Drunk employee in the workplace what to do. An employee came to work drunk

You can only be fired for appearing drunk at work: finding an employee in such a state outside of work, even during working hours, does not give reasons for dismissal on the grounds under consideration. The "work" referred to in sub. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, it is recognized:

directly the workplace of the employee;
the territory of the employer 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 was detained drunk at the checkpoint of an enterprise. The courts, as a rule, recognize such a 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 (AO) of the Vologda Regional Court dated February 8, 2013 No. 33-507 / 2013). The dismissal of a drunk employee caught in such a state at the checkpoint of the customer organization, on the territory of which the person works on behalf of the management, is also lawful on similar grounds (decision of the Moscow Regional Court dated 12/14/2010 in case No. 33-24139).

Circumstances of time: was the time working

In order to dismiss an employee under sub. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, he must be drunk precisely during his working hours, which is determined in the labor regulations, labor contracts, shift schedules. Circumstances of time directly affect the possibility of dismissal for drunkenness at work. So, for example, if the detention drunk at the checkpoint took place before the start of the working day, then the dismissal will be declared illegal (for example, JSC of the Yaroslavl Regional Court dated 10/18/2012 in case No. 33-5617).

Given this requirement of the law, it is impossible to dismiss an employee on the grounds under consideration who:

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

It is worth noting that the courts have a unified position regarding the situation when an employee was drunk while traveling to the place of business trip. The cabin of a train, aircraft 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).

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

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

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

Sometimes it is not possible to conduct an examination for objective reasons. For example, there is no medical institution of the corresponding profile nearby, or an employee is against the examination, and it is possible only if voluntary consent is given (as well as any medical procedure performed without vital indications).

IMPORTANT! It is recommended to start by drawing up an act of appearing at work in a state of intoxication, even if the employee agreed to undergo an examination. It should 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 that testify to the possibility of proving intoxication without the opinion of doctors. The employer's chances of winning a dispute about the legality of dismissal increase if there is a set of evidence - an act, a report, testimonies of witnesses, a memorandum / memo (see, for example, JSC of the Arkhangelsk Regional Court dated February 6, 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 fix the drunken state of employees. If there is none, then it is better to create it.

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

the basis for the order (usually this is a memorandum on the discovery of a drunk worker);
the purpose of the commission;
the composition of the commission indicating the full name 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 an act on an employee in a state of intoxication?

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

The form of the act is not 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 the employee identified in a state of intoxication;
signs of intoxication.

On 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 of December 18, 2015 No. 9 33n, hereinafter referred to as the procedure). Clause 6 of this document defines the signs of intoxication, each of which is already enough to be sent for examination, including if the employer suspects that the employee is drunk:

unstable posture and gait;
alcoholic smell;
speech disorders;
abrupt change in skin color.

These signs may be inherent in some diseases, so the employee's condition should be described in detail. Based on all the circumstances in the act, an appropriate conclusion is made.

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

Medical conclusion as proof of the fact of intoxication

After drawing up the act, it is necessary to offer the employee to undergo an examination in a medical institution. According to paragraph 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 order). The form of this direction is free.

The survey should include 5 actions (clause 4 of the order). Among them are analyzes of biological fluids, and examination, and checking with a breathalyzer. If any action was not taken and / or 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 act, may disappear and, as a result, be absent in the conclusion of doctors. There is judicial practice according to which dismissal in such situations is recognized as lawful. This took into account the time elapsed from the preparation of the act to the medical examination (for example, JSC of the 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 there is no act), and the examination revealed only the fact of drinking alcohol (without external signs of intoxication), the dismissal may be declared illegal (for example, the JSC of the Primorsky Regional Court of 07/09/2015 in the case No. 33-5668). Note that this confirms the need in all cases to draw up an act with a detailed description of the employee and his condition as soon as possible.

Suspension from work duties before dismissal for drunkenness

The employer, after establishing the fact of intoxication, is obliged to remove the violator 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 accrue during this time.

Suspension 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);
an indication of the circumstances of the removal - a state of intoxication;
link to documents confirming the fact of intoxication;
period of suspension from work.

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 preservation of the circumstances for which he was removed. 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 the responsibility for possible negative consequences (damage to property, injury) lies with him. And responsible officials who did not carry out the removal, being aware of the situation, can be punished for violating labor protection rules - as under Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation, and according to Art. 143 of the Criminal Code of the Russian Federation.

How to get fired for drunkenness in the workplace? Dismissal order (sample)

Download order form

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

Before making a decision on dismissal, an explanatory note should be requested from the employee (part 1 of article 193 of the Labor Code of the Russian Federation). Failure to comply with this requirement entails the recognition of the dismissal as illegal (JSC of the 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 a drunk at work, the court may find a violation, indicating that the employee's intoxication caused his inability to write a correct explanation.

The form of the explanatory request has not been established. It is still recommended to draw it up in writing and hand one copy to the employee against signature, and in case of refusal to put one, draw up an act.

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

If an explanation is not provided, then an act is drawn up about this. A written request for an explanation and an act of failure to provide it will be sufficient for dismissal.
If the employee wrote an explanatory note, the reasons for the misconduct indicated by him should be assessed and, taking into account its severity, determine the type of disciplinary sanction. 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 misconduct in question. Therefore, it will be necessary to apply a different type of penalty to it (JSC of the Khabarovsk Regional Court of 05/08/2015 in case No. 33-2767 / 2015).

There is nothing difficult in drawing up a dismissal order for drunkenness. A sample can be found on our website. It should be remembered that it is enough to issue only one order - on dismissal, since in this case it is it that acts as a disciplinary sanction. That is, there is no need to issue a separate order to bring to disciplinary responsibility.

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

Courts do not always recognize dismissal as proportionate to the severity of such an offense as appearing drunk at work. Therefore, in each specific case, the employer should pay more attention to the explanations provided by the delinquent employee, as well as evaluate the previous behavior of the offender and his attitude to work in general. This was pointed out by the Plenum of the Armed Forces of the Russian Federation (clause 53 of Resolution No. 2), this is also mentioned in Part 5 of Art. 192 of the Labor Code of the Russian Federation.

So, the Tverskoy Regional Court, in its decision dated March 10, 2015 in case No. 33-687, declared the dismissal illegal, citing the following:

The employee has been with the company for a long time.
Disciplinary sanctions against the employee have never been applied before.
The employee is close to retirement age.
There were no negative consequences of misconduct for the employer.

Thus, before making a decision to dismiss an employee for appearing drunk at work, one should re-evaluate 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 in a state of intoxication at the workplace and during working hours.

You can be fired for drunkenness only if these facts are combined, one of them is not enough. In addition, the employer should consider imposing a non-termination penalty based on the characteristics of the employee.

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. To ensure that the dismissal is not recognized by the court as illegal, with the corresponding consequences for individual entrepreneur, you should insure and take care of the design 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:

sober, no signs of alcohol consumption;
the fact of alcohol consumption was established, signs of intoxication were not detected;
alcohol intoxication;
alcoholic coma;
state of intoxication caused by narcotic or other substances;
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:

date, place and time of compilation;
FULL NAME. and the position of the person who drew up the act;
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);
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.);
signature of the person who drew up the act;
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).

The current version of the Labor Code - dated July 1, 2017, dismissal for drunkenness has not changed since 2006. Paragraph 6, art. 81 of the Labor Code of the Russian Federation, subparagraph "b". Today, according to this subparagraph, it is possible to dismiss an employee who appeared at the workplace or on the territory of the enterprise, not only in a state of intoxication, but of any other (narcotic, toxic, another question is that they are more difficult to detect and prove).

Note! According to the law, you do not have to be a "complete alcoholic" to say goodbye to work. To get the calculation, it is enough to appear at work drunk once.

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

How is the procedure

For dismissal for drunkenness, the consent of the trade union is not necessary - the intention of the management and correctly executed documents are enough. 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 is required. Who else cannot be fired when they show up at work in a state of intoxication?

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

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

If there is no intent or criminal negligence in the behavior of the employee. For example, a situation where an employee inhaled vapors of toxic substances while performing official duties, or never "used" and felt ill after the first glass at a buffet table - in this case there is no offense. In connection with 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 getting acquainted with the procedure, it no longer matters to them how to dismiss an employee and under what article - it is better to do everything with a minimum of hassle. This plays into the hands of the employees themselves and gives them a good chance of reaching an agreement.

Attention: the manager has the opportunity and the right, but not the obligation to fire for drunkenness. If the offender has acknowledged the offense and undertakes to continue to comply with the norms of decent behavior, is a valuable shot, you can compromise. In some cases, an employee can write a letter of resignation of his own free will. Many managers prefer to sign it, rather than arrange red tape with 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 are there. Was he drunk or feeling very unwell? How is the presence of alcohol in the blood determined? It should be understood that intoxication must be proven medically. Many of the outward signs (slurred speech, awkward movements, eyes shining, inappropriate behavior) are possible under the following conditions: stress, illness, feeling unwell, a side effect of medications prescribed by a doctor.

The smell of alcohol in itself is not proof, perhaps a jar of medical alcohol was accidentally knocked over on the worker or he is forced to rinse a bad tooth after visiting the dentist.

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

It is noteworthy that 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 calculate 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 opinion, the Labor Code, in the opinion of the RF Armed Forces, does not oblige it to be carried out. The procedure for dismissal does not necessarily imply the presence of a medical protocol in the package of documents. The court can take the side of the employer without him, as long as other evidence is convincing. There are precedents in judicial practice when a dismissed person tried to challenge the dismissal for drunkenness, arguing that a medical examination had not been carried out against him, however, the court considered the testimony of eyewitnesses, the employee’s work appearance before the precedent and the act drawn up, which recorded the case, as sufficient evidence.

How to conduct a medical examination

Dismissal under the 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 challenged in court and can even be turned against the employer. The instruction to be followed was approved back in 1988 (edited on 08/12/2003). Full name of the document: Temporary instruction on the procedure for a medical examination to establish the fact of alcohol consumption and intoxication. Below are the most important points:

Referral for inspection - within a day. Later - no longer makes sense.
Not only the head can send, but also any other citizen who wants to protest the drawn up act, fixing the fact of appearing at work in a drunken state.
An employee can go through the procedure on his own initiative if he considers the act unfair and wants to have evidence in his hands.
Upon referral, the perpetrator must be informed of his right to withdraw from the procedure.
At least 2 witnesses must be present.
Refusal of the procedure is formalized by an act, certified by the signatures of the head and two witnesses (at least).
An employee is sent only to official institutions (drug dispensary, district hospital, etc.). Exit survey in specially equipped cars is possible.
The doctor is informed of the reasons that caused the need for an 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 legally authorized. This is a subtle point - the inconsistency of equipment with the required parameters is easy to protest.

In the document, the doctor clearly formulates the discovered facts. In addition to the extreme ones: the employee is sober or intoxicated, intermediate ones are also possible. For example, a citizen who passed the examination used alcohol, but this had no consequences, there are no signs of intoxication. It can also be established that visible disturbances (gait, hand tremors, etc.) are the result of other causes, such as 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 the article for drunkenness

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

Get testimonials from a few more people. Possibly colleagues of the perpetrator from other departments.
Suspend an employee from work. This moment 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 state, most likely, will prevent the employee from performing labor functions and can even harm both himself and others - his boss is responsible for this. An order (instruction) is drawn up on the removal. The employee's refusal to sign this document does not affect its validity, it comes into force regardless of his desires. Refusal simply needs to be fixed by drawing up an appropriate act.
Draw up an act on the appearance of an employee in an inappropriate form. The form is free, you can download ready-made samples. Be sure to prescribe, in addition to the standard details, signs that prove the fact of intoxication. You should specify the time frame for suspension from work, information about the direction to the medical. inspection. The document needs to be given attention, it will be the main basis (in addition to the opinion of doctors) if you have to defend your decision in court.
Medical examination. It should be carried out according to the letter of the law - exactly as described above.
Demand an explanation from a sober employee. It is not always possible to get it from a fined employee, but it is desirable. Dismissal for appearing 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.
Dismissal order - it is prepared according to the rules indicated below. The term is a 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, an act is drawn up.
Entry in the workbook. HR knows how important accuracy is here. The wording may be different, but it must include the reason and the mention of Art. - “subparagraph “b” of paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation”. No cuts.
Attention! All acts or refusals of the employee to familiarize themselves with them must have at least three signatures: the signature of the boss and two witnesses (indicating their positions).
On the day of dismissal, a book is issued, other necessary documents, the final payment is made in accordance with the law - here the procedure is general, 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 fired. The reason is described as briefly as possible, but without abbreviated words. Be sure to refer to Art. TC. This entry is similar to an entry in a work book. Differences are prohibited.

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

Details of the head, signatures: head, dismissed.

Conclusions: dismissals for “unseemly” reasons are one of the most difficult moments for a personnel worker. It is necessary to comply with all the points prescribed in the 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 act will act as confirmation, it is important to enlist the support of several witnesses.

Hello! In this article we will talk about the dismissal of an employee for drunkenness.

Today you will learn:

What is the procedure for dismissal for drunkenness;
At what time can not be fired for this;
How to fix the fact of intoxication.

If an employee is in a state of intoxication 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. Let's talk today about how to do everything right and avoid going to court by a negligent employee.

Peculiarities

The issue of the dismissal of underage employees caught consuming alcohol is resolved with the participation of the Commission on Juvenile Affairs.

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

Registration of dismissal

If the manager decides to terminate the employment contract, an appropriate order must be issued. There is nothing difficult in its preparation, the main difficulty is one - to familiarize with it the employee who will be fired against signature.

The order is entered in 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. Amounts that have been 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 judiciary.

How proportionate is the misdemeanor and penalty

Judicial authorities do not always consider dismissal as a proportionate punishment for appearing at work in a state of intoxication. Therefore, the employer must not only take explanations from the employee, but also take into account what his behavior was before the misconduct, how he treated the work as a whole, and only then make a decision.

Consider 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 cause 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 be a defendant in court later. Be sure to consider the characteristics of the employee when making a decision.

How to avoid getting fired for drunkenness

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

Discuss the possibility of imposing another penalty at the discretion of the employer;
Quit of your own free will.

Even in the case when 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 make another penalty, for example, deprive bonuses by a certain%.

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 contest a dismissal

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

When applying to the court, the dismissed employee attaches copies of the documents drawn up by the employer, as well as present the testimony of witnesses who will confirm his case.

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 for this.

In practice, most often a memorandum is drawn up, which explains that a particular employee is in a state of intoxication (indicating the full name and position of the violator of discipline), indicates the place, time and date of the event, and also briefly describes the signs of intoxication and the circumstances under which this fact.

Moscow In connection with the appearance of the manager of the marketing service Peshkov Alexander Sergeevich at work in a state of intoxication, I ORDER: to remove the manager of the marketing service Peshkov A.S. from work to sobering up. Reason: Act on the appearance of an employee at work in a state of intoxication dated 08/09/2011 b / n.

How to prove that an employee is drunk if he refuses to be examined

True, the employee may refuse to sign anything. In this case, you can put a mark on the employee’s refusal to familiarize himself with the act itself, with which the employee refuses to familiarize himself, or draw up an additional act on the employee’s refusal to familiarize himself with the drawn up act. Here, as they say, a matter of taste.

What acts are to be drawn up?
First, an act on the refusal of an employee to undergo a medical examination.
Secondly, the act, which should reflect the circumstances and signs that give reason to assume that the employee is in a state of intoxication. To do this, it is desirable to describe in detail the behavior of the employee, his ability to move (impaired coordination of movements, for example, unsteady, uneven gait), to speak (for example, incoherent speech), the presence of alcohol breath, aggressive behavior, obscene language, etc. The more signs of alcohol intoxication recorded, the better!

What to do if a drunk employee in the workplace caused bodily injury

Hello! if you were sent for an examination, then pass it or not, it's up to you, but without it, you will not be able to prove the fact of physical violence against you. and this is the decisive moment in this matter. that is, it is better to pass. at the expense of punishing a bully, it all depends on the severity of the harm caused to you. which will be established by this very examination

In accordance with Art. 115 of the Criminal Code of the Russian Federation, intentional infliction of minor bodily harm that caused a short-term health disorder or a slight permanent loss of general ability to work - four hundred and eighty hours, or by corrective labor for a term of up to one year, or by arrest for a term of up to four months.

Drunk employee in the workplace what to do

The main thing is not to despair. As judicial practice shows, the absence of a medical certificate is not an obstacle to the dismissal of an employee under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation. So, in paragraph 42 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it is said that in the absence of a medical examination, the employer must pay special attention to other evidence. They may be:
- an act on the appearance of an employee at the workplace in a state of intoxication;
- an order to remove from work;
- recordings of video surveillance cameras; ( if there)
- testimonies of witnesses and security services. ( if there)

You can go the other way. For example, call an ambulance. Some of the ambulances in which examinations are carried out are mobile medical laboratories. Please note that the devices used for research must be certified.

An employee in a state of intoxication at the workplace: what to do

The legislator has not developed a single unified form of a document by which an employee in a state of intoxication (alcoholic or other toxic) is suspended from work. In practice, most often a memorandum is drawn up, which explains that a particular employee is in a state of intoxication (indicating the full name and position of the violator of discipline), indicates the place, time and date of the event, and also briefly describes the signs of intoxication and the circumstances under which this fact. Not only the direct supervisor of the employee has the right to draw up such a note (although, as a rule, it is he who first encounters a violation and is forced to take action), but also other employees of the organization, for example, HR specialists or colleagues of the violator who witnessed the incident.

The presence at the workplace of an employee in a state of intoxication (alcohol, drugs or otherwise) is a serious disciplinary act, the consequences of which can be the most deplorable, especially when it comes to working with sources of increased danger. The victims of the unpredictable behavior of a drunk person can be his colleagues, clients or himself, therefore, the employer is obliged, in accordance with Article 76 of the Labor Code of the Russian Federation, to remove the employee from performing work duties. And in order to prove the legitimacy of the suspension, it is necessary to conduct an examination for the state of intoxication.

Step-by-step procedure for dismissal for drunkenness

An order for dismissal for drunkenness is drawn up. In fact, this is an order to terminate the TD (employment contract) with an employee. This document must comply with the unified form under the number T-8 or T-8a.
In a special journal for registering orders related to personnel, this order is registered.
A settlement note must be drawn up upon termination of an existing (labor) contract. This document must comply with the T-61 form. On the day of dismissal for drunkenness, a settlement is made with the employee. He is paid earnings, if he was not on vacation this year, then compensation for unused vacation must be paid, and other payments may also be made.
Before dismissing an employee, he needs to give an order to dismiss him for review. After familiarization, he must put his autograph. If a person refuses to do this, then a note is made on the order about his refusal. It is recommended to draw up an act stating that the employee refused to read the order. This act must be signed by two witnesses and the compiler of the document.
A record of dismissal is made in the employee's personal card. The entry must comply with the T-2 form and be certified by the signature of the employee of the personnel department and the signature of the dismissed person. If he turns out to put his signature, then a corresponding note is necessarily made on the card.

Conclusions about a person's condition are made not only on the basis of an assessment of his behavior, neurological reactions and autonomic disorders, but also on the basis of tests to determine alcohol in blood, urine and saliva. Such analyzes are carried out only by methods permitted by the Ministry of Health and Social Development of the Russian Federation.
In addition, indicator devices can be used to determine the concentration of ethanol in exhaled air.
The doctor conducting the examination must draw up a protocol in two copies. After that, the examined person must familiarize himself with the protocol and put his signature.
The refusal of the examination is also documented and signed by the person who refused to carry out the MO procedure, as well as by a medical worker. This extract from medical records can be used by the employer.
After the survey, the results of this procedure should be immediately announced.
The protocol of the Ministry of Defense is necessarily issued to people who brought an employee to the procedure while intoxicated. If there are no such accompanying persons, then the protocol is sent by mail to the specified address of the organization.

How to fire an employee for drunkenness

It's a good idea to ask the employee for a written explanation of their behavior when they sober up. Since dismissal due to drunkenness is a disciplinary sanction, it is the responsibility of the enterprise to demand an explanation from the employee in this case.

Since the dismissal due to the employee’s drunkenness is, in fact, a dismissal under the article, that is, for violation of labor discipline at the initiative of the employer, the dismissal procedure must be brought in accordance with the procedure for disciplinary dismissal. It is important to make sure that the violator of discipline is intoxicated not because of taking the medicines he needs (after all, as you know, some medicines can have side effects, including temporary clouding of consciousness and psyche). And also not because of the performance of direct labor functions (toxic intoxication due to gas vapors, or other work situations).

Caught a drunk worker what to do

In the event that an employee is found to be at the workplace in a drunken state, it is necessary to immediately notify the management. If the enterprise has a medical worker, his presence will be required to confirm the drunkenness of this person. The dismissal of an employee should take place after it is established that he is really drunk.

The most obvious proof - the medical examination - is no longer the only one. It is possible to confirm the fact that the employee is drunk, for example, by the testimony of witnesses or their written explanations. It is only necessary to arrange these documents in the appropriate way. Here's what the lawyers of the company "MKPTsN" advise to do: Therefore, in the event of a litigation, acts, memorandums or memos, etc. can be used.

Autonomous non-profit organization

As practice shows, such a sequence of actions is best.
Step 1. The immediate supervisor of the drunk employee or any colleague informs the head of the company or other official authorized to make decisions on personnel matters about the appearance of the employee in a state of intoxication. For example, an employee who has come to replace a drunk at his work post can also report this.
Target- inform the management of the company about the incident so that it appoints an internal investigation.
Step 2. The head of the company issues an order in any form to appoint a commission to conduct an internal investigation. It needs to fix the personal composition of the commission, which is instructed to conduct an internal investigation (as a rule, 3 people), and its powers.
The powers of the commission should include:
- identifying signs of intoxication in an employee;
- sending an employee for a medical examination;
- drawing up an act on his appearance in a state of intoxication;
— written request and receipt of written explanations from the employee;
- collection of testimonies of other employees - eyewitnesses of the incident.
Step 3 The commission sends the employee for a medical examination. In most cases, drunk workers refuse to undergo a medical examination. Unfortunately, it is impossible to force them to do this by law, because in the Labor Code of the Russian Federation there is no obligation for employees to undergo a medical examination in this case.
If the employee agrees, he can be sent for a medical examination (Clause 2 of the Temporary Instruction on the procedure for a medical examination to establish the fact of alcohol consumption and intoxication, approved by the USSR Ministry of Health on September 1, 1988 N 06-14 / 33-14 (hereinafter referred to as the Temporary Instruction)):
(or) to a narcological dispensary;
(or) to any medical institution where there is a psychiatrist-narcologist or a doctor of another specialty who has undergone special training (at the same time, no special license is required to conduct a medical narcological examination of a medical institution, which is also confirmed by the courts (Determination of the Moscow Regional Court dated 12/14/2010 in case N 33-24139)).
Moreover, doctors can conduct medical examinations both directly in these institutions themselves, and with departure in specially equipped cars.
Please note that medical examination is a paid procedure. The Labor Code of the Russian Federation does not directly say who pays for it in such a situation - the employer or the employee. But it is logical that if the employer sends the employee for a medical examination and the employee then turns out to be sober, then the company pays for this procedure. You can try to take this amount into account in other expenses (Subparagraph 49, paragraph 1, article 264 of the Tax Code of the Russian Federation). If the employee shows signs of intoxication, then the cost of a medical examination can be tried to recover from him as damage caused to the employer (Article 238 of the Labor Code of the Russian Federation).
During the medical examination, the doctor will draw up a protocol in the form N 155 / y (Approved by Order of the Ministry of Health of the USSR on 08.09.1988 N 694), which (Items 4, 6, 14 of the Temporary Instruction):
(or) will hand over to the person who delivered the employee to the medical facility.

We warn the head .
If a the dismissed employee will be reinstated by the court, then the company will have to pay him the average earnings for the entire time of forced absenteeism, and possibly also compensate for moral damage (Articles 234, 237 of the Labor Code of the Russian Federation).

What to do if an employee, drunk without examination, left his workplace

It is possible to recognize the absence of an employee as absenteeism only after establishing the fact of absenteeism: receiving written explanations from the employee himself, from which it can be concluded that the reasons for his absence are disrespectful, or drawing up an act of refusal to give explanations. Until the employer has received an explanation from the employee or has not drawn up an act of refusal to provide them, the employee retains his place of work, he is considered absent due to unexplained circumstances. During this period, it is impossible to dismiss an employee for absenteeism.

At the same time, the organization must pay the reinstated employee the time of forced absenteeism in the amount of average earnings (Article 394 of the Labor Code of the Russian Federation). Calculate it not from the first day of absence from work, but from the day the dismissal order is issued. Only from that time on, absenteeism is forced (paragraph 41 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

09 Aug 2018 972

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