Dismissal for showing up to work while intoxicated. Dismissing an employee for showing up at work while intoxicated: algorithm and documents

You can only be fired for appearing drunk at work: an employee being in such a state outside of work, even during working hours, does not provide reasons for dismissal on the grounds in question. The “work” referred to in sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation recognizes:

• directly the employee’s workplace;
• employer's territory outside the workplace;
• the territory of the facility where the employee works on behalf of the employer.

Sometimes the question arises about the possibility of dismissing an employee who is caught drunk at the entrance of an enterprise. The courts, as a rule, recognize such dismissal as legal with the following motivation: the territory of the checkpoint refers to the general territory of the employer (for example, the appeal ruling (JSC) of the Vologda Regional Court dated 02/08/2013 No. 33-507/2013). The dismissal of a drunken employee caught in such a state at the entrance of the customer organization, on the territory of which the person works on behalf of management, is also lawful on similar grounds (decision of the Moscow Regional Court dated December 14, 2010 in case No. 33-24139).

Circumstances of time: was it working time?

In order to dismiss an employee under sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, he must be drunk during his working hours, which is determined in the labor regulations, labor contracts, and shift schedules. Circumstances of the time directly affect the possibility of dismissal for drunkenness at work. So, for example, if a drunk arrest at a checkpoint took place before the start of the working day, then the dismissal will be considered illegal (for example, JSC Yaroslavl Regional Court dated October 18, 2012 in case No. 33-5617).

Taking into account this requirement of the law, it is impossible to dismiss an employee who:

• during his lunch break he drank alcohol at work, after which (before the end of the break) he left work;
• drank alcohol at work after the end of the working day;
• came to work drunk on my day off, on a vacation (any kind) or sick leave.

It is worth noting that the courts have a common position regarding the situation when an employee was drunk while en route to a business trip. The interior of a train, plane or other vehicle cannot be classified as a workplace, and the travel time cannot be classified as working time. Therefore, it is impossible to dismiss such an employee for drunkenness at work (cassation ruling of the Novosibirsk Regional Court dated February 24, 2011 in case No. 33-1212/2011).

Recording the fact of intoxication for the purpose of dismissal for drunkenness

If you suspect that an employee is drunk, it is recommended, first of all, to record the fact of intoxication. The presence of evidence of such an employee’s condition is the third necessary condition for his legal dismissal.

The state of intoxication can be confirmed not only by a medical report, but also by other evidence. This was also indicated by the Plenum of the Supreme Court of the Russian Federation in paragraph. 3 clause 42 of resolution No. 2 of March 17, 2004 (hereinafter referred to as resolution No. 2).

Sometimes it is not possible to carry out an examination for objective reasons. For example, there is no medical facility of the appropriate profile nearby, or the employee is against the examination, and it is possible only if voluntary consent is given (like any medical procedure performed without vital indications).

IMPORTANT! It is recommended to start by drawing up a report on appearing at work while intoxicated, even if the employee agreed to undergo an examination. It must be borne in mind that a person has the right to refuse this procedure at any time (both before and during its implementation).

There are many court decisions indicating that it is possible to prove intoxication without a doctor’s opinion. The employer’s chances of winning a dispute about the legality of dismissal increase if there is a body of evidence - an act, a report, testimony of witnesses, a report/memorandum (see, for example, JSC Arkhangelsk Regional Court dated 02/06/2013 in case No. 33-539/2013).

Creation of a commission to draw up an act

In some organizations, there is a permanent commission to record the drunken state of employees. If one does not exist, then it is better to create it.

To do this, it is necessary to issue an order in free form. It is advisable to display in it:

• the basis for the order (usually a report on the discovery of a drunk employee);
• the purpose of creating the commission;
• composition of the commission indicating full names and positions;
• validity period of the commission (it is possible to create a commission without limiting the validity period, that is, on an ongoing basis).

How to draw up a report against an employee who is drunk?

The commission report must be drawn up on the day the employee was caught drunk at work. Moreover, it is recommended to do this as quickly as possible for obvious reasons: after just a few hours it will be difficult to prove the fact of intoxication.

The form of the act has not been approved, but it is advisable to include in it:

• place, date and time of compilation;
• information about the employees who drew up the act;
• information about an employee found to be intoxicated;
• signs indicating intoxication.

Regarding the last point: in 2016, a new procedure for medical examination to determine the fact of intoxication came into force (approved by order of the Ministry of Health of the Russian Federation dated December 18, 2015 No. 9 33n, hereinafter referred to as the procedure). Clause 6 of this document defines signs of intoxication, each of which is sufficient to warrant referral for examination, including if the employer suspects that the employee is drunk:

• unsteady posture and gait;
• alcoholic smell;
• speech disorders;
• sudden change in facial skin color.

These signs may be characteristic of some diseases, so the employee’s condition should be described in detail. Based on all the circumstances, the act makes an appropriate conclusion.

The act is signed by all members of the commission, after which it is highly advisable to familiarize the offending employee with it against his signature. If he refuses to sign or, due to his state of intoxication, cannot sign the document, the act should be read out loud and the appropriate note should be made in it.

Medical opinion as evidence of intoxication

After drawing up the report, it is necessary to invite the employee to undergo an examination procedure at a medical institution. According to clause 3 of the procedure, it can only be carried out by organizations with a license for medical practice, which includes, among other things, the service of examination for intoxication. A conclusion issued by a medical institution without an appropriate license will not be accepted by the court as evidence of the legality of the dismissal of an employee.

If the employee agrees to the procedure, he is given a referral (subclause 5, clause 5 of the procedure). The form of this direction is free.

The examination must include 5 actions (item 4 of the order). These include tests of biological fluids, examination, and a breathalyzer test. If any action was not carried out and/or is not reflected in the conclusion, the court may consider the dismissal illegal.

By the time of the examination, the external signs of intoxication recorded by the employer in the report may disappear and, as a result, be absent from the doctors’ report. There is judicial practice according to which dismissal in such situations is recognized as lawful. In this case, the time elapsed from drawing up the report to the medical examination was taken into account (for example, JSC Yamalo-Nenets District Court dated October 24, 2013 in case No. 33-2269/2013).

At the same time, if such signs are not described in the act (or the act is absent), and the examination revealed only the fact of drinking alcohol (without external signs of intoxication), the dismissal may be considered illegal (for example, JSC Primorsky Regional Court dated 07/09/2015 in the case No. 33-5668). Note that this confirms the need in all cases to promptly draw up a report with a detailed description of the employee and his condition.

Suspension from work duties before dismissal for drunkenness

After establishing the fact of intoxication, the employer is obliged to remove the offender from work (Part 1 of Article 76 of the Labor Code of the Russian Federation). The time of suspension will not be considered absenteeism, but wages will not be accrued for this time.

The removal must be formalized by an order, the unified form of which does not exist. It is advisable to include:

• information about the employer;
• information about the employee (full name, position);
• indication of the circumstances of the dismissal - state of intoxication;
• a link to documents confirming the fact of intoxication;
• period of removal from work duties.

According to Part 2 of Art. 76 of the Labor Code of the Russian Federation, an employee cannot be allowed to work during the period of persistence of the circumstances for which he was suspended. In the case of intoxication, determining such a period can be difficult, because sometimes the state of intoxication is so severe that it may not pass for several days.

IMPORTANT! If the employer, having established the fact of intoxication, nevertheless allowed the offender to work, then responsibility for possible negative consequences (damage to property, injuries) falls on him. And responsible officials who did not carry out the suspension, being aware of the situation, may be punished for violating labor safety rules - as under Art. 5.27.1 Code of Administrative Offenses of the Russian Federation, and under Art. 143 of the Criminal Code of the Russian Federation.

How to fire someone for drunkenness at work? Order of dismissal (sample)

Dismissal for drunkenness at work is nothing more than a disciplinary measure. Therefore, it is necessary to be guided by the rules on the imposition of such rules established by the Labor Code of the Russian Federation.

Before making a decision on dismissal, you should request an explanatory note from the employee (Part 1 of Article 193 of the Labor Code of the Russian Federation). Failure to comply with this requirement entails the dismissal being declared illegal (JSC St. Petersburg City Court dated September 23, 2014 No. 33-14346/2014).

It is best to do this after the end of the suspension period. If you request an explanation immediately after discovering someone drunk at work, the court may find a violation, indicating that the employee’s intoxication resulted in his inability to write a correct explanation.

The form of the explanatory demand has not been established. It is still recommended to put it in writing and give one copy to the employee against his signature, and if he refuses to sign it, draw up a report.

After 2 working days (this is the period during which the explanatory note must be written), the employer has 2 options:

1. If an explanation is not provided, then a report is drawn up about this. A written request for an explanation and an act of failure to provide it will be sufficient for dismissal.
2. If the employee has written an explanatory note, the reasons for the misconduct indicated by him should be assessed and, taking into account its severity, the type of disciplinary sanction should be determined. It is possible that the employee was poisoned by toxic fumes at work, resulting in toxicological intoxication.

IMPORTANT! The employer should remember that, by virtue of Art. 261 of the Labor Code of the Russian Federation, a pregnant woman cannot be fired for the offense in question. Therefore, it will be necessary to apply another type of penalty to her (JSC Khabarovsk Regional Court dated 05/08/2015 in case No. 33-2767/2015).

There is nothing complicated in drawing up an order for dismissal for drunkenness. A sample of it can be found on our website. It should be remembered that it is enough to issue only one order - dismissal, since in this case it is precisely this that is the disciplinary sanction. That is, there is no need to issue a separate order to impose disciplinary liability.

Proportionality of the penalty in the form of dismissal to the violation

The courts do not always recognize dismissal as commensurate with the gravity of such an offense as showing up drunk at work. Therefore, in each specific case, the employer should pay more attention to the explanations provided by the offending employee, as well as evaluate the previous behavior of the offender and his attitude towards work in general. This was indicated by the Plenum of the Armed Forces of the Russian Federation (clause 53 of Resolution No. 2), and this is also stated in Part 5 of Art. 192 Labor Code of the Russian Federation.

Thus, the Tver Regional Court, in its ruling dated March 10, 2015 in case No. 33-687, declared the dismissal illegal, citing the following reasons:

1. The employee has been working at the company for a long time.
2. Disciplinary sanctions have never been taken against the employee before.
3. The employee is close to retirement age.
4. There were no negative consequences for the misconduct for the employer.

Thus, before making a decision to dismiss an employee for appearing drunk at work, you should once again assess the situation and make sure that there are mandatory conditions for terminating the employment contract, such as:

• sufficient evidence of intoxication;
• establishing the employee’s guilt in the onset of intoxication;
• appearing drunk at the workplace and during working hours.

You can only fire someone for drunkenness if these facts are combined; one of them is not enough. In addition, the employer should consider imposing a non-dismissal penalty based on the employee's characteristics.

Hello! In this article we will talk about dismissing an employee for drunkenness.

Today you will learn:

1. What is the procedure for dismissal for drunkenness;
2. At what time can you not be fired for this;
3. How to record the fact of intoxication.

If an employee is intoxicated at his workplace, the manager has every right to fire him. Another thing is that this procedure has its own nuances, without which the dismissal will simply become illegal. Today we’ll talk about how to do everything right and avoid a negligent employee going to court.

Peculiarities

The issue of dismissal of minor employees caught drinking alcohol is resolved with the participation of the commission on juvenile affairs.

An employee who finds himself in a state of intoxication through no fault of his own is not subject to dismissal. An example of this is a situation where, due to a violation of safety rules, a person breathed toxic fumes and because of this fell into a state close to intoxication.

Registration of dismissal

If the manager decides to terminate the employment contract, a corresponding order must be issued. There is nothing complicated in its preparation; the main difficulty is to familiarize it with the signature of the employee who will be fired.

The order is entered into the personnel register.

After these procedures, the final calculation is made. They pay wages and vacation pay. At the same time, no money is accrued for the period while the employee was suspended from work. The amounts that were paid must be recorded in accounting documents.

At the last stage, an entry is made in the work book and in the employee’s personal card.

This order is not final - it can be challenged in the courts.

How proportionate is the offense and the penalty?

Judicial authorities do not always consider dismissal to be a proportionate punishment for appearing at work while intoxicated. Therefore, the employer must not only take explanations from the employee, but also take into account what his behavior was before the offense, how he related to work in general, and only then make a decision.

Let's look at an example of judicial practice in this situation.

Example. The court of the city of T. recognized that the dismissal of citizen O. from work for appearing drunk during working hours was illegal, since:

• Citizen O. worked at this enterprise for more than 10 years;
• Never violated labor discipline before;
• After 3 years, citizen O. must retire;
• O.’s behavior did not entail any negative consequences.

Thus, before dismissing an employee, assess the situation, make sure that all the conditions for dismissal are present, so as not to end up as a defendant in court. Be sure to consider the employee's characteristics when making a decision.

How to avoid being fired for drunkenness

There are two ways to avoid this far from pleasant procedure:

• Discuss the possibility of imposing another penalty at the employer’s discretion;
• Resign of your own free will.

Even in a case where intoxication is proven and confirmed, the employer may not allow dismissal under the article. For example, if a specialist is highly qualified and undertakes in writing not to drink alcohol, he may not be fired at all.

You can impose another penalty, for example, deprive of bonuses by a certain percentage.

Although the second option is the most suitable. In this case, the employer does not need to deal with paperwork, write acts, conduct examinations, and so on. Most often, an employee who expresses such a desire is met halfway and is not fired under the article.

How to challenge dismissal

If the dismissal took place and the employee does not consider himself to be at fault, he can challenge this decision in court within 1 month from the date of dismissal.

When going to court, the dismissed employee encloses copies of documents drawn up by the employer, as well as provide testimony from witnesses who will confirm that he is right.

The legality of the dismissal will be assessed by the court.

Conclusion

In conclusion of today’s conversation, I would like to give a few recommendations for both employees and employers: drinking 150-200 grams of alcohol during working hours is clearly not worth losing your job and ruining your reputation.

Current version of the Labor Code – dated July 1, 2017, dismissal for drunkenness has not changed since 2006. Regulated by clause 6, art. 81 Labor Code of the Russian Federation, subparagraph “b”. Today, according to this subclause, it is possible to dismiss an employee who appears at the workplace or the territory of the enterprise not only in a state of alcoholic intoxication, but any other (drug, toxic, another question is that they are more difficult to detect and prove).

Note! According to the law, you don’t have to be a “complete alcoholic” to say goodbye to your job. To receive a payment, you only need to show up drunk at work once.

Dismissal for drunkenness is a procedure that has extremely negative consequences for the employee and often becomes the basis for counterclaims from the former employee and litigation. Therefore, it is important to comply with all procedural aspects in accordance with the Labor Code, let’s consider them.

How does the procedure work?

To dismiss someone for drunkenness, you do not need the consent of the trade union - the intention of management and properly executed documents are sufficient. The exception is a person who has not reached the age of majority. According to Article 269 of the Labor Code of the Russian Federation, in this case, the consent of the authorities involved in the affairs of minors will be required. Who else cannot be fired if they show up to work while intoxicated?

A pregnant woman (they are fired only for several reasons: liquidation of the organization, agreement of the parties, at the request of the employee herself).

If the incident occurred during a period that is not a working period according to the production calendar. That is, dismissal for drunkenness at a corporate party held on an official holiday is impossible.

If the employee’s behavior does not involve intent or criminal negligence. For example, a situation where an employee inhaled vapors of toxic substances while performing official duties, or never “used” and felt unwell after the first glass at a buffet table - in this case there is no offense. Due to such intoxication, dismissal is unacceptable.

Examination of the state of intoxication is the most difficult, since the issue is not legal, but medical. It is regulated by law, but in practice it turns out to be too complicated for many employers. After becoming familiar with the procedure, it no longer matters to them how to fire an employee and under what article - it is better to do everything with a minimum of hassle. This benefits the employees themselves and gives them a good chance of reaching an agreement.

Attention: the manager has the opportunity and right, but not the obligation, to fire for drunkenness. If the offender admits the offense and undertakes to continue to comply with the standards of decent behavior and is a valuable personnel, a compromise can be made. In some cases, an employee can write a letter of resignation of his own free will. Many managers prefer to sign it rather than go through the red tape with the acts - in this case, the dismissed person will be able to avoid an unseemly record that will affect his future career.

Importance of Medical Examination

The subordinate never came to work drunk, but it happened that all the signs were there. Was he drunk or feeling very bad? How is the presence of alcohol in the blood determined? It should be understood that intoxication must be proven from a medical point of view. Many of the external signs (slurred speech, awkward movements, shiny eyes, inappropriate behavior) are possible under the following conditions: stress, illness, poor health, side effects of medications prescribed by a doctor.

The smell of alcohol in itself is not evidence; perhaps a jar of rubbing alcohol was accidentally knocked over on an employee, or he was forced to rinse a sore tooth after visiting the dentist.

Blood alcohol concentration is determined in ppm. There are five stages of intoxication, light - 0.5 to 1.5 ppm, heavy, fifth - from 5 to 6. But external manifestations are too individual.

It is noteworthy: Article 81 of the Labor Code is formulated in such a way that it is impossible to get rid of an employee who “uses” at work; it is necessary that he be in an inadequate state. That is, it is impossible to count for drunkenness in the workplace, even if ten witnesses saw their colleague pour himself a glass and drink it. It is necessary to prove that this glass had negative consequences.

Despite the importance of a medical report, the Labor Code, according to the Supreme Court of the Russian Federation, does not oblige it to be carried out. The dismissal procedure does not necessarily imply the presence of a medical protocol in the package of documents. The court can side with the employer without him, the main thing is that other evidence is convincing. There are precedents in judicial practice when a dismissed person tried to challenge his dismissal for drunkenness, claiming that a medical examination was not carried out on him, but the court considered the testimony of eyewitnesses, the employee’s work performance before the precedent, and the drawn up report documenting the case as sufficient evidence.

How to conduct a medical examination

Dismissal under an article for drunkenness does not have to be accompanied by a medical examination, but if it was decided to carry it out exclusively according to the rules, otherwise its results are easily disputed in court and can even be turned against the employer. The instructions that must be followed were approved back in 1988 (edited on August 12, 2003). Full title of the document: Temporary instructions on the procedure for a medical examination to establish the fact of alcohol consumption and intoxication. Below are the most important points:

• Referral for examination - within 24 hours. Later it no longer makes sense.
• Not only the manager, but also any other citizen who wants to protest the drawn up act recording the fact of appearing at work while drunk can send a complaint.
• An employee can undergo the procedure on his own initiative if he considers the act unfair and wants to have evidence in hand.
• Upon referral, the offender must be notified of his right to refuse the procedure.
• At least 2 witnesses must be present.
• Refusal from the procedure is documented in an act, certified by the signatures of the manager and two witnesses (at least).
• An employee is sent only to official institutions (drug dispensary, district hospital, etc.). On-site examination is possible in specially equipped vehicles.
• The doctor is informed of the reasons that necessitated the examination.
• The person being examined must have a document proving his identity.
• The narcologist draws up a protocol in 2 copies. All devices and techniques used by the doctor must be permitted by law. This is a delicate point - the discrepancy between the equipment and the required parameters is easy to protest.

In the document, the doctor clearly formulates the discovered facts. In addition to the extremes: the employee is sober or intoxicated, intermediate ones are also possible. For example, a citizen who was examined drank alcohol, but this had no consequences, there were no signs of intoxication. It can also be established that visible disturbances (gait, hand tremors, etc.) are the result of other reasons, for example, health problems. In this case, there is no alcohol intoxication.

Attention: the ambulance does not conduct examinations - this is prohibited.

The procedure for dismissal under article for drunkenness

What exactly should you do if there is no doubt that the employee is intoxicated? There are a number of activities that are universal and should be taken. Not all of the points described below are mandatory from the position of legislators, but all are desirable and will help you avoid a lot of trouble if you have to prove your case in court. The procedure for dismissal under the article for drunkenness:

1. Obtain the testimony of several other persons. Perhaps the culprit’s colleagues from other departments.
2. Suspend the employee from work. This point is not required, but desirable. According to Art. 79 of the Labor Code of the Russian Federation, there is such a requirement by law. This is logical: an inadequate condition will most likely prevent the employee from performing work functions and may even harm both himself and others - his boss is responsible for this. An order (instruction) is drawn up regarding the removal. An employee’s refusal to sign this document does not affect its validity; it comes into force regardless of his wishes. The refusal simply needs to be recorded by drawing up an appropriate act.
3. Draw up a report on the employee’s appearance in an inappropriate manner. The form is free, you can download ready-made samples. In addition to the standard details, signs that prove the fact of intoxication must be written down. The time frame for removal from work and information about referral to medical care should be indicated. inspection. You need to pay attention to the document; it will be the main basis (in addition to the medical opinion) if you have to defend your decision in court.
4. Medical examination. It should be carried out according to the letter of the law - as described above.
5. Demand an explanation from the sobered employee. It is not always possible to obtain it from the employee who has been at fault, but it is advisable. Dismissal for showing up at work in an inadequate state is precisely a disciplinary sanction (Article 192 of the Labor Code of the Russian Federation). If you refuse to write an explanatory note, you should draw up an act.
6. Order of dismissal - it is prepared according to the rules indicated below. The period is one month from the moment of the incident (Article 193 of the Labor Code of the Russian Federation). Within 3 days - familiarization of the dismissed person with the order. He must sign the document. In case of refusal, a report is drawn up.
7. Entry in the work book. HR people know how important accuracy is here. The wording may vary, but must include the reason and reference to Art. – “subparagraph “b” of paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation." No cuts.
8. Attention! All acts or employee refusals to familiarize themselves with them must have at least three signatures: the signature of the boss and two witnesses (indicating their positions).
9. On the day of dismissal, a book and other necessary documents are issued, the final payment is made in accordance with the law - the procedure is general here, regardless of the grounds for which the employee is dismissed.

Drawing up an order

The order is drawn up according to the standard T-8 form. Such documents must contain the following details:

Serial number and date.

Full name and position of the person to be dismissed.

Why was he fired? The reason is described as briefly as possible, but without abbreviated words. Be sure to refer to Art. TK. This entry is similar to the entry in the work book. Discrepancies are prohibited.

A detailed list of documents is written down that prove the validity of the dismissal. In case of dismissal of an employee for drunkenness, the following must be attached: a medical protocol, an act, acts of refusal, if the dismissed person refused to sign them.

Details of the manager, signatures: manager, dismissed.

Conclusions: dismissals for “unfair” reasons are one of the most difficult moments for a personnel employee. It is necessary to comply with all the points prescribed by law. Particular attention should be paid to the medical examination - it must comply with the Instructions. If it was decided not to conduct it, or the employee refused it, the certificate will be confirmed; it is important to enlist the support of several witnesses.

Drunkenness at work is a significant offense that allows the offender to be fired. This is due to the fact that the drunkenness of an employee can lead to serious negative consequences in the form of accidents, damage to people’s health (in particular, industrial injuries), as well as their death. For example, intoxication of a bus driver can cause injury and death to many passengers. We will tell you in the article how dismissal for drunkenness occurs and what documents are drawn up.

To be fired for drunkenness, the violation does not have to be repeated. An employer may immediately dismiss an employee who has violated labor discipline in this way. However, the decision on a specific case is made individually. The employer may be limited to a less severe disciplinary sanction for the first time, depending on the degree of intoxication, the consequences of the violation and the behavior of the offender.

Time limits for bringing disciplinary action for drunkenness

Punishment for drunkenness at work can be done within 1 month from the moment the offense was discovered. This period does not include:

• period of temporary incapacity for work;
• employee leave;
• the time required to clarify the opinion of the Trade Union.

When you can and cannot fire someone for drunkenness

The corresponding disciplinary violation is recognized as such if the employee is intoxicated during working hours:

• at your workplace;
• on the territory of the enterprise;
• at another place of work by order of management (for example, a business trip).

It is not allowed to terminate employment relationships on the basis of such an article with the following employees:

• persons intoxicated by vapors of harmful substances at work;
• pregnant women;
• minors without the consent of the Trade Union, the State Labor Inspectorate and the Commission on Minors' Affairs;
• employees found drunk during non-working hours (with a normal schedule).

For example, if an organization has officially established a standard 40-hour workweek with a 5-day workweek (8 hours a day), then an employee coming to work with a fume on Saturday cannot be considered a disciplinary offense. This is a day off as it is not a paid working day. The same applies to unpaid overtime work (if an employee, for example, is forced to stay late in the evening without additional pay) or work on holidays.

Activating drunkenness at work

Regardless of what decision the employer makes regarding the punishment of the employee, in order to fix it, the necessary documents must be correctly completed. In addition, it is advisable to stock up on additional evidence in case there is a likelihood of a legal dispute on this matter.

Evidence in such disputes may also include testimony. Testimony from witnesses is heard in court and assessed along with written evidence. In order to reduce the risk of likely losing a case in the future, it is advisable to carry out all actions to detect the intoxication of an employee with the participation of witnesses.

List of documents drawn up when an employee is drunk:

Evidence of employee intoxication

Only a specialized organization with a license for such activities can reliably confirm the fact of intoxication. Not suitable for these purposes:

• calling an ambulance;
• involvement of medical center personnel and other persons incompetent in this matter;
• drawing up a conclusion by the employer’s staff;
• contacting a narcologist who is not an employee of an authorized organization.

Most often, it is difficult to determine intoxication by sight or smell alone, much less its degree. This is especially difficult to establish in cases of drug or other toxic intoxication. In this case, the employee’s refusal to go to the Narcological Dispensary is a weighty argument in favor of the employer.

You cannot use force on an employee or otherwise force him to undergo a medical examination. This may entail liability under the law, since its forced implementation is illegal. When considering a dispute in court, all evidence is considered together. The burden of proving that an employee is intoxicated lies entirely with the employer.

Written explanations must be drawn up in person. Witnesses, if necessary, must confirm all facts in court.

Step-by-step registration instructions

If you identify a case of drunkenness at work, you need to take the following steps:

Order to terminate the employment contract

Such an order can be made without prior notice to the employee. Familiarization with it must be made within 3 days from the date of issue. If the employee refuses to sign the order in the “Acquainted” column, it is necessary to confirm this fact with the participation of witnesses.

Often, the employee and the enterprise agree to terminate the employment relationship on another basis - agreement of the parties. This option is possible when the employee behaves appropriately and does not want a negative entry in the work book. For the employer, such registration is beneficial in that after the termination of the employment relationship has been properly formalized by agreement of the parties, the employee will not be able to challenge the dismissal in court.

Controversial situations during dismissal

Unfortunately, under such circumstances, the matter quite often comes to trial. This is due to difficulties in finding employment with this wording of dismissal from the last job. Former employees usually base their position in court on the fact that they were not drunk.

In the absence of an examination carried out by an authorized organization and duly executed, confirming a sufficient degree of intoxication, such a case may have judicial prospects. The court's decision depends on the quality and completeness of the evidence presented by the employer. Judicial practice shows that judges often reinstate such former employees, award them wages for the period of forced absence, and even order them to compensate them for moral damages.

Brief examples from judicial practice:

The emergence of controversial situations in such cases can only be prevented by correctly filling out all the documents. If there is indisputable evidence of the employer's intoxication, the employee is unlikely to sue and waste his time in vain.

Rating of the 5 most frequently asked questions:

Question No. 1. What blood alcohol level is considered sufficient for dismissal?

To be dismissed under this article, it is enough to exceed the level of 0.3 ppm. This is the upper limit of the stage of mild intoxication.

Question No. 2. What should you do to avoid exceeding the blood alcohol limit?

Do not drink a lot of alcohol before work, stop drinking it at least 12 hours before your shift. Alcohol is eliminated from the body faster during physical activity. You can also rinse the stomach with a solution of potassium permanganate and water.

Question No. 3. Is it possible to fire an employee if he did not sign any document and did not go anywhere to be examined?

Yes, it is possible if the employer has documented everything correctly, with the participation of witnesses.

Question No. 4. How to avoid being fired for drunkenness if you are caught doing it?

Try to negotiate with the employer about dismissal on a different basis.

Question No. 5. Is it possible to draw up the necessary acts when an employee is intoxicated in free form?

Yes, it is possible, since there are no requirements for the preparation of these documents in the legislation. However, it must be borne in mind that any document must have mandatory details in the form of a name, date, place of execution, a statement of the essence of the issue in all details and signatures of the persons who compiled it and witnesses.

Among the many reasons for dismissal is drunkenness, which is one of the most unpleasant and at the same time controversial. After all, to convict drunk it can be quite difficult in the workplace, the accusation needs to be confirmed medical certificate, while forcing someone to undergo an examination is illegal. The law stipulates dismissal under the article for drunkenness in:

"An employment contract may be terminated by the employer in the following cases:

1. the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication.”

The law protects the parties, both the employer and the employee. Therefore, with the right approach to the dismissal procedure, you can get rid of drinking worker already from the first time he was at work in drunkenness. But the accused can also appeal the decision to dismiss him or even complain about slander that has damaged his reputation. This makes a competent legal approach to the case key to its positive resolution.

The right to dismissal: what the law says

You can fire a person for drunkenness only when drunk man seen in work time at your workplace, enterprise territory, office, or outside the workspace, but being sent somewhere for work duties, as well as on a business trip. If working hours are over according to the schedule, it will be difficult to prove that you drank strong drinks while working. This, of course, does not apply to irregular working hours.

In controversial issues, the court usually takes the employee’s side, so the employer needs to be especially careful in collecting documents and facts for dismissal for drunkenness.

By pp. “b” clause 6. part 1 art. 81 Labor Code of the Russian Federation(dismissal for drunkenness) it is impossible or difficult to fire certain categories of employees:

• minors (their dismissal must be agreed upon with the commission for persons under the age of majority, the labor inspectorate);
• pregnant women.
• who have reached a state of intoxication through no fault of their own (due to toxic substances, toxic fumes).

To be sure that a person used at work, you need medical report. In this case, unfounded accusations will be inappropriate and may even be considered slander. To easily understand whether the employee is drunk, need to know signs alcohol intoxication, including:

• the smell of alcohol;
• facial redness or paleness;
• difficulty coordinating movements;
• speech disorder;
• emancipation unusual for humans;
• trembling of hands, fingers;
• behavior that is inappropriate to the situation;

If you notice even several of the above symptoms at once, you still need to prove that they are caused by alcohol. After all, their cause can also be overwork, sunstroke, poisoning or a side effect from medications. Therefore, it is necessary to proceed to the procedure drawing up an act about the appearance of an employee intoxicated at work or drinking in the workplace and conduct a medical examination of this fact.

Procedure for dismissal for drunkenness

If an employee is caught in a state of insanity during working hours, the employer may begin the dismissal procedure. subparagraph “b” of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation “Termination of an employment contract at the initiative of the employer”. If an employee is caught drunk at work, first of all, you need to make sure that the drinking of alcoholic beverages occurred at a time when the person was scheduled to work. After all, if this took place in the office, utility room, etc. after work - there are no legal grounds to fire a person.

First, you need to record the fact of an employee appearing in a drunken state on paper. According to paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, not only a medical report, but also a well-drafted act, witness testimony can confirm this:

“The state of alcoholic or drug or other toxic intoxication can be confirmed both by a medical report and by other types of evidence, which must be assessed accordingly by the court.”

So, the algorithm of actions should be like this:

1. We collect witnesses to confirm the facts.
2. We draw up a report on the appearance of an employee in a drunken state.
3. We suggest that the employee undergo a medical examination to confirm intoxication.
4. If a person refuses to undergo medical procedures, under no circumstances should he be forced to do so. It would be correct to draw up an act of refusal to undergo a medical examination.

Without a medical certificate, you will not be able to immediately fire a person, but you will achieve his removal from work duties, and later you can get his dismissal in court.

We draw up the act correctly

An act of a person showing up at work while drunk can be initiated and drawn up by anyone official who has the authority to monitor compliance with labor discipline, that is, by the head of the department, the head of the company, and the personnel officer. There is no single strict form for this document; each organization can draw it up in its own way. But so that in the future the court does not have grounds to invalidate it, it is necessary to indicate the following data:

In order not to confuse intoxication with other human conditions, for example, after taking medications or during illness, you need to rely on the criteria described in Appendix No. 6 to Order of the Ministry of Health of the Russian Federation dated July 14, 2003 No. 308 “On medical examination for intoxication.” If a person is really forced to use healing alcohol-containing tinctures, he must provide evidence.

It is also important to give the employee familiarize with the drawn up act and sign on the document. If he refuses to do this or is unable to do so, an appropriate note is made. Or the reason for refusing to undergo a medical examination, which the employee refers to, is recorded in another act, which is drawn up similarly to the first. In court, witness testimony can also serve as evidence.

Suspensions from work

Although the employer needs the article of dismissal for drunkenness in the workplace to dismiss a person according to the law, even in the first case when he was found drunk at work, he is not obliged to do this immediately. It often happens that management limits itself to warnings and reprimands, especially if the employee is valuable and difficult to replace.

But according to Art. 76 Labor Code of the Russian Federation Anyone in a state of alcoholic (or drug) intoxication must be immediately removed from work:

"The employer is obliged suspend from work(not allow to work) an employee: who appears at work in a state of alcohol, drug or other toxic intoxication;.”

If the management ignores this norm, it will responsibility is assigned for all the consequences of inadequate performance by a drunken employee of his work duties. Suspension from work must be formalized by the head of the department where the person works, or by the head of the organization with the appropriate order or directive.

Dismissal as a disciplinary measure

Thanks to the preparation of reports on the employee’s appearance at work while intoxicated, a corresponding medical report and other evidence, it becomes possible to impose penalties on the employee disciplinary action. The procedure for its use is described in Art. 193 Labor Code of the Russian Federation. Let us briefly quote some norms:

• “Before imposing disciplinary action, the employer must request a written explanation from the employee.”
• “Disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.”
• “A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission.”
• “The employer’s order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance.”

It is also necessary to take into account the norm set out in Part 5 Art. 192 Labor Code of the Russian Federation, according to which, when imposing a disciplinary sanction, additional factors- severity of the offense, circumstances, result. Then they draw a conclusion and choose from possible penalties, including:

• rebuke;
• comment;
• dismissal for specific reasons.

If the offense did not have serious consequences, the person has not previously been convicted of drunkenness in the workplace, the manager may not fire him.

The form of the corresponding dismissal order may be different, depending on the organization’s document flow rules, which are approved by the manager. The employee must be familiarized with the order, after which a record of dismissal must be made. pp. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation in the work book, which is also familiarized to the person being dismissed against signature.

Dismissal for drunkenness in the workplace is a serious blow to your work reputation for life. This is a frequent reason for lawsuits from employees dismissed for such misconduct with a demand to reinstate them or change the incriminating entry in the work book.

If you have difficulty dismissing an abusive employee or, conversely, you have become a victim of unfounded accusations, it is better to seek help from a qualified lawyer who has already encountered such cases.