If an employee came to work drunk. The procedure for dismissing an employee for appearing in a state of intoxication at the workplace

An employee came to work drunk

Full description:

Unfortunately, the problem of drunkenness of employees in the workplace is relevant for many employers. But suspending or firing such a would-be employee is not as easy as it might seem at first glance. The article will help to take into account the nuances of this difficult situation, as well as correctly draw up the necessary documents.

The morning of a working day, there is a lot of work ahead, and then it turns out that one of the employees, to put it mildly, is out of shape. The picture, alas, is not rare. What is the first thing an employer should do if an employee is at the workplace in a state of intoxication? First of all, prevent him from fulfilling his job duties. If the "poor health" of the employee became known after he started work, he must be removed from it.

Deny or remove?

First, let's look at the difference between the wording "not allowed to work" and "suspend from work", as well as how their interpretation affects further actions. If the administration found the employee has signs alcohol intoxication before the start of the working day and forbids him to start labor activity, it is about not being allowed to work. And in some industries, this moment is especially important. The fact is that officials can be brought to administrative or criminal liability if they allow an employee to perform work functions while intoxicated (Article 5.27 of the Code of Administrative Offenses of the Russian Federation or Article 143 of the Criminal Code of the Russian Federation). The same opinion is shared by the judges in the resolution of the Plenum of the Supreme Court of the RSFSR dated April 23, 1991 N 1 "On judicial practice in cases of violations of the rules of labor protection and safety of mining, construction and other works."

To avoid such problems, at high-risk enterprises (transport, energy, chemical, mining, etc.) it is necessary to carry out preventive inspections at the beginning of the working day. It is also possible to prevent a drunk employee from working if he was noticed in a similar state not at the workplace, but only on the territory of the enterprise, for example, at a checkpoint. In the case when the employee has already begun to perform labor duties and after that the administration noticed his condition, we are talking about the removal of the employee from work.

In any of these situations, the administration of the enterprise must correctly draw up documents. Otherwise, the employee may challenge the employer's decision to remove him from work in court.

In labor legislation, the concepts of "suspension from work" and "prevention from work" are synonymous. Therefore, for convenience, we will use only one of the terms. So, according to article 76 Labor Code suspension from work of an employee who appeared at work in a state of alcoholic, narcotic or other toxic intoxication is not only the right of the employer, but also his obligation. At the same time, the employee is suspended from work until all the circumstances that served as the basis for his removal are eliminated (part 2 of article 76 of the Labor Code of the Russian Federation).

The worker will remain unpaid.

We, the undersigned, are Chief Engineer

Stroyremtyazhmash LLC,

Inspector of Quality Control Department of Stroyremtyazhmash LLC,

and industrial cleaner

Stroyremtyazhmash LLC,

(name, position, place of work)

have drawn up this act as follows:

Electrician LLC "Stroiremtyazhmash",

(name, position, place of work)

appeared in a state of intoxication at the workplace

in the switchboard shop N 2

He was observed the following signs intoxication:

1) slow, fuzzy speech, accompanied by obscene words;

2) strong smell of alcohol from the mouth;

3) multiple loss of balance;

4) reddening of the face;

5) inability to hold instruments in hands, trembling of fingers;

6) inadequate behavior, expressed in aggressive actions against colleagues in the shop, loud performance of Russians folk songs trying to take off his overalls.

The fact of finding Ugryumov Sergey Kharitonovich

in a state of intoxication, confirm with a medical certificate

impossible because the employee refused to voluntarily undergo medical

examination.

The worker refused to give an explanation.

subject / not subject (underline as appropriate)

suspension from work until October 9, 2007.

Signatures of persons

1. Rapture

2. Cheerful

3. Smekhova

Refused to sign *

* If the employee refuses to sign the act after noting this, the drafters of the act sign again or draw up a separate document - an act of refusal to sign. - Note. ed.

Way out. As we can see, it is impossible to force a drunk employee to undergo a medical examination. You'll have to resort to tricks. One of the most common ways to fix the intoxication of an employee is to call an ambulance. Usually the administration of the enterprise calls the doctor, referring to bad feeling employee. For example, slurred speech or impaired consciousness can be signs of a stroke, not just alcohol intoxication. In this case, health workers will definitely come and record the condition of the employee, issue a certificate or a medical examination certificate.

The document is made in two copies. It provides detailed information about the emotional state of the employee, his behavior, speech, reactions. Be sure to note the presence or absence of the smell of alcohol. For a complete picture of the state of the employee, the act must contain the results laboratory research. They are mandatory during the inspection. But most often, the subject refuses to take tests and undergo other medical procedures. If it was not possible to persuade him, the fact of refusal will also be recorded in the act.

Signature of the employee in the medical report. Having issued the document, doctors should ask the employee to familiarize themselves with it and put their signature. Do not be afraid of the refusal or inability of the employee to sign the document. This circumstance may serve as additional proof that he is drunk.

If the employee is more accommodating, it is enough to accompany him to a medical facility, where a medical examination procedure will be carried out. But not every clinic is suitable for this. Pay attention to whether the medical institution has the right to conduct an examination of alcohol and drug intoxication.

Check it out as soon as possible!

If you want to conduct a medical examination of an employee, remember that alcohol has the ability to quickly "erode" from the body. The sooner you arrange for a medical examination of an employee, the less chance he will have to elude responsibility for his unreasonable behavior.

It is believed that the use of 0.5 liters. beer can be detected in the exhaled air only within 30 minutes after drinking, 0.2 l. port wine - within 3.5 hours, 0.1 l. vodka - within 3-4 hours.

Doctors' findings. According to the results of the examination, the doctor will make a conclusion. It will describe the status of the employee.

The employer needs to be prepared for the fact that even the results of a medical examination can be challenged by an employee in court. This applies primarily to situations where the survey was carried out in violation of established norms(for example, lack of laboratory research).

The result of the procedure - an order for suspension from work

The decision of the administration to remove an employee from work is formalized by order or order of the head of the company. There is no unified form of an order to remove an employee from work. It is composed in free form(see sample order on p. 87).

Dismissal of an employee

An employee who comes to work drunk may be subject to disciplinary action. Their list is given in article 192 of the Labor Code. In particular, the employee can be fired.

Dismissal in this case occurs at the initiative of the employer (clause 4 of article 77 of the Labor Code of the Russian Federation). An appropriate entry is made in the work book of the employee with reference to paragraph 6 of Article 81 of the Labor Code. Such a rule is indicated in paragraph 5.3 of the Instructions for filling out work books, approved by the Decree of the Ministry of Labor of Russia dated 01.01.2001 N 69.

The day of termination of the employment contract will be the last day of the employee's work (part 3 of article 84.1 of the Labor Code of the Russian Federation). It does not matter whether he was suspended from work or not. Such explanations are given in Part 1 of Clause 42 of the Decree of the Plenum of the Supreme Court of the Russian Federation of January 1, 2001 N 2 "On the application by courts Russian Federation Labor Code of the Russian Federation". That is, you cannot dismiss an employee on the date preceding the day when he was suspended from work.

Overlay procedure disciplinary action set out in Article 193 of the Labor Code. In accordance with part 3 of this article, a disciplinary sanction is applied no later than one month from the day the misconduct was discovered. At the same time, neither the time of illness of the employee, nor the period of his stay on vacation are taken into account.

Also, article 193 of the Labor Code requires written explanations from the employee before applying a disciplinary sanction to him. Not having received it, it is necessary to draw up an act (part 1 of article 193 of the Labor Code of the Russian Federation). After the dismissal order is issued, the employee must be familiarized with it within the next three days. Uniform form of a cease and desist order employment contract with an employee (N T-8) was approved by the Decree of the State Statistics Committee of Russia dated 01.01.2001 N 1. If the employee does not want to delve into the document and refuses to sign it, it is also necessary to draw up an act of refusal in accordance with part 6 of article 193 of the Labor Code.

Sample order to dismiss an employee from work

Stroyremtyazhmash LLC

(name of company)

Order N 562-k

Ugryumov Sergey Kharitonovich

(position, full name)

Cause: Showing up at work while intoxicated.

Base:

Memorandum of chief engineer;

The act of establishing the fact of the appearance at work of an employee in a state of intoxication caused by the use of alcohol, drugs or other toxic substances, dated 01.01.2001;

The act of refusal to give explanations.

CEO

Stroyremtyazhmash LLC ___________

Acquainted with the order:

Application: act of refusal to sign the order.

senior scientific editor of the journal "Salary"

You can only be fired for appearing drunk at work: finding an employee in such a state outside of work, albeit in working time, does not give reasons for dismissal on the grounds in question. 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 workplace 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 (JSC) 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).

Considering this requirement 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. Salon of a train, aircraft and other vehicle cannot be attributed to the workplace, and the travel time cannot be attributed to 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 the 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 came into force new order medical examination to determine the fact of intoxication (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 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 clause 3 of the procedure, it can only be carried out by organizations with a license for medical practice, which includes, among other things, the service of examination for intoxication. A conclusion issued by a medical institution without an appropriate license will not be accepted by the court as evidence of the legality of the dismissal of an employee.

If the employee agrees to the procedure, he is given a referral (subclause 5, clause 5 of the 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 examination external signs intoxication, recorded by the employer in the act, may disappear and, as a result, be absent in the conclusion of doctors. Available arbitrage 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, JSC Primorsky Regional Court dated 07/09/2015 in the case No. 33-5668). Note that this confirms the need in all cases for the speedy preparation of an act with detailed description employee and his condition.

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 violator to work, then liability for possible Negative consequences(damage to property, injury) falls on 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 an explanation is requested immediately after the discovery of a drunk at work, the court may see a violation, indicating that the intoxication of the employee 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 that is the disciplinary action. 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 guilty 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.

Drunkenness in the workplace is punishable by dismissal. The employer has the right to dismiss the employee after one violation (clause 6 of article 81 of the Labor Code of the Russian Federation). The appearance of a drunk worker among machines and mechanisms is a direct threat to the life and health of not only the violator himself, but also the entire team, and technological process. Such an employee is threatened with dismissal for drunkenness. The step-by-step procedure includes several steps.

When can a drunkenness investigation be held?

Being drunk at work is considered a gross violation. labor discipline. It is enough to come to work drunk once, so that this time will be the first and last. The fate of the employee in such cases is decided by the manager, since the Labor Code leaves the employer with the right to make the final decision.

The head chooses the measure of punishment based on the specific situation, the personal characteristics of the offender and the fact whether it was possible to fix, as required by the rules, the fact of the violation. If for some reason the employer did not have time to document the misconduct, it is better not to dismiss the employee.

It is necessary to start official proceedings only if the violation occurred at work. This means:

The violator was exactly at the workplace (checkpoint, shop area, etc.)
The perpetrator was drunk while on duty. These are the working hours of the employee himself, and not just the entire organization.
A violation recorded at the workplace on the day of day off, vacation, sick leave is not considered committed at work.

If it is confirmed that there is an employee at work in a state of intoxication, this should be documented.

How to fix the state of intoxication correctly

Dismissal for drunkenness in the workplace must be issued in accordance with all the rules. For a biased approach to the application of the most stringent disciplinary measure, the employer may be held accountable, and the dismissed person may be reinstated.

In order to correctly qualify the violation, the employer must, in the course of an internal investigation, obtain confirmation of the state of intoxication by a medical examination or other evidence. By law, you cannot force an employee to undergo a medical examination. If the examination is refused, an act must be drawn up, which in the future, if the dismissed person goes to court, will become an additional argument in favor of the employer.

Interesting Facts

You need to know that not all employees can be fired for drunkenness or drug use. Some categories of workers have benefits in this matter as well. In particular, according to Article 269 of the Labor Code, it is possible to dismiss a worker under 18 years of age for such actions only with the consent of the guardianship authority or the Labor Inspectorate. It is possible to fire a pregnant employee, but only if there is evidence of her intoxication, and not the use of alcohol-containing medicines.

The actions of the employer are only legal if he reasonably states the state of the employee as being drunk, admitted at work and not the result of a deterioration in health (for example, increased pressure, medication, etc.). If the requirements of the law are taken into account during the internal investigation, then, based on its results, the employee may be punished accordingly. In the event of further proceedings, the court will not be able to convict the employer of illegal actions and cancel the dismissal order.

Step-by-step procedure for filing a dismissal

If the employer intends to apply the most severe measure to the violator of labor discipline and dismiss him for drinking at the workplace (clause 6, part 1, article 81 of the Labor Code of the Russian Federation), he must act in accordance with the procedure established by the legislator (Article 193 of the Labor Code of the Russian Federation).

Step 1. The immediate supervisor of the violator informs the superior employee about the alleged condition of the employee.

Step 2. By order of the head, a commission of 3 people is appointed to conduct an internal investigation.

If the commission finds outward signs of intoxication in an employee, he is asked to undergo a medical examination. If the employee refuses to pass, the refusal is recorded with the help of an act signed by members of the commission and witnesses from among the employees.

In practice, a drunk worker is limited to only drinking alcohol in the workplace. But sometimes in such a state, thefts in the organization or insulting other employees of the company can be committed.

In such a situation, the presence of insults will be recorded in the act, which can become a justification not only for dismissal, but also for bringing to administrative responsibility under Article 5.61 of the Code of Administrative Offenses of the Russian Federation.

If there was a theft of property, then criminal punishment under Article 158 of the Criminal Code of the Russian Federation will also be applied. An organization can file a claim for criminal prosecution and damages no later than one year.

Step 3. The employee is suspended from work, he is given 2 days to give a written explanation. Suspension from work is carried out by order. The employee must put his signature on familiarization with the order. If he refuses to do this, without drawing up an additional act of refusal, right on the order, make the necessary note and put the signatures of two witnesses.

Step 4. An act is drawn up in any form about being at work in a state of intoxication. The act reflects:

time and place of compilation;
personal data of commission members;
signs, according to which a conclusion was made about the state of alcoholic intoxication: the smell of alcohol, speech disorders, instability of posture, reddening of the face, agitated state, inadequate behavior.

Members of the commission must, as carefully as possible, indicate in the act all the signs that took place at the time the act was drawn up.

If after the time prescribed by law (2 days) there is no written explanation of the misconduct, an act is also drawn up.

When all the evidence confirming the fact of being drunk at the workplace is collected, the question of how to dismiss an employee for alcohol intoxication can be considered resolved: the employer has the right to issue an order to dismiss the violator. As a rule, the manager takes this extreme measure, unless there are extenuating circumstances. They can be, for example, the following:

the employee has never had a penalty;
has been with the organization for a long time;
there were no serious consequences for production caused by misconduct.

Some facts

The permissible amount of alcohol in the blood may also be available when taking medications or certain foods, for example, kvass, kefir or whey. Essentially not a large number of ppm in the blood can justify the need to be removed from work only in case of poor health, but will not be a reason for dismissal and return of the money spent on the examination.

Considering all the factors, the employer may limit himself to reprimanding. In any case, an order is drawn up no later than one month from the date of discovery of the misconduct.

An order to impose a disciplinary sanction in the form of a reprimand is drawn up in any form. The order of dismissal - in the form of T-8.

An entry must be made in the work book of the employee indicating the reason for the dismissal and a reference to the article of the Labor Code of the Russian Federation. The dismissal order is recorded in the register of orders. After the order is issued, no later than 3 days from the date of its writing, the dismissed art. 193 of the Labor Code of the Russian Federation).

Full settlement with the employee is made on the day of dismissal. He is paid a salary for the time actually worked, vacation compensation, if required.

Conclusion

The dismissal of an employee in a state of intoxication must be executed in the manner prescribed by law. As a rule, an employee fired under such a reputation-staining article will look for the slightest inaccuracy in the actions of the employer in order to prove the illegality of the dismissal and cancel the article.

If the court finds the dismissal illegal, the employer will have to pay wages for the entire time forced absenteeism, compensate for non-pecuniary damage, change the grounds for dismissal.

If the medical examination was done at the enterprise, methods and methods of examination permitted by the Ministry of Health and Social Development of the Russian Federation should be used. Otherwise, the court does not recognize the issued conclusion as evidence and may recognize the dismissal as illegal with all the ensuing consequences.

To get a lawyer's comment - ask questions below

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 backfire These 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: someone's health or life is not too high 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". Difficult speech, swaying gait and the smell of alcohol can be explained by illness, stress, certain medicines. To convict an employee of drunkenness, everything must be documented.

The procedure may vary from company to company, but in general terms comes down to this:

Information about an allegedly intoxicated employee should go to his immediate supervisor.
A commission is formed and an official investigation begins.
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.
A drunk employee may be required to write an explanatory note. If this happens, the document is attached to the act.
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.
In case of consent, the employee undergoes a medical examination. This is a paid procedure, the costs are covered by the employer. If the fault of the employee is confirmed, then the funds spent will most likely be later deducted from wages or charged 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.

You can't just get fired for drunkenness in the workplace underage worker or a pregnant woman. In such situations, the employer must labor inspection and (if necessary) a juvenile commission.

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?

Most of the leaders 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 just a terrible state of health, in the most severe cases maybe even death. 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? Finding difficulties new work, 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 only accept the 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.

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 certificate of examination reflects that the employee refused to take tests, then from the moment of receipt of the specified certificate individual entrepreneur it must be understood 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 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 another way - call 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, presence of 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 state 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. The text of the order should indicate the grounds for dismissal - 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 dismissal of the employee there and asking him to sign on the fourth page of the card (see Example 6).