About drunkenness in the workplace. Worker Appeared on RM in a state of intoxication! Need Form Documents

A drunk worker negatively affects the production process. In addition, in many professions, alcohol intoxication creates an increased danger to others. Therefore, the question of the adequate condition of employees should worry every employer.

Getting fired for drinking at work - article

The current Labor Code of the Russian Federation classifies the drinking of alcoholic beverages at the workplace as a gross violation of labor discipline, for which the guilty person can be fired. Also, such actions are related to simply appearing in a state of intoxication at the workplace or on the territory of the enterprise. Moreover, dismissal is possible even with a single fixation of these circumstances.

Dismissal for drinking - step by step instructions

So that in the future the employer does not have problems with an employee fired for drinking, it is necessary to ensure the correct dismissal procedure.

Suspension from work

Officials of the employer, when an employee appears with signs of intoxication, are obliged to take measures to remove him from work. To do this, a memo from the head of the structural unit is submitted to the name of the head, which contains information that the employee is in a state of intoxication. The head is obliged to immediately issue an order to remove him from work and take measures to prevent the citizen from performing official duties. If the suspension does not follow, then his manager will be responsible for all the negative consequences of the work of a drunk employee. The employee must be familiar with the suspension order, and at his request, he must be given a copy of the document.

Drawing up an act of violation

Further, it is necessary to document the fact that the employee was in a state of intoxication. For this, a special act on violation of labor discipline or an act on being in a state of intoxication is drawn up. There is no single form of this document, so the employer can issue it arbitrarily, but taking into account the necessary information. The act must contain:

• Name of company;
• Place, date and time of compilation;
• Data of the employee in respect of which it is drawn up: full name, position, structural unit;
• Description of signs of intoxication: the smell of alcohol from the mouth, incoherent speech, inappropriate behavior, etc.;
• Description of the circumstances in which the violation was discovered (for example, while at the workplace);
• Time of suspension from work with reference to the order number;
• Time of referral for medical examination;
• Information about witnesses;
• Signatures of all persons present at the drawing up of the act.

The employee in respect of whom the act is drawn up has the right to give written explanations, which must be attached to the document. If the citizen refuses to sign the act, then it is necessary to reflect this fact in it by means of an appropriate entry and signatures of witnesses. The act is drawn up in two copies, one is transferred to the employee, the second - to the employer.

Medical examination

To confirm the state of intoxication, the employee must be sent for a medical examination. Such an examination can only be carried out by a medical institution that has a license for such activities. The employer is only required to deliver the employee to a medical facility and issue a referral for examination. According to its results, an official conclusion is made, which contains information about the presence of alcohol in the body and its amount, and the degree of intoxication is also determined.

Important: the employee has the right to refuse a medical examination, this must be reflected in the act. In this case, dismissal for drunkenness at the workplace is possible on the basis of this document only.

Getting an explanatory

Another mandatory document for a drunk is his explanatory note. Her employee must write immediately after appearing at the workplace after sobering up. In it, he must state his opinion on the circumstances of the violation of labor discipline committed by him. An explanatory note is also needed if the employee has already given written explanations when drawing up the act and his removal from work. The explanatory note is attached to the act and is used in further consideration of the issue of applying a disciplinary sanction to the employee.

Drafting a dismissal order

When all the documents on the violation are collected, the manager must decide on the application of punishment to the employee for a gross violation of labor discipline. Upon dismissal, an order to this effect must be issued within one month from the date of receipt of the last explanatory note. It must indicate the basis - dismissal for being intoxicated at the workplace. Also, the document should contain references to the act and the medical report, if any. The employee with the order must be familiarized with the signature within three days from the date of publication. If he refuses to do so, an appropriate act is drawn up.

Making an entry in the workbook

After the order, the employer can only make an entry about the dismissal in the work book of the employee. Here it is necessary to ensure the accuracy of the wording, since dismissal under the article for drunkenness significantly affects the career of an employee. First of all, the frequency of detection of violations of labor discipline is indicated: single or multiple. In the latter case, the employer must have the documents discussed above for each case at the disposal of the employer. Legislation also allows you to dismiss for drunkenness and the first such violation.

Upon dismissal, it is necessary to pay all the amounts due to the employee: salary for hours worked, compensation for unused vacation, etc. In this regard, the termination of employment is no different from. But such an employee may not be paid incentive payments, such as a bonus,.

Advice: it is better for a person who is threatened with dismissal for drunkenness to write a statement of his own free will before the issuance of an order for dismissal under the article. In this case, the work book will contain an entry on the termination of the employment contract at the initiative of the employee, which will not scare away other employers.

Frequently asked Questions

Labor legislation is quite complicated, so the situation of dismissal for drinking raises many questions among both employers and employees. As statistics show, such requests are almost more popular than requests for .

Who can't be fired for being intoxicated at work?

The state of alcoholic intoxication in the performance of official duties is one of the most serious violations. However, there are situations when an employee cannot be fired. According to the requirements of the law, it is not allowed to dismiss a pregnant woman, including if she is in a state of intoxication. In this situation, the employer must draw up the entire package of documents on the fact of the drunken state of the employee, carry out her suspension from work, but dismissal is not allowed.

It is impossible to dismiss an employee who was in such a state due to a violation of the production process as a result of an accident for alcohol intoxication. In this case, the employee is not at fault, since the drunken state is caused by alcohol vapor poisoning (and here we are talking about harming the employee’s health, and not about violating labor discipline).

What degree of intoxication can lead to dismissal?

The current legislation does not contain requirements for the degree of intoxication at which an employee can be fired. Therefore, the application of such punishment lies entirely with the employer, and he independently decides in what situations it is possible to dismiss an employee who appeared at work in a state of intoxication. Accordingly, dismissal is also possible with mild intoxication (if there are sufficient signs of it). This circumstance should be taken into account by those employees who come to work "after yesterday." Most often, they retain individual signs of intoxication: hand trembling, the smell of alcohol from the mouth, redness of the skin. Moreover, when sent for a medical examination, an examination can show the presence of alcohol in the body. Therefore, in such situations, and come to your senses, which will avoid trouble with the employer.

Is it possible to challenge dismissal for drunkenness at work?

Dismissal for drinking is a rather unpleasant procedure for an employee, since the appearance of such an article in the work book often makes it difficult to find further employment. But if there are sufficient grounds to believe that such a dismissal was unlawful, the employee has the right to go to court with a request to cancel the entry in the labor and recognize the dismissal as illegal. It should be borne in mind that you can apply to the court only within one month from the date of issue of the work book.

The basis for the cancellation of such a dismissal may be the provision by the employee of evidence that he was not intoxicated. In practice, only a medical report is recognized as such evidence. In addition, dismissal may be declared illegal if the employer fails to comply with the procedure for registering the fact of intoxication at the workplace. Errors or the absence of any document lead to the fact that the court recognizes the dismissal as illegal and reinstates the employee in his position.

Another reason for canceling a dismissal for drunkenness is that the employer missed the monthly deadline for bringing to disciplinary responsibility. Since dismissal in this case is a disciplinary sanction, it is necessary to make a decision on it within one month from the date of fixing this fact. In all other cases, it is quite problematic to challenge the dismissal under the article for drunkenness. And in judicial practice, there are almost no decisions in favor of the employee on other grounds than those listed above.

Can I be fired for drinking without a medical examination?

Dismissal for being at the workplace in a state of intoxication is also possible without medical confirmation of such a state, an appropriate act is sufficient (but provided that the employee was offered to undergo such an examination, and he refused it in front of witnesses). If there was no such proposal, then dismissal only if there is an act is not allowed. In this case, the employee must indicate in the act and in the explanatory note that he asks to be sent to undergo a medical examination. If the employer refuses to do this, further dismissal and the application of other measures of disciplinary action against the employee are not allowed.

By law, every manager has the right to terminate an employment contract with an employee who appears at the workplace in a state of intoxication. The possibility of dismissal for drunkenness is provided for in paragraphs. b p. 4 art. 81 of the Labor Code of the Russian Federation. As practice shows, a person who comes to work in a state of intoxication has a significant decrease in efficiency and concentration, which can lead to adverse consequences for other employees and even to tragedy.

Dismissal for alcohol intoxication is a logical reaction of any leader who has the right to both immediately terminate the employment relationship with a subordinate and to make a preliminary remark or reprimand to him. In any case, drunkenness is a serious reason for the delinquent employee to be suspended from duty on the day the misconduct was committed.

In general, the procedure for dismissal for drunkenness at the workplace practically does not differ from the usual termination of an employment contract at the initiative of the employer, with the exception of some points: he must have the necessary documents proving the guilt of the dismissed employee.

From a medical point of view, there are several degrees of intoxication: light, medium and heavy, this is due to the percentage of alcohol in the blood:

• Light: up to 1.5%.
• Average: up to 2.5%.
• Severe: from 2.5% or more.

Most often, the presence of more than 5% alcohol in the blood causes serious alcohol poisoning or even coma, which is a particular danger to the health of the worker himself and can lead to death. To prevent this, you need to immediately call an ambulance upon detection of a misconduct, and postpone the proceedings for a day when you can have a constructive conversation with the offending employee, and nothing will threaten his life. Drawing up an act on the employee being drunk in such a situation can be done on the same day, because the most important thing is that it be signed by at least two witnesses.

Legal basis

It is worth noting that at the legislative level, when dismissing for drunkenness, there are several articles at once, but each of them is applied strictly in specific cases:

• Art. 76 of the Labor Code of the Russian Federation, according to which the employer is obliged to remove from work an employee who appears in a state of intoxication. This measure is mandatory, and the manager must apply it at the time of discovery of misconduct.
• Art. 81 of the Labor Code of the Russian Federation directly indicates that the head has every right to dismiss a subordinate if he came to work drunk. It is not necessary to make a preliminary remark or reprimand in this case, because just one gross violation is enough for dismissal, even if the employee has not previously been subjected to disciplinary sanctions.
• Art. 192 of the Labor Code of the Russian Federation gives employers the right to apply any of the disciplinary sanctions (reprimand, reprimand or dismissal) in relation to their subordinates who came to the organization drunk. Which one to choose depends directly on the desire of the leadership.

The very procedure for applying disciplinary sanctions is regulated by Art. 193 of the Labor Code of the Russian Federation, which says the following:

• Before dismissing an employee, the manager must request an explanatory note from him. If it was not provided within two days, then he draws up the corresponding act. Failure to submit an explanatory note is not grounds for suspending the procedure for terminating an employment contract.
• An employer may dismiss a subordinate not later than one month after the misdemeanor was discovered. An exception is when an employee is on vacation or on sick leave - this time is not taken into account.
• Having issued an order to apply a disciplinary sanction, the manager is obliged to familiarize the employee with whom it was drawn up against signature within three days.

If the offending employee has claims against the employer and considers his dismissal illegal, he can appeal against it by contacting the labor inspectorate or the court.

How to fire for drunkenness in the workplace and what you need for this:

• To begin with, the director must record the fact that the subordinate is on the territory of the organization in a state of intoxication. For this, an act is drawn up and signed by two witnesses. Reports and complaints from other employees may be attached to the case.
• The head issues an order to remove his employee from work, then requires an explanatory note from him.
• Next, a memorandum in any form is prepared. It should reflect the grounds for dismissal and directly describe the situation itself.

According to labor law, an employer has the right to dismiss an employee who has committed a gross violation even once. Such violations include the appearance on the territory of the enterprise in a drunken state, because this sometimes poses a danger not only to the development of the enterprise, but also to the lives of the people working in it.

Step-by-step instruction

In order to properly terminate an employment contract due to the appearance of an employee in a state of intoxication in an organization, you must do the following:

• Draw up an act confirming that the employee is in a state of intoxication. This can be done by both the manager himself and the person responsible for the pass to the facility. After writing the act, it is necessary to enlist the signatures of two witnesses. It is desirable that they are not directly related to the delinquent employee and work in another department or division. Also, witness statements can be recorded in a memorandum.
• After drawing up the act, the manager must demand an explanatory note from the subordinate, having previously issued an order demanding that it be provided within two days, and familiarizing the employee with it against signature.
• After receiving an explanatory note, the employer has a month to decide which disciplinary sanction to apply to the employee: a remark, a severe reprimand or dismissal. If, after two days, an explanatory note has not been provided, then an appropriate act is created and certified by the signatures of two witnesses. It is worth noting that weekends and holidays are not taken into account, and if the perpetrator has not been able to explain his misconduct in writing, this will in no way prevent his dismissal.
• Further, the employer draws up a memorandum in any form, and it is supported by other documents: an act on appearing at work in a state of intoxication, an explanatory note for the employee himself, or an act on his refusal to provide written explanations.

After all of the above actions, the procedure for terminating the employment contract is carried out according to the general algorithm:

• The head draws up an order for dismissal for drunkenness, a sample of which is established by the Decree of the State Statistics Committee of 01/05/2004 No. 1 and is filled out in the T-8 form. If several people are subject to dismissal, then another form is used - T-8a.
• The issued order is recorded in the appropriate journal.
• An employee of the personnel department signs a note-calculation according to the Decree of the State Statistics Committee of 05.01.2004. No. 1 form.
• Immediately on the day of dismissal, a full payment is made to the employee: a salary is issued for the hours worked, compensation for unused vacation and other payments provided for by labor legislation or a collective agreement.
• Information about the dismissal is entered into the employee’s personal card, then they are certified by his signature and the signature of an employee of the personnel department. If the dismissed person refuses to sign on the card, then an appropriate entry about this is made on it.
• The workbook is filled out. The dismissed employee must sign it.

Dismissal under the article for drunkenness: entry in the work book

As you know, the correct filling of documents is of great importance, and any errors are not allowed here. To properly issue a work book, you should use a simple instruction:

• Enter the serial number of the entry in the first column.
• Next, enter the date of dismissal: day, month and year in numbers.
• Information is entered in the next column “Information about hiring ...”: the reason and a link to an article in the Labor Code of the Russian Federation. Example: “The employment contract was terminated at the initiative of the employer in connection with the appearance at work in a state of intoxication, paragraphs. b p. 6 art. 81 of the Labor Code of the Russian Federation.
• After the reasons, in the next column “Name, date and number of the document ...”, data on the document that is the basis for making these entries is indicated - the dismissal order.
• In conclusion, the head or employee of the personnel department, after all the entries, puts the seal of the organization and his signature, then issues a book to the dismissed employee, who, in turn, also signs on the same sheets.

After issuing a work book, an employee of the personnel department must make an entry about this in the Book of the movement of work books. If the dismissed person cannot receive this document due to absence from the workplace, then the employer must send a notification by mail about the need to come to the organization and pick up the documents, or give his consent to the postal item. There are frequent cases when former employees do not give an answer, but after some time they come to the company on their own for their documents, and then the manager is obliged to issue them no later than 3 days after receiving a written request.

There are plenty of cases when drunk people are present at their workplaces. The consequences of going to work in this form can be very different. Dismissal under the article for drunkenness is a completely legal procedure. To make an employee a shameful entry in the work book, the employer needs very little. Such a dismissal can subsequently spoil many attempts to get a job again, to make a career. "Service" drunkenness can bring other troubles.

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Slightly drunk worker: the core of the problem

Suppose yesterday there was a stormy feast with plentiful libations, and today the state of health is far from the best. In the meantime, you need to go to work. Most people deal with the problem by treating like with like. That is, they get drunk. The condition seems to be improving: the head clears up, the hands do not tremble, the stomach calms down, and so on. And now the man is at work. Another option is to drink alcohol during your lunch break. Almost everywhere there are lovers to wash down a plate of borscht with a can of beer - supposedly to improve digestion.

Such an employee may not feel drunk at all. However, this is not a matter of real sobriety, but only of sensations. Many people with a long alcoholic experience need a solid portion of alcohol to “get through”. However, regardless of their feelings, there is a certain dose of ethanol in the blood, which poisons the body in full swing, dulls reactions, and reduces the efficiency of the brain.

An allegedly sober employee can easily violate safety standards, make a mistake in work, let down colleagues and the entire organization. All this - without the slightest awareness of their miscalculations and insufficiently adequate behavior.

And what does it look like from the outside, and what are the consequences? The smell of fumes, yesterday and today, insufficiently coherent speech, loss of accuracy of movements - this is what the colleagues of the tipsy worker feel and see. If such an employee is part of a long chain, it can be broken, the whole process can go wrong. And it does not matter whether we are talking about working with documents (for example, the implementation of a complex project) or conveyor production.

The situation is even more serious if a person comes to work with a hefty dose of alcohol in the blood.

Drunk employee: a nuisance or a real threat?

At a certain dose of alcohol, a person's intoxication is no longer in doubt. Drunkness is recognized by a variety of signs: unsteady gait, “weaving” tongue, and so on. How responsible and correct will be the actions of such a person in the performance of official duties? In most cases, the probability of a full-time job for such an employee is very close to zero. Here is the simplest example of drunkenness in the workplace, and the consequences can be the most adverse.

If an obviously drunk employee usually works with clients, what impression will he make on his visitors? What opinion will be created about the department where this person works, about the entire organization as a whole? Damage to reputation and loss of customers are the most likely consequences.

In production, a drunk worker creates defective products, he can spoil the raw materials or damage the intermediate results of someone's labor. Equipment breakdowns are also not uncommon, which are caused by inadequate behavior, errors in the operation of equipment. Finally, the most unpleasant consequences are injuries and even death of people in the workplace. But a drunk worker can not only suffer himself, because of him, harm can also be caused to his colleagues.

The latter situation is already a full-fledged trial, including under a criminal article. It will involve not only the employee who “took on his chest”, but also his immediate superiors, people responsible for labor protection, and other management of the enterprise. How full-fledged will the company's activities be against the background of endless checks and other procedures? And most importantly: is someone's health or life not too high a price for a dose of alcohol?

What steps can an employer take?

If an employee is found drunk at the workplace for the first time, he may well get off with a temporary suspension and a warning.

The first measure is regulated by Article 76 of the Labor Code of the Russian Federation. The employee in this case is not allowed to work until he sobers up. How much time to allocate for this is decided by the employer, usually the period is one or two days. No sick leave, the employee is counted downtime. There is, of course, no pay either.

Warning is another measure. If everything was limited to a conversation, the delinquent employee can be sure that he was lucky. Perhaps the authorities took into account any unfavorable circumstances in the life of a subordinate or simply appreciate him as an employee. A more unpleasant option is a written warning. It will remain in a personal file and can significantly complicate promotion.

Finally, a drunk worker can be fired for drunkenness at the workplace, there is an article of the Labor Code of the Russian Federation about this. True, for the application of the last two measures, a certain procedure must be followed.

Medical examination and act of violation

The degree of intoxication of an employee is not determined "by eye". Difficulty speaking, swaying gait, and the smell of alcohol can be explained by illness, stress, and taking certain medications. To convict an employee of drunkenness, everything must be documented.

The procedure may vary from enterprise to enterprise, but in general terms it boils down to the following:

1. Information about an allegedly intoxicated employee should go to his immediate supervisor.
2. A commission is formed and an official investigation begins.
3. The result of the commission's work is a special act. It describes the current situation, indicates the signs by which the employee was suspected of drunkenness. The act is signed by members of the commission, employees-witnesses and the offender himself.
4. A drunk employee may be required to write an explanatory note. If this happens, the document is attached to the act.
5. If an allegedly intoxicated employee refuses to recognize himself as such, the employer may offer a medical examination. It is to offer, not to oblige, this question is purely voluntary. The employee's refusal to apply to the medical board must also be recorded in the act.
6. In case of consent, the employee undergoes a medical examination. This is a paid procedure, the costs are covered by the employer. If the employee's fault is confirmed, then the funds spent will most likely be later deducted from wages or recovered in some other way.

If the employee's drunkenness is confirmed, the offense is considered proven. And then the employer can only determine how exactly the employee will be punished.

Legislative reservations

Can dismissal under article for drunkenness be illegal, unreasonable? Of course. Not all employers are 100% conscientious. If the dismissal procedure was carried out with violations, the employee has the right to resolve the issue through the judicial authorities.

If the case goes to court, then the employer will have to fully and clearly justify the dismissal of the employee under Article 81 of the Labor Code of the Russian Federation. This will not work if an employee convicted of drunkenness at the workplace was found in this form at the end of the working day.

Just being in the workplace drunk is one thing, but performing your duties while drunk is another. If the employee proves that the situation was just such, the court may take his side and cancel the decision to dismiss him under the "drunk" article. Plus, the employer will be required to take the employee to work again, and even pay for a simple one. Of course, how relations will develop in terms of “boss-subordinate” after this is a separate question.

It is impossible to just dismiss an underage worker or a pregnant woman for drunkenness at the workplace. In such situations, the employer is obliged to involve the labor inspectorate and (if necessary) the commission on juvenile affairs.

Another situation is intoxication, which occurs as a result of any technological violations at work, and not after drinking alcohol. In this case, the state of intoxication occurs unintentionally, therefore, there can be no penalty in this regard.

How to improve relations with the employer?

Leaders are mostly ordinary people. The easiest way for a delinquent employee is to try to negotiate, to peacefully resolve the problem.

To take or not to take alcohol, each adult decides for himself. However, the question of whether to drink or not to drink outside the workplace should not arise at all. And if the problem of giving up alcohol is not solved by simple willpower, then more effective measures are needed. In this case it is necessary:

• to realize that the problem of alcohol abuse exists and is fraught with many unpleasant consequences;
• want to solve this problem;
• contact a narcologist, be examined;
• undergo a course of treatment.

It is possible that the narcologist will prescribe medications. This refers to drugs for aversion to alcohol. When using such drugs in the liver, the production of special enzymes that break down ethanol stops. As a result, drinking alcohol turns into simply terrible health, in the most severe cases, death can even occur. It is necessary to apply such treatment with full awareness of the consequences of an alcohol breakdown. But such therapy is a good reason to build relationships with the employer. Even before the end of the medication, you can bring a certificate to the service about. The authorities may well appreciate the efforts of the employee and abandon the thought of firing him. However, it is still not worth counting on the further tolerance of the leaders.

The article of the Labor Code for drunkenness does not stipulate the degree of drunkenness of an employee. Even a single arrival at work dazed can be a reason for dismissal. What will happen next? Difficulties with finding a new job, stress, financial problems. Perhaps a more than successful career will be interrupted. All of these potential negative consequences of drinking at work should be assessed as carefully as possible. And make the only right decision: there is work to be done - alcohol is prohibited.

Attention!

The information in the article is for informational purposes only and is not an instruction for use. Consult with your physician.

The traditions of our society do not reject the possibility of drinking alcohol even in the workplace. Sometimes the initiative to celebrate some event with champagne comes from the authorities themselves. However, this does not mean at all that the employer will look favorably on the regular drunken state of the team or its individual representatives. Most likely, the employee who has "went through" will face, and, possibly, dismissal for drunkenness.

Acts and laws governing the issue

Employees who were found on the territory of the enterprise in a state of intoxication, and also documented this fact together with witnesses, it's time to get acquainted with paragraphs. b) paragraph 6 of article 81 of the Labor Code of the Russian Federation. It says that intoxication is a gross violation of labor discipline. And, therefore, with the dismissal from work under this article of the Labor Code, you can not delay, but draw it up as soon as possible.

Since the code does not provide a step-by-step procedure for dismissal in a situation with alcohol consumption, many courts act on the basis of Resolution of the Plenum of the Supreme Court No. 2. It says that you can part with an employee, even if he did not drink at his workplace, but on the territory of the enterprise, but always during working hours.

If gatherings with alcohol are organized after the end of the shift, then under Art. 81 of the Labor Code of the Russian Federation does not fall into this case. But even then, the actions of a hired person are illegal, since they are an administrative offense (Articles 20.20 and 20.21 of the Code of Administrative Offenses of the Russian Federation), and may result in a fine. Only employees of the Ministry of Internal Affairs who were promptly called to the scene can bring the punishment to life.

Importance of medical examination

Only doctors can give an unambiguous and qualified answer about whether the employee was really drunk at work or simply spilled an alcohol-containing liquid on himself. Moreover, only the conclusion from the narcological dispensary will be considered legal, the opinion of a private doctor or clinic can be called into question.

It should also be borne in mind that the state of intoxication in medicine has a numerical dimension. A person is considered clinically sober if his blood contains less than 0.5 ppm of alcohol. This means that an adult man of average build can drink a glass of vodka and the doctor will not record in the act the grounds for dismissal for appearing at work in a state of intoxication, although there will certainly be a smell of alcohol from the employee.

How should a medical examination be carried out?

In order to insure in case of a labor dispute with an employee who immediately begins to look for ways to avoid a fair punishment, it is still better to correctly draw up the situation and send the subordinate for examination. This must be done in writing, in the form of a letterhead with the seal and signature of the head, indicating in it the reason for the survey. Even if a person refuses to go to the hospital, a note about this can be put on the document and certified by witnesses.

If the employee himself wants to prove his case, then he can not wait for a letter from the management, but go to the narcology himself. To obtain a certificate, he will need a passport.

Can I be fired without a medical examination?

Many are convinced that the conclusion of doctors is an integral stage of the dismissal procedure for drunkenness. However, the Supreme Court of the Russian Federation does not share this position. In his opinion, it is possible to issue a settlement without a certificate, but if there is other evidence of the guilty actions of the hired person, which can be unambiguously assessed in the process of judicial consideration of a labor dispute.

Whether it will be enough simple testimonies of witnesses or records from surveillance cameras, no one will say in advance. This means that a person fired for appearing in a state of intoxication always has a chance to challenge the actions of his superiors and be reinstated. A guarantee in this matter can only be given by a properly conducted medical examination and the conclusion of a doctor.

Dismissal procedure

Termination of an employment agreement always requires strict adherence to an intuitive step-by-step instruction. But in the event of dismissal under any clause of Article 81 of the Labor Code of the Russian Federation, this becomes vital.

Get multiple testimonials

In a situation with drunkenness, a leader cannot do without eyewitnesses. Any member of the team and even a casual visitor or client can become one. The main condition is the disinterest of the witness, his objectivity and, of course, a sane state.

Since the dismissal procedure will not be easy and, in itself, implies the emergence of conflicts, it is possible that the employer will have to seek the help of third parties more than once or twice. At each stage, these can be both the same people who were present when the fact of drunkenness was established, or new participants.

Suspension of an employee from work

An employer who encounters such behavior in a team needs to remember a few more points that stem from the appearance of a person in a state of intoxication:

• the specialist should be removed from the performance of his duties, art. 76 of the Labor Code of the Russian Federation;
• it is necessary to conduct medical examinations for those workers who should be allowed to work only after talking with a doctor before the start of the work shift;
• in the event of an emergency during the performance of labor functions, a person must be sent to the hospital if, in the alleged state of intoxication, he caused damage to the company or injured himself, Art. 229.2 of the Labor Code of the Russian Federation.

Draw up an act on the appearance of an employee in an inappropriate form

The Labor Code does not insist on the mandatory examination of an employee who is charged with appearing at work in a state of intoxication. There are many court decisions that confirmed the correctness of managers who fired employees for drunkenness at work.

Despite this, an act of gross violation must be drawn up in such a way that the regulatory authorities have no doubts about its objectivity. The procedure for compiling it or a sample is not established by law, but there are several points that need to be considered by those who want to know how to draw up such an important paper correctly.

First, you need to identify all the participants in the situation and their location, date and time of what is happening. Secondly, list the facts that make it possible to unequivocally qualify the employee as drunk. This is the most difficult task, since the same symptom can be caused both by alcohol and by completely innocent reasons:

Signs of intoxication	Possible objections of the caught "under the fly"
Unsteady gait, trembling hands, glittering eyes	Fatigue, excitement, fear and stress from the attacks of the authorities
Characteristic odor	Reception of alcohol-containing medicines, diseases of the gastrointestinal tract, in which aromas uncharacteristic of the body may appear
Redness of the skin, increased sweating	Increased room temperature, excessively warm clothing, increased blood pressure
Slurred speech, distortion of facial expressions	Strong emotions and loss of self-control
Pulse failure	Diseases of the cardiovascular system, tachycardia or banal stress
Non-standard reaction to what is happening and the action of external stimuli	In general, you can attribute it to anything, everyone has their own concept of a standard

Dismissal for drunkenness can be carried out without the involvement of physicians, based on the findings of eyewitnesses, paragraph 42 of the Decree of the Plenum of the Supreme Court No. 2.

Medical examination

Dismissal under the article, in itself, is unpleasant, and if it is written in the order that everything happened because of alcohol, then this threatens the employee with a long and unsuccessful search for an acceptable position. That is why the negative conclusion of a narcologist is more necessary for a hired person, since they can be kicked out for appearing in a state of intoxication without involving a doctor.

However, it is better for the employer to offer the employee in writing to undergo an examination and provide a certificate from the hospital. If a drunk employee could not be convinced of the need to visit a medical institution, then the authorities have no right to force him to do so. The unwillingness of the employee is drawn up by an act and signed by two eyewitnesses.

Explanatory note from an employee

Each employee has the right to explain their behavior or proudly remain silent. As for the employer, he is obliged not only to provide the employee with the opportunity to justify himself, but also not to urge him within two working days.

Procedurally it would look like this:

1. After drawing up the act of appearing in a state of intoxication, the management offers the employee.
2. If he even refused to familiarize himself with the proposal, then it is read aloud in the presence of two disinterested persons (an act is drawn up about the refusal).
3. Regardless of the consent of the person, it is better to wait two days, in case the employee changes his mind.
4. Consideration of the arguments or apologies set out in the explanatory note, and the adoption of the final decision (by the commission or solely by the head).

The management's proposal for the specialist to present his own vision of the situation may also be oral, but, in case of refusal, this can seriously complicate the matter if the dismissal under the article for drunkenness is challenged in court.

Termination of an employment contract for any reason can be executed using the unified form T-8. It is not required to specifically look for a sample order, if the reason for its execution was dismissal for drunkenness. The column "Grounds" mentions an unflattering reason for the employee to terminate employment relations with him and clause 6 of Article 81 of the Labor Code of the Russian Federation.

If the fact of drunkenness was not a single one, then in this line it is possible to make a clarification about the repeated gross violation of work discipline. You can make such an addition only when all such cases have been activated in the prescribed manner. If earlier the authorities preferred to look at such behavior through their fingers or made attempts to verbally influence, then the employee can quite successfully challenge the extended entry in the work book in court.

No more than 30 days must elapse between the date of discovery of the fact of drunkenness and the date of issuance of the order. That is how much time the Labor Code gives the employer in order to decide on the future fate of the employee, Art. 193 of the Labor Code of the Russian Federation.

Entry in the workbook

As soon as the dismissal order has seen the light of the day, the offender is notified of its content (this must be done under a signature or a refusal must be activated with the involvement of witnesses). After that, the base line from the order of the head is literally transferred to the pages of the work book.

In order not to give a reason to challenge the actions of the employer, it is better for personnel officers not to show their creative potential and not to make changes to the wording: to supplement, reduce or correct the reason for dismissal and the article of the Labor Code.

If the employee failed to defend the right to a more loyal entry in the work book, then he may have difficulties not only with further employment. Employment Law No. 1032-1 does not contain a prohibition on recognizing a person as unemployed, regardless of which article became the basis for the calculation. But its norms (Article 34 of Law 1032-1 FZ) make it possible to suspend the payment of benefits for the next three months to those who are fired for being at the workplace in a state of intoxication.

Is it possible to challenge the dismissal order under the article for drunkenness and how?

It is possible and necessary to fight against non-observance of one's own labor rights. Especially if the boss's conclusions are biased or frankly false. The surest way to dispel all doubts is to agree to a medical examination, and if it is not offered, then even demand it yourself.

If dismissal for drunkenness is just an excuse to get rid of an inconvenient specialist, and unscrupulous methods are used for this, then you need to look for flaws in the procedure. All gaps in leadership will become evidence of the innocence of the employee in court.

Those who are confident in their own rightness and are looking for a way to challenge the dismissal under the article for drunkenness should draw the attention of the judge to the following possible inconsistencies:

• the employer drew up an act of intoxication, but did not suspend him from work (Article 76 of the Labor Code of the Russian Federation) and did not offer to undergo a medical examination;
• not a single document has an employee’s signature, but only refusal certificates with signatures of witnesses (especially if in all cases these are the same people, and even more so, interested or connected with the boss);
• the decision to dismiss was taken unilaterally, without a medical report and without taking into account the employee's explanations.

There can be many more reasons for contacting the prosecutor's office and the court, but a person can expect a positive decision on the case only if the fact of intoxication was established incorrectly or it did not exist at all.

Dismissal for drunkenness is one of the heaviest articles in labor legislation. Such a record can permanently close a person’s way to some companies and to serious posts. In fairness, it is worth saying that they use subparagraph b) paragraph 6 of Art. 81 of the Labor Code, mainly in the most extreme cases, when the behavior of an employee goes beyond all reasonable limits.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

If an employee showed up at work in a state that gives reason to suspect that he is drunk or in a state of narcotic or other toxic intoxication, you should not immediately come into conflict with him. It is necessary to record the fact of intoxication, for example, to call a doctor for examination or to accompany the employee to a sobering-up station, drug treatment clinic or other medical institution and obtain a conclusion on the employee's condition.

And it is desirable for an individual entrepreneur to be present at the examination of the employee in person. This is necessary in order to understand whether the survey is conducted with violations. Their reason is both the negligence of the employees of the medical institution, and the refusal of the employee to conduct an examination, as a result of which the doctors may not carry out the necessary tests. If the examination report reflects that the employee refused to take tests, then from the moment the said certificate is received, the individual entrepreneur must understand that the examination was not carried out in full and such an act is not proper evidence that the employee was in a state of intoxication. In order for the dismissal not to be declared illegal by the court with the corresponding consequences for the individual entrepreneur, you should insure yourself and take care of the execution of other evidence.

Despite the fact that the examination is a legally impeccable way to establish alcohol intoxication, it is quite difficult to use it for a very banal reason - the unwillingness of the employee to undergo a medical examination. If the employee resists and does not want to go to a healthcare facility, we can assume that the first part of the task has been solved (about the second - a little later). You can resort to the services of security (if any) or call the police for help. True, in the latter case, it must be remembered that the request of the entrepreneur to deliver the employee, who is in a state of intoxication, to a medical facility, police officers are not required to fulfill (although more often than not, they still help than refuse). You can go the other way - call an ambulance (stating by phone a more or less plausible reason for the call (for example, poisoning) and ask the doctors to record in writing the fact that the employee was intoxicated.

As a result of the examination, a medical certificate may be issued, which will establish one of the following conditions of the employee:

1. sober, no signs of alcohol consumption;
2. the fact of alcohol consumption was established, signs of intoxication were not detected;
3. alcohol intoxication;
4. alcoholic coma;
5. state of intoxication caused by narcotic or other substances;
6. sober, there are violations of the functional state, requiring suspension from work with a source of increased danger for health reasons.

It should be noted that the current legislation does not directly establish the need for a medical certificate for the dismissal of an employee on the grounds we are considering. Moreover, the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 contains an indication that “the state of alcoholic ... intoxication can be confirmed both by a medical report and other types of evidence, which must be appropriately assessed by the court.” Such evidence may include:

• witness's testimonies;
• acts on the appearance at work in a state of alcoholic, narcotic or other toxic intoxication;
• memos of officials.

Let's figure out how they can and should be arranged.

An individual entrepreneur should not particularly rely on oral testimony in court (if the case goes to court). By the time the labor dispute with the dismissed person is considered, yesterday's workers-witnesses themselves can quit, “forget” what exactly happened, not come to the court session, etc. Therefore, it is preferable to still draw up an act, which, being signed by several employees, can be considered as written testimony.

Act on the appearance of an employee in a state of alcoholic (drug, etc.) intoxication drawn up in free form, but it must indicate:

1. date, place and time of compilation;
2. FULL NAME. and the position of the person who drew up the act;
3. persons (preferably at least two) in whose presence the act is drawn up. Ideally, if these are persons who are not related to the offender at work, for example, employees of other departments);
4. the state of the employee, which should be described in as much detail as possible, indicate external signs that give reason to assume that the employee is drunk (incoherent speech, unsteady gait, lack of coordination, smell, etc.);
5. signature of the person who drew up the act;
6. signatures of the persons present at the drawing up of the act.

A sample act is given in Example 1.

The employee may refuse to put a mark on familiarization on the act. In this case, it is necessary to draw up another act - on the employee’s refusal to sign, or make an appropriate note (“the employee refused to sign on the act”) on the first act.

Then it is necessary to invite the employee to provide written explanations about what happened. If he refuses to provide such explanations, another act is drawn up, a sample of which is given in Example 2.

And yet, it must be borne in mind that the presence of only an act and / or a memo about the appearance of an employee in a state of intoxication without a medical opinion sharply reduces the entrepreneur's chances of proving the legality of the employee's dismissal on this basis.

The reason for this state of affairs is the judicial practice, which for many years has developed in such a way that the courts recognized only a medical report as evidence of the dismissal of employees under this article, since from the point of view of judges, only a qualified specialist, that is, a doctor, can determine the real condition of an employee. Therefore, it is possible to formalize the dismissal of an employee only if all the documents listed above are on hand, that is, a medical report, acts and memos.

If all documents are available, you can issue an order for his dismissal in a unified form No. T-8. In the text of the order, the grounds for dismissal should be indicated - for appearing at work in a state of intoxication with reference to subparagraph "b" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation, and at the end of the order, provide a link to the completed documents as a basis. A sample order is in Example 4.

In addition, upon dismissal, a note-calculation must be drawn up upon termination of the employment contract with the employee (form No. T-61). It is issued in a standard way, as well as in other cases of dismissal. After issuing the order, it is necessary to familiarize the employee with it under the signature and make the final payment.

You should also give the employee a work book with a record of dismissal, ask him to sign in the work book (see Example 5) and in the Book of accounting for the movement of work books and inserts in them about receiving a work book.

Then you should complete the execution of the employee's personal card (form No. T-2), entering the reason for the employee's dismissal there and asking him to sign on the fourth page of the card (see Example 6).