Dismissal for showing up to work while intoxicated

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General provisions on dismissal for appearing at work while intoxicated

How is Article 81 of the Labor Code applied upon dismissal?

Dismissal for drunkenness in the workplace: step-by-step instructions

Detection of the fact that an employee appears drunk at work and recording this fact

Removal of an employee from service

Requirement for the employee to provide written explanations

Registration of dismissal according to the Labor Code of the Russian Federation

Results

Detection of intoxication

How to fire someone for drunkenness? The procedure for dismissal for drunkenness in the workplace begins with recording the fact of alcohol intoxication. It is necessary to prove that the employee was actually drunk while performing work.

To record the fact that a person is in an inappropriate condition at the workplace during working hours, it is necessary to draw up a report.

This document is drawn up without details, since its purpose is only to convey to management information that an employee at the enterprise is in an inadequate condition.

The management, in turn, imposes a resolution on this document, which indicates the creation of a commission of investigation and further measures, if it has not been created here earlier and is not working on a permanent basis.

In what cases is it possible?

Dismissal under the article of alcohol intoxication in the workplace or within the employer's territory is possible only if it happened during his working hours.

IMPORTANT: Dismissal for drunkenness is impossible if it happened after the end of the shift or before it began at the enterprise. This can only become a reason for a reprimand or temporary removal from duties. Thus, dismissal for showing up to work while intoxicated is not carried out!

Dismissal for drunkenness: step-by-step procedure

So, how to fire an employee for drinking in the workplace? You can be fired for drunkenness in the workplace from the moment an employee is found to be inappropriate during his work shift. To do this, it is necessary to carry out a number of procedures to register this fact:

Before filling out a violation report, you must make sure that the employee is actually in the state in which he is suspected.

To eliminate the possibility of error, it is necessary to involve a couple of people who will witness the incident.

These may be employees of other departments, but it is optimal to involve a lawyer and an employee of the labor protection department for help. Clause b, part 6, 81 of the article for drunkenness in the workplace provides that the employee must first be suspended from work. This is required by Article 76 of the Labor Code.

Also, the article for drunkenness at work states that if the employee is not suspended in a timely manner, all consequences arising for this reason during the performance of his job duties will be borne by the employer.

Therefore, this procedure should be carried out by formalizing it with an appropriate order from the head of the department or the organization as a whole. You need to write a report about the employee being drunk at the workplace. The creation of such a document is necessary to further prove the legality of dismissal in court.

When dismissal under an article for drunkenness, it is very important to write down all subsequent points in the act.

• Name of the organization.
• Time, date of document preparation. Where was it issued?
• Full name of the employee through whose fault all procedures are carried out.
• Positions and names of witnesses who confirm the fact of the employee’s condition.
• Full name and position of the person drawing up the act.

Description of all external symptoms indicating the presence of intoxication of the employee: the smell of alcohol, obscene speech, awkward movements, redness of the skin, resistance when registering a violation.

Sample report on an employee being drunk at work. It is necessary that in the act the person responsible for the incident writes in his own hand an explanation about the current situation.

If the employee does not want to give an explanation, this must also be indicated in a separate paragraph. Sending an employee for examination to a medical institution must be carried out exactly in accordance with the rules prescribed in the relevant instructions.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

Such an examination is considered legal only if it is carried out by narcologists in specialized drug dispensaries or when specially trained doctors of other profiles visit medical equipment. vehicle inspections.

Payment for travel to the venue and the procedure itself is carried out at the expense of the initiator of clarifying the situation, that is, the employer.

The sooner the employee is sent to medical care. examination, the greater the likelihood of confirming the fact of a violation, since after several hours from the moment the paperwork begins, alcohol in the blood may no longer be detected. The employee will have to write an explanation when reporting to work in a sober state.

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This document is mandatory for the legality of imposing an official penalty. In addition, this will confirm the recognition of the fact of intoxication and the consent of the offender himself.

If the employee is not going to write an explanation regarding the situation that has arisen, it is necessary to draw up an act indicating the refusal, signed by 2 witnesses and the boss.

Since the law gives the employee 2 days to submit a report on the situation, the refusal act should be drawn up not at the moment when the employee indicated that he will not write an explanatory note, but after two days from that moment. Documents are drawn up regarding dismissal for drunkenness. The fact of issuing an order to dismiss an employee must be communicated to him within 3 days. It is necessary to obtain the signature of the dismissed person and give him a copy of the document.

An order for dismissal under the drunkenness clause must be drawn up in Form T-8. All documents that took place during the investigation must be referred to in a separate paragraph of the order “Bases”.

If the offer to sign the order is refused, an act is drawn up, which will be signed by the chief and two third-party (from other departments) persons.

All of the above actions must be carried out no later than one month after the violation is discovered. If the decision of a manager to dismiss, formalized as an order, is not made within the approved period, it will not be possible to dismiss the employee. It is necessary to make an entry in the work book about dismissal for being in an unauthorized state at the workplace.

An employee dismissed due to being drunk at work receives the following payments:

• wage;
• vacation days he did not use.

An employee is not entitled to compensation and other payments such as severance pay upon dismissal for drunkenness in the workplace.

Dismissal for alcohol intoxication can occur if it happens even once.

To know how to fire an employee for alcohol intoxication, it is important to correctly draw up all the documents, providing the necessary evidence and confirmation of witnesses, since it is impossible to exclude the possibility of challenging this wording of dismissal by an employee through the court.

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How to challenge dismissal

If the employer violated the dismissal procedure or the employee himself believes that the relationship with him was terminated illegally, he can file an appeal. To do this, you must go to court at the location of the employer.

Important! In Art. 392 of the Labor Code of the Russian Federation states that the statute of limitations for resolving disputes regarding dismissal is 1 month from the date of receipt of a copy of the order or delivery of the work book. So we need to hurry up.

To challenge the illegal termination of an employment contract, it is necessary to draw up a statement of claim and attach all available documents to it. It is recommended that you contact a lawyer. A properly drafted claim is half the success of the case. If the application is drawn up incorrectly, the court will not accept it for consideration. Precious time will be lost.

The claim is drawn up in accordance with Art. 130 Code of Civil Procedure of the Russian Federation. It must contain the following information:

• about the judicial authority to which the claim is filed;
• information about the plaintiff – full name, passport data, residence address, contact information;
• information about the employer - full name, full name and position of the manager. This is the defendant;
• "body" of the claim. Here it is necessary to indicate the facts that led the plaintiff to go to court. It is necessary to provide reliable information about what happened, describe the events in chronological order;
• state your requirements. The plaintiff may demand reinstatement from the employer. Payment of wages for forced absence and compensation for moral damage;
• application. These are documents confirming the stated facts. This is an order for employment, an order for dismissal, copies of medical documentation, acts, an employment contract, etc. If the plaintiff demands compensation for wages and moral damage, a certificate of earnings and independent calculation.

The claim is drawn up in 2 copies. One of them is sent to the employer. Within 5 days, the court must make a decision to accept the application for consideration.

If the judicial authority finds the dismissal illegal, the employer must restore the employee to his previous job on the same day.

How to fire an employee for being under the influence of alcohol and drugs at work?

Being at work in this state is a violation of labor discipline. If the employer can document the fact of a disciplinary violation, he has the right to dismiss both the drunk employee and the drug addict on his own initiative.

Termination of the contract is carried out in accordance with paragraph “b” of Part 6 of Art. 81 of the Labor Code of the Russian Federation - however, it is permissible even for a one-time offense. Dismissal on this basis is possible if a violation is discovered during the employee’s tenure at work. In this case, the employer is obliged to remove him from performing his job duties in accordance with Art. 76 Labor Code of the Russian Federation.

By decision of the management, the following punishment may be applied to the offender:

Dismissal for being drunk at work is unacceptable in relation to:

• pregnant women;
• persons taking alcohol-containing drugs as prescribed by a doctor - confirmation is a certificate, an extract from the medical record, etc.;
• employees whose intoxication is caused by production factors - for example, exposure to chemical or biological substances in violation of labor protection rules, emergency situations.

Procedure: step-by-step instructions for the procedure

In legal practice, a significant proportion of those fired for being drunk at work try to challenge the legality of the procedure in court.

In this case, the employee is reinstated in his position with compensation for forced absence. Additionally, the employee has the right to demand compensation for moral damage.

Termination of employment relations for appearing at work while intoxicated is carried out in the following sequence:

1. Establishing the fact that a drunk employee was in the workplace. This can be detected not only by management, but also by other employees and third parties (clients).
2. Recording the offense in documents.
3. Removal of an employee from work.
4. Submitting a request to the employee to provide a written explanation.
5. Registration of dismissal.

A person who discovers that an employee is drunk writes a memo addressed to the manager - it is of a notification nature. Next, a commission is created to investigate and take action consisting of 3 or more people (personnel department employee, security service, boss, and so on).

If there is no doubt about the drunken state of an employee at the workplace, a report is drawn up. There is no unified form of the document, so it is compiled arbitrarily. It lists:

If the employee has not been suspended from work, he can still be fired. But at the same time, there is a high risk of negative consequences from leaving him at work:

• failure to fulfill duties;
• causing harm to property, other employees, etc.

Signs of the effects of alcohol on the body that can be indicated in the report include:

• characteristic smell;
• body instability, unsteadiness of gait;
• incoherent, confused speech;
• tremor (shaking) of hands;
• redness of the skin on the face;
• inappropriate behavior;
• creating interference with work activities;
• positive breath test for alcohol - a special tester can be used.

Signs of drug intoxication:

• swelling of the eyes, narrow or dilated pupils, shine, poor reaction to light;
• changes in skin color on the face, in advanced cases - jaundice, swelling;
• overly expressive or inhibited speech, unreasonable laughter, emotionality or depression;
• impaired coordination of movements;
• changes in consciousness of varying depths.

The listed signs may indicate not only alcohol or drug intoxication, but also be symptoms of diseases and the use of alcohol-containing drugs.

To officially confirm or refute the fact of a violation, the employer invites the employee to undergo a medical examination to determine the presence of alcohol or drugs in the body. If the employee refuses, this is reflected in the act. The employee should take into account that denial of the procedure serves as significant indirect evidence of misconduct.

To undergo a medical examination, you will need a referral from the employer (Order of the Ministry of Health of the Russian Federation No. 933n dated December 18, 2015). The paper is compiled arbitrarily, there is no unified form. The procedure is carried out in any licensed medical organization. If desired, the employee has the right to choose the institution himself.

An authorized person from the enterprise ensures that the person is transported to the hospital within 2 hours after establishing the fact of intoxication. All manipulations are paid for by the employer, but if the employee’s guilt is proven, the damage incurred can be recovered from him (Article 238 of the Labor Code of the Russian Federation).

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

Intoxication is considered to be a concentration of alcohol in the blood equal to half a ppm, which is equivalent to 75 g of vodka or 1 bottle of beer weighing about 80 kg. Determination of narcotic substances in the blood in any amount is a violation.

If you disagree with the result, the employee has the right to re-conduct the examination in another organization.

The employer is recommended to stock up on the maximum evidence base for a disciplinary violation; it may be useful in the event of challenging dismissal in court: memos, witness statements, medical reports, video camera recordings, etc.

An important stage of the dismissal procedure is a written requirement for the employee to submit an explanatory statement before imposing a disciplinary sanction (in this case, before dismissal). The employee must describe the incident, indicate the reason and describe the details of the offense.

It is permissible to complete the paperwork later if the person is not able to do it right away. The employee is given 2 days to write. If you refuse to draw up an explanatory statement about this, an act is again drawn up, certified by 3 witnesses.

After starting the dismissal procedure, the personnel service generates an order indicating the reason for termination of the contract. The employee should be familiarized with it and signed within 3 days after drawing up the document. If a document is refused to be endorsed, an act signed by 3 witnesses is drawn up.

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A corresponding entry is made in the work book. A settlement is made with the employee, and the necessary documents are given to him. Payments include wages for the period worked and compensation for unused vacation.

If an employee does not want to be dismissed under the article, he can try to negotiate with the management of the enterprise to terminate the contract at his own request or by agreement of the parties. It is beneficial for the employer to agree to this, since the dismissal procedure in this case is simplified. It is extremely difficult to challenge dismissal at the initiative of an employee in court.

Termination of the contract at will is carried out according to the standard scheme, triggered on the basis of an application from the employee. In this case, the employer has the right to demand work off. Next, an order is formed, on the last working day a settlement is made with the employee, the necessary documents are issued to the dismissed person - a work book, certificates of salary and paid contributions.

Dismissal by agreement of the parties is carried out in a similar way, but an application from the employee is not required. The management of the enterprise and the employee enter into an agreement on the conditions for terminating the employment relationship, and each party signs it.

In these cases, the order and work book do not indicate the true reason for termination of the contract, which is beneficial to the employee in future employment. The wording is standard: dismissed at his own request or by agreement of the parties.

How to properly formalize termination of a contract due to drunkenness?

It should set out in detail the circumstances of the incident - incomplete information will cause the dismissal to be declared illegal. In addition to signs of intoxication, the document must specify the timing of the employee’s removal from work.

If the employee does not agree to sign the act, another one is additionally drawn up stating that the employee has read the act and refused to sign it. It is compiled arbitrarily. The descriptive part indicates that the employee is familiar with the contents of the document (act number and title), it was read aloud to him in the presence of witnesses, but he refused to sign.

• If the employee agrees to undergo a medical examination, management issues him a referral.
• If an employee refuses to be examined, a clause about this is included in the intoxication report or in a separate report.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

Based on the results of the examination, a report is drawn up in a medical organization. If the conclusion is positive (presence of alcohol, drug, or toxic intoxication), the document becomes a strong confirmation of the grounds for dismissal and removal of the employee from work.

The inadmissibility to perform labor duties is recorded in the order, which the employee must be familiarized with and signed. If a document is refused to be endorsed, a corresponding act is drawn up.

The employer must formally request the employee to provide explanations. It is written in free form, 2 days are given for this. The manager asks the employee to explain why he was drunk at work. This is done in case the intoxication was caused by a valid reason (for example, the use of medications).

The explanatory note is drawn up randomly with a detailed description of the circumstances of the incident. If you refuse to provide an explanation, a report about this is drawn up.

If there is a trade union in the organization, the opinion of this body must be taken into account.

The final stage of registering an employee’s dismissal is making an appropriate entry in the employee’s personal card and work book. Next, a settlement is made with the employee, and he is given the necessary documents and certificates.

Entry in the work book: which article is included when registering?

If an agreement is not reached between the employer and employee on dismissal at their own request or with the consent of the parties, the contract is terminated under the article for a disciplinary violation.

The work book indicates the reason with reference to the legislative act : “Dismissed due to appearing at work while intoxicated, subparagraph “b” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation.”

The grounds for termination of the contract in the work book and the order must match.

If an employee refuses to have a paper work record book and agrees to keep it only electronically, he or she will not have to hand out a work record book. Information about dismissal and its reason is included in information about the employee’s work activity and transferred to the Pension Fund.

Sample entry in the work book about dismissal under the article for drunkenness:

Detection of the fact that an employee appears drunk at work and recording this fact

So, it was discovered that the employee was drunk and came to work in this state.

Signs of intoxication are:

1. The presence of the smell of alcohol on the breath.
2. Change in skin color.
3. Inappropriate behavior.
4. Unsteady gait.

After discovery, it is necessary to draw up a report. The law does not provide for the form of this document; accordingly, it is drawn up in any form.

It is recommended to include the following information:

1. Position, full name an employee who came to work drunk.
2. Information about who discovered the drunk employee.
3. Signs of intoxication.
4. Information that the employee was asked to undergo a medical examination.
5. Information about suspension from work.
6. Information about witnesses.

Sample report on discovering a drunk employee at work

LLC "Iris"

Act No. 1

About the appearance of employee I. I. Ivanov in a state of intoxication at the workplace

21.06.2019

Moscow

On June 21, 2020 at 10:00 a.m., sales manager Petrov P.P. noticed that salesman Ivanov I.I. was intoxicated at work. Later, at about 10:10 a.m., sales manager S.S. Sidorov also noticed this. Ivanov I.I.’s signs of intoxication are as follows:

1. Unsteady gait.
2. Incoherent speech.
3. Pungent odor of alcohol from the mouth.

Ivanov I.I. refused to undergo a medical examination without providing the reason for the refusal.

Taking into account the above, Ivanov I.I. should be removed from work by virtue of paragraph. 2 part 1, part 2 art. 76 of the Labor Code of the Russian Federation for a period of up to 17 hours 30 minutes on June 21, 2020.

Applications:

1. Memo dated June 21, 2020 from Petrov P.P.
2. Memo dated June 21, 2020 from Sidorov S.S.

Sales Manager Petrov P. P. /Petrov/

Sales Manager Sidorov S. S. /Sidorov/

Chief seller Suvorov V. Yu. /Suvorov/

The act was reviewed by: Ivanov I. I. /Ivanov/

If the employee does not want to sign the act, it is necessary to draw up another act - about refusal to sign the act on the employee appearing in a state of intoxication at the workplace.

The principle of its preparation is the same as mentioned above, however, in the descriptive part it is necessary to indicate that the employee was asked to sign the act, but he refused to do so, which was confirmed by witnesses (at least three people).

Medical examination

The employer is obliged to offer the employee to undergo a medical examination to establish the fact that he is intoxicated. It is worth noting that you can be fired not for drinking alcohol at work, but only for being a drunk employee at work. For example, if it is established that an employee on duty drank a sip of beer, then it is unlikely that he became intoxicated. In this case, he cannot be fired.

If the employee agrees to undergo a medical examination, the employer issues a referral to any licensed medical organization (clause 5 of the Procedure approved by Order of the Ministry of Health of Russia dated December 18, 2015 No. 933n). The document is drawn up in any form, for example, as follows:

LLC "Iris"

OGRN 1231241241, INN 13498104124, KPP 123019840,

address: Moscow, st. Sidorova, 12

To the State Budgetary Institution

Healthcare of the city of Moscow "City Hospital No. 5", Moscow, st. Kraeva, 1

June 21, 2020

Referral for medical examination No. 1n

In connection with the appearance at work on June 21, 2020, with signs of alcohol intoxication, employee Ivanov I. I ask that a medical examination be carried out on him.

General Director Sidorov V. Yu. /Sidorov/

I agree to the examination: Ivanov I. I. /Ivanov/

June 21, 2020

After the inspection has been completed, an inspection report is drawn up according to the form provided in Appendix No. 2 to Order No. 933n. In it, doctors draw conclusions about whether the employee is drunk or not.

If an employee who shows up at work drunk refuses to undergo an examination, this circumstance must be proven in other ways—witness testimony, acts, memos, etc.

Is it possible to fire someone for drinking at work without a medical examination?

However, it is permissible to terminate a contract with a guilty employee without conducting an examination. This is stated in paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004.

The state of intoxication is confirmed both as a result of a medical examination and other evidence. Therefore, it is important to collect all the facts indicating the guilt of the dismissed person: audio and video recordings, acts, explanatory notes, witness statements, etc.

The company, in support of the employee’s guilt, submitted a report on his appearance in a state of intoxication. It reflected signs of intoxication, measured on a breathalyzer, which recorded 1.03 ppm. The document indicates that the employee refused to give explanations and familiarize himself with the act.

Other employees also gave evidence confirming the plaintiff's guilt. The court collectively assessed the evidence presented and found the employer’s actions lawful and the dismissal legal.

Being drunk at work is unacceptable , so the employer can fire the employee. It is enough for him to come to work drunk once. The employer requests an explanatory note and uses it to decide what disciplinary measure to apply and whether this should be done in principle.

The procedure for dismissal for alcohol, drug or toxic intoxication is quite labor-intensive. It is important to strictly adhere to the algorithm of actions, draw up the necessary acts, request explanatory notes and collect evidence confirming the presence of an offense.

Otherwise, the dismissal may be challenged in court, which threatens to reinstate the employee in his position and pay him compensation for forced absence.

Conducting a medical examination

Let's consider the situation. For example, an employee refused to be examined. Not every enterprise has not only a local laboratory for testing, but also a regular doctor who will provide first aid. Ambulance staff do not have the right to make any official conclusions about a person’s condition.

Their main task is to bring the person to the hospital, where he will receive appropriate assistance.

What to do in this case? That is why an act is drawn up, where all the details and nuances are indicated. Company employees or doctors do not have the right to force an examination even with the help of a simple breathalyzer. But to assure the fact of refusal is quite enough. As a rule, this is enough to worsen your situation and lead to dismissal.

So, let's consider the stages of medical examination of an employee:

• Conduct an external inspection. It is supported by the results of tests: blood, urine, saliva. Doctor's choice.
• If necessary, any devices that allow you to assess the state of alcohol intoxication are used.
• The document is drawn up in two copies. The offender is informed of the findings of the medical examination.
• One of the copies remains in the medical institution, and the second is transferred to the place of work. An option with electronic or postal forwarding is possible.

If there are gross violations in the document, then it will not be a source of evidence in court. But no one cancels the testimony of the doctor who conducted the examination.

How to prove the fact of intoxication

If an employee is found drinking alcohol, this fact must be certified by an act. An official of the enterprise, colleagues, and immediate superior are involved in drawing up this document. After drawing up the act, the report is sent to the manager for further decisions.

Signs of intoxication may include the smell of alcohol from the employee, incoherent speech, gait disturbance, agitation, etc. If signs of intoxication are detected, the employer may invite the employee to undergo a medical examination or examination by a full-time medical employee. Refusal to conduct such a check is not a violation of the law, but will be considered as one of the evidence of the employee’s guilty actions.

Importance of Medical Examination

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

It should also be taken into account that the state of intoxication in medicine has a numerical measurement. A person whose blood contains less than 0.5 ppm of alcohol is considered clinically sober. This means that an adult man of average build can drink a glass of vodka and the doctor will not record in the report the grounds for dismissal for showing up at work while intoxicated, although the employee will certainly smell of alcohol.

How should a medical examination be carried out?

In order to insure yourself in the event of a labor dispute with an employee who immediately begins to look for ways to avoid fair punishment, it is better to formalize the situation correctly and send the subordinate for an examination. This must be done in writing, in the form of a direction on company letterhead with the seal and signature of the manager, indicating in it the reason for the examination. Even if a person refuses to go to the hospital, this can be noted in the document and certified by witnesses.

Is it possible to fire without a medical examination?

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

What formalities need to be followed?

The article of the Labor Code of the Russian Federation classifies appearing at work while drunk as culpable grounds for dismissal. This means that the employee is deprived of the right to receive severance pay, as well as a number of other incentive payments. However, the citizen will receive monetary compensation for the time worked, as well as compensation for the days of remaining rest. When placing an order, the manager must decide how the calculation will be made for the remaining days of vacation. This balance can be provided in kind or compensated in cash.

A sample dismissal order must contain the following points:

• date and document number;
• information about the employee, his position and structural unit;
• the basis for termination of employment relations is the conclusion based on the results of an internal investigation;
• link to the article of the Labor Code of the Russian Federation;
• a note indicating that the citizen is familiar with the contents of the order.

A sample entry in the work book will contain details of the manager’s order (date and number), as well as a link to clause. b) clause 6, part 1, art. 81 Labor Code of the Russian Federation. When issuing a work book, a citizen must be familiar with every entry made during the period of work at the enterprise. If the dismissed employee refuses to receive the document, it can be sent by mail in a valuable letter with a list of attachments.

Violation of the dismissal procedure will be grounds for reinstatement. An employee can file a claim within a month after reading the order or receiving a work record book. As a rule, the claim is satisfied if the deadlines for bringing to responsibility are violated, the employee is refused to provide written explanations, or if the fact of intoxication is inadequately confirmed. If the court decides to cancel the order, the citizen is reinstated in his previous position, and for the entire period of forced absence he will be compensated with average earnings.

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Drawing up an act of drunkenness

There is no clear form of the document in question. As a rule, the form is available in the organization or it is drawn up anew. What points should a drunkenness act contain?

1. Full name of the organization indicating the full name of the head.
2. Full name of the employee who committed the violation.
3. Full name and personal signatures of two witnesses or members of the expert commission.
4. The text describes all external signs of behavior and the results of the medical report. In some cases, a police report, if the employee behaved aggressively, threatened physical violence, etc.
5. The employee briefly states the reason for his behavior. If he refuses, then this fact is indicated separately. An explanatory note, as a rule, is written when a person comes to work in a sober state.
6. Date, place and time of drawing up the document.

Among the nuances, we note the following:

• special attention is paid to documents that form the basis of the evidence base: acts, notes, conclusions, etc.
• The violator must be made aware of the order. He confirms the fact with a personal signature.

When filling out a work book, the following items must be indicated: date of entry, reasons for dismissal, order number. The entry is supported by the signature of a HR specialist and the seal of the organization.

How to fire an employee for drunkenness: step-by-step instructions

The procedure for terminating the contract in this case looks like this:

1. The employer or subordinates discover an employee who is drunk. In the latter case, a memorandum is drawn up addressed to the director.
2. The violation is recorded in a written act signed by at least two witnesses. They may be other employees, even if they work in the same department as the person being dismissed.
3. The offender is asked to undergo a medical examination. If the organization has a full-time health worker, he does the tests. In other cases, the citizen is taken to a specialized dispensary, where blood is drawn and a conclusion is drawn up indicating the number of ppm and the degree of intoxication. The document is attached to other materials.
4. The head of the department requests an explanatory note from the violator, which is provided by the latter within two working days. If an explanation is refused, an act is drawn up.
5. Having received an explanatory note and prepared documentation, the employer issues a dismissal order. The employee must be familiarized with it against signature. If you refuse to sign in the presence of witnesses, an act is drawn up, or a mark is placed on the order itself - the choice is at the discretion of the director.
6. On the last working day, violators are paid in full for wages and unpaid vacation. Any misconduct committed is not grounds for canceling these payments. All documents are also issued: diploma, work book, etc.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

All reports, medical reports and acts must be collected in one folder. In the absence of any of the documents, the dismissed person will be able to challenge the termination of the contract in court.

Another significant nuance is the employee’s activities during the proceedings before the order is issued. While the circumstances are being clarified (requesting an explanatory note and undergoing an examination), the employer has the right to remove the offender from his position by issuing an appropriate order. In the future, it will also be attached to the rest of the documentation.

Signs of intoxication

Before dismissing an employee, the manager is obliged to make sure that there are signs of intoxication and send him for examination. The basis for sending may be:

• inappropriate employee behavior;
• characteristic smell;
• lack of coordination, unsteady gait;
• dilated pupils;
• facial redness;
• the appearance of hallucinations;
• incoherent speech.

Documents upon dismissal

After the order is issued, on the last working day, the head or employee of the HR department is required to issue a work book and educational documents submitted during employment. If during work a citizen improved his qualifications and received certificates (certificates, certificates), they are also required to be issued.

The accounting department is obliged to provide the dismissed person with certificates of contributions to the Pension Fund and average earnings. A 2-NDFL certificate is also issued. At the employee's request, a copy of the dismissal order is issued.

How can you avoid being fired for drunkenness?

But even the presence of a positive response from the hospital does not always provide grounds for legal dismissal. There are circumstances in which an inadequate condition did not occur through the fault of the employee:

• the violation of discipline occurred due to the use of medications in doses prescribed by the doctor (the report from the narcologist will then indicate that the fact of ingestion of alcohol was established, no signs of intoxication were recorded);
• safety requirements were violated, as a result of which the person inhaled harmful fumes (an employee can be fired only if it is his fault that an accident occurred at work).

In addition, the Labor Code requires that certain categories of workers be treated with special caution, even when their alcohol intoxication is beyond doubt:

• Pregnant women - Art. 261 of the Labor Code prohibits the dismissal of expectant mothers on the initiative of the employer, regardless of their behavior (but a woman can be removed from work duties and left without pay for that day);
• Minors - they can be fired, but after first obtaining the consent of the labor inspectorate in the region and the commission for the affairs and protection of children under 18 years of age, Art. 269 ​​TK.

In addition, you should not succumb to the temptation of demonstrative “expulsion” of an unconscious member of the team if sufficient evidence has not been collected regarding him. It is all the more dangerous to make such a decision alone, without creating an advisory body in the form of a commission. Insufficient evidence in court will be clearly interpreted in favor of the employee.

When going to court, refusal of a medical examination or attempts to falsify its results may be regarded by the court as indirect confirmation of the employee’s guilt

Alternative options

There are several reasons why an employer may not want to spoil an employee’s work record and fire him for drunkenness:

• Reluctance to interfere with career development. If the true reason for termination of the contract is indicated in the work book, there is a possibility that subsequently the dismissed person will simply not be accepted into other organizations.
• Kindness. The offender himself may ask not to terminate the contract on “shameful” grounds, and the employer has the right to meet him halfway.

One way or another, reluctance arises by mutual agreement. The director and the offending subordinate can agree on other methods of dismissal, thanks to which the latter’s work record will not be spoiled:

Termination of a contract by agreement requires compliance with a certain procedure:

1. The initiator sends a written notice to the other party with a proposal to leave and indicating the essential conditions. Either party can take the initiative in this case.
2. The other party accepts the notice and provides a written response. The date and time for concluding the agreement are agreed upon.
3. The contract itself is drawn up. The employer and the person being dismissed independently determine the date of dismissal and indicate other conditions therein.

The issue of drawing up an agreement is relevant when dismissing pregnant women who drink alcohol in the workplace. Here only female workers have the right to take the initiative, because The law prohibits employers from terminating contracts in such a situation. This is a great way to get rid of an offending employee without being held liable in the event of litigation.

The procedure for terminating an employment agreement with an employee for drunkenness is accompanied by a number of difficulties. In order to dismiss the culprit legally and avoid subsequent problems, the employer must comply with the requirements of regulations regarding the execution of the procedure and related documentation.

Who can't be fired

Yes, there really is a certain category of people who cannot be punished:

1. Pregnant employee. However, you can bring her to justice, according to Article 192 of the Labor Code of the Russian Federation. Another option is for the employee to resign of her own free will.
2. Minors. The decision is made by a special commission consisting of not only employees of the organization.
3. The employee is intoxicated due to the nature of the production. For example, chemical.
4. The employee takes medications based on ethyl alcohol. The fact is confirmed by prescriptions and extracts from the medical record.

Otherwise, there are no exceptions for employees.

Punishment for drunkenness at work

How to record an employee appearing at work in a state of intoxication and bring him to disciplinary action

If an employee shows up to work drunk or gets drunk at work, this cannot be left to chance. Not only does he set a bad example for others, but he can also cause serious trouble: breaking equipment, injuring someone, or injuring himself. You need to react quickly, before the employee, firstly, has done something wrong, and secondly, has not sobered up. The Labor Code allows an employer to fire an employee even for appearing drunk at work just once, because this is a gross violation of labor duties. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation. Let's see how to do it correctly.

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

How to challenge dismissal under an article for drunkenness? Of course, file a statement of claim and contact the labor inspectorate. In this petition, you need to tell in detail your version of what happened and attach all the documents refuting the dismissal under this article.

Thus, an employee can be fired for drunkenness only after collecting all the evidence and conducting a special medical examination.

In addition, it is important to notice the employee’s drunken state in time and immediately take action: suspend him from work, collect witnesses and draw up a report on the employee’s appearance at work in an inappropriate manner. Only after this is a dismissal order issued and a corresponding entry is made in the work book.

What is showing up to work while intoxicated?

You can be fired for appearing in a state of intoxication at work , that is, subclause. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation; Clause 42 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2:

• directly at your workplace;
• on the territory of the organization;
• at another facility where he works on behalf of the employer (for example, he performs installation work for a contractor, is on a business trip) Ruling of the Perm Regional Court dated January 19, 2011; Determinations of the Moscow Regional Court dated 03/31/2011, dated 12/14/2010.

We tell the manager

An employee can be fired for drunkenness only if he is caught doing it during HIS working hours on the employer’s premises. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation; clause 42 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2.

Plus, dismissal can only follow for appearing in a state of intoxication during working hours, Art. 91 Labor Code of the Russian Federation. These should be working hours specifically for that employee, and not just company hours. For example, if he drank on company premises while on vacation, on leave, or on sick leave, then he cannot be fired. Ruling of the St. Petersburg City Court dated March 15, 2011. The courts even recognize as illegal the dismissal of an employee who showed up in a state of intoxication 40 minutes before the start of his shift and was detained at a checkpoint by a security guard. Ruling of the Perm Regional Court dated July 15, 2010.

Dismissal under article for drunkenness and absenteeism

Only if there is a medical report on the employee’s condition, can the procedure for applying disciplinary action to him in the form of dismissal be continued. Now you need to fill out the documents correctly.

To do this you need:

1. write a report. This is done by the person who found the employee in this state.
2. If he writes an explanatory note, then it is filed with the act of recording intoxication, which was drawn up by the relevant commission;
3. Now all documents are transferred to the company management for further investigation and decision-making on the problem.
4. A director or other person authorized to make relevant decisions may do the following:
5. dismiss the employee. This happens if drunkenness is systematic;
6. apply other disciplinary sanctions.

We follow the dismissal procedure

Since Article 81 of the Labor Code of the Russian Federation qualifies dismissal for drunkenness as a type of disciplinary sanction, before issuing an order to terminate the contract, the procedure established by Art. 193 Labor Code of the Russian Federation.

First, make sure that all of the listed classification requirements are met. If at least one of these signs is absent, it is illegal to fire someone for drunkenness.

Request a written explanation from the employee. If after two working days the employee has not provided an explanation, draw up a free-form report about this.

Step-by-step instructions on how to fire an alcoholic or drug addict

conclusions

For reporting to work while intoxicated, an employee may be subject to the most severe disciplinary measure - dismissal.

When terminating an employment contract in this case, you must be guided by Article 81 of the Labor Code of the Russian Federation.

Drunkenness is a gross violation of established production rules. A violator can be fired if a single offense is recorded.

It is important to document intoxication; for this, the employee should be sent for a medical examination.