did not show up for work at all. If your new employee's working day lasts from 9:00 to 18:00, it is not a fact that at 17:30 he will not burst into your office, declare that he is ready to start work right now, and even that his absence will be so for a long time due to valid 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 so 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. It’s another matter if you finish work, for example, at 19:00, however, like the head of the organization who gave the corresponding order, and the employee - at 17:00 or 18:00. Then, having formally verified that the employee has not started work for the whole day, you can cancel the employment contract.

It may also occur next situation. The employee went to work, but after hearing from the foreman 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 a corresponding report.

Please note the fundamental difference between this act and the act required to fire an employee for absenteeism. In case of absenteeism, we confirm that the employee was absent at work for more than four hours or the entire day (shift), and in case of cancellation of the contract, we indicate that it is back to work didn't 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 work. But he can, as we said above, be present at work and, nevertheless, not start it. Those. employee after registration of all personnel documents he could walk into the workshop, see how other workers were working, and, deciding that such hard work was not for him, turn around and go home. In this case, the employee seemed to be present at work, but never started work.

In the latter case, when drawing up an act, you must record that the employee is to work exactly didn't start(Annex 1) .

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

Annex 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 employment contract No. 77 dated 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.

Attendees: Bochkin A.S. Bochkin

Korovin A.F. Korovin

The act was drawn up: Kuznetsov I.I. Kuznetsov

If your employee came to work, but, looking into the workshop, was horrified, imagining his further “ 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 this, you can cancel the employment contract.

Appendix 2

General Director of LLC "ABV"

N.N. Slyusarev

from I.I. Gusev

Statement

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

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

It should be borne in mind that an order to cancel an employment contract can be given orally to a specialist in the organization’s human resources department. However, in large organizations, where the procedure for processing documents is clearly formalized, they often do the following. The employee’s immediate supervisor writes a memo 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 he started work. 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 transfers it to the personnel department.

Appendix 3

Society with limited liability"A B C"

ORDER

About cancellation

employment contract

Due to the fact that Ivan Ivanovich Gusev did not start work on the start day of work established in accordance with Part 2 of Art. 61 Labor Code of the Russian Federation, employment 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. It is not said anywhere about 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 hiring order, the second is to make an inscription on the hiring order itself stating that it has been canceled signed by an employee of the HR department.

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