What does it mean to cancel an employment contract?

Cancellation of an employment contractWhat should be understood by such a phrase? What consequences does it entail? Who is authorized to perform this action? We will try to answer these and other related questions in the article.

About cancellation of the employment contract

The term "cancellation of an employment contract" is found in Art. 61 of the Labor Code of the Russian Federation. This legal norm determines from what day the employment contract concluded with the employee is considered to have entered into force. It is also indicated that the contract can be canceled at the initiative of the employer if the person with whom it is concluded does not start his labor duties within the period specified in the document.

To determine the legality of the annulment of an employment contract, it is important to know from what date it is considered to have entered into force. Based on the general rules, this happens from the moment the document is signed by the employee and the employer. This condition may be changed if the employment contract provides for a different period for its entry into force. In particular, both a specific date can be defined in the document, or it can simply contain an indication that its entry into force is considered from the day the person is actually admitted to the performance of his official duties.

It should be noted here that one should not confuse the date the contract came into force and the date the person went to work - these are different concepts. In the latter case, this is the first working day of the employee, determined by the employment contract. If this is not indicated in the document, then the employee by default must begin his duties on the day following the date the contract enters into force.

Consequences of declaring a treaty null and void

There is no direct indication in the law of what constitutes an unconcluded employment contract. The term "unconcluded contract" is used in civil law and is not applicable to labor relations. This is logical, since civil and labor relations are significantly different, have a different legal nature. Within the meaning of Art. 57 of the Labor Code of the Russian Federation, an unconcluded employment contract is such an agreement, the provisions of which are not subject to execution by the parties.

By virtue of h. 3 Article. 57 of the Labor Code of the Russian Federation, the failure to include any important conditions in the text of an employment contract does not entail its recognition as not concluded. If any conditions are not included in the employment contract, even essential ones and stipulated in Part 1 of Art. 57 of the Labor Code of the Russian Federation, it must be supplemented. However, it does not lose its legal force.

Cancellation of the contract implies its non-conclusion, i.e. the absence of legal consequences for the employer and employee. The exception is that the employee has the right to receive compulsory social insurance in the event of an insured event in the period from the moment the contract is concluded until its cancellation.

The consequences of recognizing an employment contract as not concluded are as follows:

• the employer does not bear any obligations to the employee, including providing him with a workplace, tools, paying salaries, paying taxes and fees for him, etc.;
• the employee is not responsible for the performance of labor functions;
• the employer cannot require the employee to perform work duties;
• the employee is not entitled to demand from the employer the payment of taxes, fees, payment of wages and other payments, etc.

Cancellation procedure

As for any other personnel procedure, there is a certain procedural procedure for canceling an employment contract.

In most companies, to cancel an employment contract, you simply need to withdraw it and destroy it, although from a procedural point of view this is fundamentally wrong and even dangerous for the employer. The danger here may lie at least in the fact that the fact that the employer does not have an employment contract does not mean that the employee does not have one. And the employee (this is unlikely to happen, but still) can subsequently challenge the employer's actions to annul the employment contract on the basis that he nevertheless started work.

In order for everything to be correct from a legal point of view, the cancellation must be carried out by drawing up the relevant documents. The exact procedure at the legislative level is not regulated by anything today, but it seems that in order to maximize the rights and legitimate interests of the parties, it should look like this:

• issuance by the head of an order to annul the employment contract with the simultaneous cancellation of the order of the head to hire a person (maybe 1 or 2 orders);
• issuance of an order by the head of the organization on cancellation, followed by the entry by an employee of the personnel service (with his personal signature) of an entry on the cancellation of a previously issued order on hiring an employee.
  It seems that both options will be correct, since there is no special order for this procedure.

Some details of the cancellation process

As already mentioned, despite the right of the employer to cancel the employment contract, the employee retains the right to receive social insurance coverage if an insured event occurs during the period of such “employment”.

For example, if an employment contract was concluded with an employee, but on the day specified in it, the employee did not begin to perform his labor function and fell ill on the same day, opening a sick leave, the employer, despite the annulment of the contract, will have to ensure that he receives benefits in connection with the occurrence of an insured event.

You should pay attention to the following features of the cancellation of an employment contract:

1. Cancellation is the right of the employer, not his obligation. If the employer wants to give the employee another chance, he may not cancel the contract for a week or a month.
2. Cancellation in its pure form is possible only if the employee has not started his work at all during the entire working day. Thus, from a purely formal point of view, even if the employee started work half an hour before the end of the working day, cancellation is hardly possible. In this case, we can only talk about bringing the employee to disciplinary responsibility.
3. For the employer, it does not matter for what reason the employee did not start work - he has the right to cancel the previously concluded contract, regardless of it.

Thus, the annulment of the contract implies that it was not concluded, i.e., it leads to the fact that the legal consequences of the conclusion of the agreement do not occur. An exception is the insurance coverage of an employee in the event of an insured event.