Labor article for drunkenness. Dismissal for drunkenness - step-by-step procedure

The appearance of an employee at work in a state of alcohol or other intoxication may result in severe disciplinary punishment and even layoffs. But the employer must act carefully, because the presence of intoxication still needs to be proven. The employee can subsequently challenge his dismissal in court, and the court must be satisfied that there was sufficient evidence to support the reduction.

In subparagraph “b” of the sixth paragraph of Article 81 Labor Code RF, edited in 2006, it is indicated that attendance at work in drunk means that the employee is in such a state not only directly at his workplace, but also generally on the territory of the company or other facility where he carried out instructions from management.

The intoxication itself - not a legal, but a medical term. Its signs may be, for example, redness of the skin of the face, changes in pulse, tremors of the hands, the presence of a clear odor of alcohol from the breath, and slurred speech. However, much of this can occur in humans when high temperature or as a result of taking medications. This should also be taken into account.

In what cases is it possible?

The law provides for the possibility dismissal of an employee even after his one-time resignation going to work drunk, as this is a serious offense leading to a violation of labor obligations. But the manager may not always lay off all employees who are in this condition.

Persons under the age of majority can be dismissed only after confirmation by a trade union body or a special commission dealing with the affairs of minors and protecting their rights. This is stated in Article No. 269 of the Labor Code.

An employer does not have the right to terminate a contract with a pregnant woman, even if she comes to work drunk. According to Article 261 of the Labor Code, a pregnant woman can be dismissed only in the event of liquidation of the enterprise.

It is also impossible to lay off an employee in hazardous production who has been accidentally intoxicated as a result of toxic poisoning. Such an offense is not subject to punishment, since it was committed without intent.

The mere presence of alcohol in the blood is not a reason for dismissal, since intoxication means its certain concentration in the body. This is 0.5 ppm, which can be determined after drinking 75 grams of vodka or half a liter of beer with a weight of 80 kilograms.

According to the Labor Code, sanctions can be applied to an employee only if he is intoxicated. An employee who was drunk on the territory of the enterprise cannot be fired if this happened during his non-working hours, for example, after the end of his work shift, on holidays, weekends, etc.

Options for the development of events

Since toxic or drug intoxication is quite difficult to prove to a non-specialist, it is best to immediately conduct a medical examination of the employee.

The leader must take care about evidence that the employee went to work or was drunk at the workplace. First, a special act must be drawn up, then signed by three witnesses. This document is especially necessary in the case where the employee refused a medical examination, since this refusal is recorded in it. The act also lists the signs by which intoxication was determined.

If an employee behaves inappropriately, fights and makes trouble, then it makes sense to call the police. Police officers can take him to a medical sobering station or to the nearest department. Then additional evidence will appear, which will be recorded in a special police report or in the form of a medical certificate from the sobering-up center.

Representatives of a trade union organization may be involved in checking the employee if he is a member of one. The called ambulance team can also record in writing the signs of poisoning with alcohol or other substances by issuing a certificate. But you should call the police or an ambulance only in special cases.

How to detect intoxication?

To draw up an act proving that a subordinate is drunk, the employer must convene a commission of at least three people. It may include the immediate head of the structural unit, a lawyer and a specialist responsible for safety and health.

Conducting a medical examination should not violate the law. Only specialists - narcologists or psychiatrists from narcological clinics or other medical institutions - can be invited for examination. You can't call the first doctor you come across. according to an advertisement in a newspaper, since he may not have the appropriate certificate and license for this type of activity. All procedures must comply with the instructions.

Employee has the right to refuse passage medical check, you should not force him to do it against his will. But then a special act is drawn up confirming this refusal.

The first necessary document is an act indicating that the person was drunk at the workplace. The form for drawing up the report can be arbitrary, but it must indicate the date, details of the employee and his position, the degree of intoxication, the period of suspension from work, and at the end the signatures of the manager and witnesses.

Another mandatory proof is a medical report signed by medical specialists. Also, the employee must give an explanation when he next appears at work, that is, write an explanatory note. All listed documents are transferred for storage to the HR department. The manager may request them for consideration in order to decide on the punishment of such an employee.

Procedure for placing an order

The first thing an employer must do if such a violation occurs at his enterprise is remove the offending employee from work. This is a mandatory requirement for the head of an organization. He may be held liable in the event of accidents caused by the presence at work of a person in a state of alcohol intoxication.

For proper removal, a separate order should be issued, which can be signed by the head of the entire company or structural unit. Punishable with an order must be familiarized with signature. The time sheet calculates the number of hours worked before the employee was suspended. Also, a special note is made on the report card, meaning that from a certain date the employee was not allowed to work on the basis of current legislation, and he is also not paid a salary during this period.

If a final decision is made to dismiss an employee, an order is drawn up. It indicates the date, then the document is assigned a number. All information about employment, transfers, and qualifications is also indicated; specific reasons for dismissal and a link to the article in the Labor Code of the Russian Federation must be specified.

The order is given a name, followed by a date and signature. There is an article for dismissal for drunkenness. This is the sixth part of Article 81, namely subparagraph “b”. In accordance with the order, all payments are made to the employee, and a work book is also issued. In this case, severance pay is not provided.

Other types of employee punishment

Exist various options penalties that the employer may impose. This:

1. Dismissal.
2. Comment.
3. Rebuke.

When choosing a sanction should be guided by how the employee was characterized throughout the entire period of work in the organization. If he showed himself well and had no other disciplinary sanctions, then we can agree to terminate the contract by mutual consent of the parties. Sign up for work book dismissal under this article can have a very negative impact on your future career.

The employee may try to prove in court that the procedure was carried out illegally. If there is not sufficient evidence, then it is better for the employer to use a milder method of punishment - a reprimand or reprimand.

Drunkenness or being in a state of intoxication is a very serious disciplinary violation at work, for which punishment is provided. Even the one-time appearance of an employee drunk gives the manager the right to fire him. The entry must be made in the employee’s work book, which practically cancels out his career. But all this requires evidence such as a medical examination. An act is also drawn up, which records the condition of the subordinate. For this purpose, witnesses must be involved.

Unfortunately, drinking alcohol in the workplace or showing up to work while intoxicated is not that uncommon. The employer has the right to dismiss such an employee, but only after correctly filling out all the necessary papers.

Dismissal for alcohol intoxication is disciplinary action, which is provided for in Art. 81 Labor Code of the Russian Federation. But the fact of misconduct must be recorded correctly, and all documents must also be drawn up correctly. Otherwise, such an employee may sue for illegal dismissal.
If personnel and medical documents are completed incorrectly, the court will recognize the fact that the dismissal did not occur in accordance with the Labor Code of the Russian Federation. After this, the employee is subject to reinstatement to the same position. The employer must pay him wages for forced absence, and in some cases, also compensate for moral damages.

In paragraphs 6 paragraph 6 art. 81 of the Labor Code of the Russian Federation states that the employer has the right to dismiss an employee for a single appearance at the workplace while intoxicated. But there is a limitation - dismissal for drunkenness in the workplace.

That is, if an employee has already appeared at work in an inadequate state (that is, he drank before the start of the working day) or was seen with a bottle after his shift, then this does not threaten him in any way. The only thing is that if he comes to work in this form, he faces removal from his work functions and a reprimand. If he is noticed after a shift in this condition, but shows up for work in the morning normal, then the employer has no right to apply sanctions against him.

But if an employee drank alcohol (either before or after the start of the working day) on the employer’s premises, this may become a reason for the employer to initiate an internal investigation. Such actions by an employee are a violation of the labor and work process, and can lead to unpleasant consequences with other employees.

However, not all employees can be fired for such a violation. There are certain categories that have “immunity”:

• minor worker. Even if he is drunk and there is a medical report, he can be fired only by obtaining written permission from the guardianship authorities or from the labor inspectorate;
• It is possible to fire a pregnant woman on this basis, but it is difficult. It is necessary to prove that she was drunk and did not take alcohol-containing medications that her doctor prescribed.

Article of the Labor Code of the Russian Federation for dismissal for drunkenness

Dismissal for drunkenness is provided for in Art. 81 Labor Code of the Russian Federation. But to prevent an employee from filing a lawsuit, it is necessary to comply with all the nuances of such a process.

To do this, it is necessary to correctly identify alcohol intoxication. Impaired speech and movement coordination can cause stress in a person or be signs of an incipient illness. Therefore, it is worth paying attention to other symptoms that are specific to alcohol intoxication. This:

• aggressive behavior;
• the skin on the face turns red;
• dilated pupils;
• the employee is talking nonsense;
• he began to hallucinate;
• appropriate odor from the mouth.

If an employee has these signs, then doctors can be called to record the fact. 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 complete the documents correctly. To do this you need:

• write a report. This is done by the person who found the employee in this state. The note is drawn up in the name of the head of the structural unit or in the name of the director. The purpose of such a note is to inform management about violations of labor discipline. The form of the document is free, but must be written;
• management reviews this note and decides to investigate this case. A special commission is being assembled for this purpose. But first you need to issue an order on the convening and composition of the commission. Its members must be at least 3 employees, but these do not necessarily have to be management positions. These can be absolutely any employees of the enterprise;
• the commission does not make a decision on this employee, it only records the fact that he was intoxicated at the workplace. To do this, an act is drawn up that describes in detail:
  • present characteristic features alcohol intoxication - smell, lack of coordination, etc.;
  • the actions he performs;
  • other signs that may indicate that he is drunk.
• you need to call the doctors. Only they can reliably confirm the state of intoxication. In this case, it is necessary to obtain the employee’s written consent to undergo a medical examination. If he refuses the procedure, it is necessary to draw up a corresponding act. If the employee agrees, then the arrival of doctors or transportation of the employee to a medical facility, as well as all necessary medical procedures, is carried out at the expense of the employer. If intoxication is not confirmed, then the employer has no right to demand compensation for these expenses from the employee. Call ambulance impossible, since carrying out such a procedure is not their responsibility. Important! The legal limit for blood alcohol is 0.16 ppm. This value may be due to the fact that the employee uses medications containing alcohol or, tritely, drank kvass or kefir. If the alcohol content in the blood exceeds this indicator, then doctors draw up a protocol according to the established form 155/u;
• After this, you need to get a written explanation from the employee about what happened. This should be done after it becomes normal. In a state of intoxication, he is unlikely to give intelligible explanations. The employee has the right to refuse to give written explanations. Then you need to draw up another act. If he writes an explanatory note, then it is filed with the act of recording intoxication, which was drawn up by the relevant commission;
• Now all documents are transferred to the company management for further investigation and decision-making on the problem.

A director or other person authorized to make relevant decisions may do the following:

• dismiss the employee. This happens if drunkenness is systematic;
• apply other disciplinary sanctions. As a rule, if an employee is highly qualified and responsible, and his state of intoxication is noticed for the first time, management dispenses with a reprimand.

If a decision has been made to dismiss the offending employee, then a corresponding order must be drawn up. The text of the document lists all detected signs and evidence. You must indicate the full name of the supporting document and indicate the date of its execution. The employee must be familiarized with the order. He must sign it. If he refuses to do this, then a corresponding act must be drawn up, which will be signed by the boss of the dismissed employee and two witnesses.

On the last working day, the dismissed employee receives all his documents, as well as a full payment, which includes:

• wages for days actually worked from the beginning of the month until the day of dismissal;
• compensation for unused vacation;
• severance pay is not due, since the basis for dismissal is the employee’s guilty actions.

He should receive:

• his work book, which will indicate that he was dismissed on the basis of paragraphs. 6 paragraph 6 art. 81 Labor Code of the Russian Federation;
• certificate in form 4-FSS;
• certificate in form 2-NDFL.

As practice shows, if there is such wording in the work book, it is almost impossible to get a good and paid job again. Therefore, if there is such an opportunity, you need to try to persuade the boss to resign by agreement of the parties or on his own initiative. As a rule, if an employee worked well and had no complaints, employers meet halfway and terminate the contract not “under the clause”. The presence of such wording is a “wolf ticket” to paid work.

If an employee performs the labor functions of a driver at an enterprise, then he also faces dismissal for drunk driving. Termination procedure labor relations exactly the same as for drunkenness in the workplace, but here the evidence will be the traffic police inspector’s report, a medical examination and a court decision to deprive such a driver of a special right - that is, the right to be fired by a vehicle. And since his job responsibilities are directly related to the management of the vehicle, then he can carry out his labor activity he will no longer be in this position.

The basis for issuing a dismissal order will be a court decision on deprivation this employee driver's license for a specified period. The driver must be familiarized with this order against signature. If he does not sign the order, then a corresponding act must be drawn up. On the last working day, the dismissed employee receives a paycheck and all documents.

If there is an opportunity to reach an agreement with the employer, it is better to use it and try to quit not “under the article”, but at your own request or by agreement of the parties.

This is the best way out of this situation, especially if the driver has not had such complaints before and has not been a participant in such incidents. After returning your license, you will still be able to get a job as a driver again.

How to fire an employee and maintain your reputation? One of the unpleasant reasons to fire an employee is dismissal for drunkenness. This is a common situation these days. There is an article in the Labor Code that regulates the relationship between employer and employee in this case. It happens that a manager turns a blind eye to drunkenness at work for some time. Especially if the employee is good specialist and a promising personality. But there is a limit to everything. An employee who regularly abuses alcohol will soon lose his professionalism and can cause irreparable harm to the company's image.

If an employee comes to work drunk or has been drinking heavily during the working day, it is better not to ignore it. Even if this happened for the first time, it is worth holding a precautionary conversation for preventive purposes. Otherwise, this fact will be considered unnoticed and will lead to repetition. Drunkenness in the workplace will progress, which will negatively affect the atmosphere in the team, and perhaps other employees will begin to follow the example. If such an immoral person appears at work, it is necessary to stop his illegal actions.

There is an article in the Labor Code that allows an employer to fire an employee for appearing drunk at work once.

Explanatory is the first warning, which may be the last. Let's consider the procedure for dismissing an employee in accordance with the Labor Code.

Dismissal of an employee is possible only when he is noticed in a state of intoxication directly at his workplace, on the territory or at another facility where he was on the direction of the employer (on a business trip, at a company branch, at a customer site). If he is noticed in a state of intoxication outside of his working hours, then a warning may be enough. In the case of irregular working hours, it is already more difficult. If an employee drank on the territory of the enterprise at a time when he should not have been there, then no court will find him guilty. Even if he drank before the start of the working day and was detained at the checkpoint, this is also not considered a reason for dismissal. You cannot dismiss a minor employee without the consent of the state labor inspectorate and the commission for minors. It sounds quite strange, but it is impossible to remove a pregnant woman from work while intoxicated according to the article of the Labor Code. The Labor Code stipulates how to fire an employee and how he can protect himself upon dismissal.

The employer’s actions are not particularly different if the territory in which the organization is located is Ukraine. In this case, the article of the Labor Code changes and some features appear. For example, women who have a child or children under 3 years of age and who have a child(ren) under 6 years of age cannot be dismissed under this article if that child requires home care. The Labor Code protects intoxicated single mothers who have a child under 14 years of age or a disabled child from losing their jobs. The same applies to fathers who are raising a child without a mother or the mother stays in a medical institution for a long time, guardians and trustees. It turns out that they have a reason to drink at work and go unpunished. Entries in the work book are made with reference to the corresponding clause 7 of Art. 40 Labor Code of Ukraine.

Please note right away that intoxication is a medical concept, and a common person does not have the right to draw an unambiguous conclusion. Without being a specialist, this is difficult to establish, since many of the symptoms of intoxication are characteristic of other conditions: severe excitement, stress, high temperature, poisoning, etc. Only a medical examination can help resolve this issue.

How to properly record an employee's state of intoxication

The immediate supervisor of an employee who appears at the workplace while drunk, or any colleague, informs the head of the company or the acting director about the fact of the violation. A commission is appointed to conduct an official investigation, draw up a report and send it for a medical examination.

Drawing up an act upon dismissal for drunkenness

The act of showing up to work while drunk will be evidence in court of the revealed fact. But the Labor Code does not explain how to do this correctly. This means we act on our own: we find a sample on the Internet and adjust it to suit our case, thus recording intoxication. It must be remembered that if the dismissal procedure is carried out incorrectly, the employee may sue the employer. Entry in the work book about dismissal under clause. "b" clause 6 of Art. 81 of the Labor Code of the Russian Federation can put an end to not only a future career, but also the ability to find work in the future. Therefore, the employee will strive with all his might to challenge the fact that he was fired for drunkenness.

Judicial practice shows that a decision is often made to reinstate the employee. This may happen due to the existence of “pitfalls” in the Labor Code. They can be avoided if all points of the relationship between the employee and the employer are thoroughly spelled out in the employment contract. Here are the main points for correctly writing the act:

The act is drawn up in two copies and given to all participants against signature. An employee can win in court if he proves that there were no grounds for dismissal under the article for drunkenness, including if the report was not drawn up. As a result, the employee is reinstated in his position, and the employer may be forced to pay for moral damages. An explanatory note, if one was written earlier, is also attached to the case.

Medical examination procedure

Often, an employee for whom a dismissal order is being prepared refuses to undergo a medical examination. Be sure to record this in the act. According to the Labor Code of the Russian Federation, it is not the responsibility of employees to undergo a medical examination for alcohol intoxication; they cannot be forced to do this by law. Yes, and this procedure is paid. The initiator will have to send the employee for examination to a specialist and pay for it. If signs of intoxication are detected, you can later try to recover damages from him. Send the offender quickly to a procedure to determine the degree of intoxication, because the signs may disappear within a few hours. As a result of the visit to the doctor, a protocol will be drawn up in form No. 155/u, the conclusion of which gives the right to dismiss under clause. "b" clause 6 of Art. 81 Labor Code of the Russian Federation.

A dismissal order is prepared, signed by the head of the company, and the employee is immediately removed from the work performed. A sample order can be found on the Internet. While the cause of the condition is being determined, the employee will be considered not at work. This is a kind of insurance for the employer against unnecessary costs. Working time after suspension from work for drunkenness is not paid and is not included in vacation time. In order for everything to be 100% legal, make an entry on your time sheet by entering the letter code “NB” or the numeric code “35”. This will be the basis for non-accrual wages.

According to the Labor Code, the manager is obliged to remove a drunk employee from work. A person's behavior while intoxicated is unpredictable. If measures are not taken, a drunk person may harm himself or another employee with possible fatal. In this case, the manager may be held criminally liable. It's worth protecting yourself.

How to punish an employee for drunkenness at work

If a drunk employee behaves aggressively or tries to use force, feel free to call the police or emergency medical services. After drawing up the documents described above, a decision is made on what the next step will be - dismissal for drunkenness or forgiveness of a negligent employee. If the decision to say goodbye to the employee is firm, then a corresponding entry is made in the work book. It is stated that the employment contract was terminated at the initiative of the employer due to appearing at the workplace while intoxicated, and the article of the Labor Code on the basis of which this occurred is indicated.

According to the Labor Code, on the day of dismissal, the employer must pay the employee for wages and unused vacation days and issue him a work book. Naturally, in this case there can be no talk of severance pay. When an employee in a state of intoxication behaves peacefully, but the expediency of dismissal is obvious, it would be better to negotiate with him about dismissal by agreement of the parties.

The best way to prevent drunkenness in the workplace is to promote a healthy lifestyle. This primarily concerns the habits of celebrating holidays, birthdays, and personal events. And nowadays, many companies have a veto on alcohol. You can celebrate the occasion at work, but only with soft drinks and sweets.

Drinking alcoholic beverages is permitted at corporate parties in restaurants, cafes, and outdoors. It would be good if such events were also non-alcoholic. But if this cannot be avoided, diversify your leisure time with sports competitions and a cultural program. This will bring novelty to the collective celebration and reduce the time spent drinking alcohol. The procedure for dismissal under an article for drunkenness is not a very pleasant procedure. Therefore, it is better to spend your working time on more productive things. Take care of healthy way the life of his team, and he will definitely respond with excellent results.

Dismissal for drunkenness under article

Current legislation allows the dismissal of an employee for being drunk at work (clause “b”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation). Even if this is the first violation, and the employee has not been subject to disciplinary action before.

Dismissal for drunkenness is one of the few grounds for labor disputes in which the courts quite often side with the employer. But only if the law was applied correctly and all necessary formalities were observed.

We qualify correctly

An employee who was in such a state during working hours at his workplace, in another area of ​​the enterprise, or at a facility where he was supposed to perform an assigned task can be fired for being in a state of intoxication.

Intoxication can be confirmed by a medical report or other evidence.

Therefore, to correctly qualify the offense, you need to confirm the totality of the following circumstances:

• employee's state of intoxication
• being in this state during working hours
• presence of a drunk employee on the employer’s premises or at the place where assigned work is performed

In the absence of at least one of these signs, dismissal will be illegal.

We follow the dismissal procedure

Dismissal on the grounds provided for in clause 6, part 1, article 81 of the Labor Code of the Russian Federation is a type of disciplinary sanction. Therefore, before issuing a dismissal order, you must follow the procedure established by Article 193 of the Labor Code of the Russian Federation. 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.

You can issue a dismissal order no later than a month from the date the misconduct was discovered, not counting the time the employee was ill or on vacation. Please note that the law prohibits dismissing an employee at the initiative of the administration during his illness or vacation.

Arbitrage practice

P. filed a claim to have the dismissal declared illegal and reinstated at work. He claimed that he was not drunk and did not violate anything. In addition, he believed that the employer violated the procedure for bringing to disciplinary liability.

At the court hearing it was established that the employer drew up a report on P.’s appearance at the workplace in a state of intoxication. On the same day P. was fired under paragraphs. “b” clause 6, part 1, article 81 of the Labor Code of the Russian Federation. The act does not indicate on what grounds the employer came to the conclusion that the employee was intoxicated. Honey. no inspection was carried out. The employer did not give the plaintiff the opportunity to provide any explanations, did not investigate the circumstances of the case, and on the same day issued a dismissal order.

The court decision satisfied the employee's claims.

M. was fired for showing up to work while drunk. He did not agree with the dismissal and filed a lawsuit. The statement indicated that he was on leave for family reasons that day. The foreman called him and asked him to come to work to hand over the keys. Since M. did not intend to show up for work, he drank a glass of beer in the morning, but was not drunk. At the exit from the enterprise, security guards stopped him and drew up a report of being in a drunken state.

When the case was considered in court, M.’s testimony was confirmed. He was indeed on leave without pay and came to the plant at the request of the foreman. IN explanatory worker also pointed out these circumstances. The report on M. being in a state of intoxication was drawn up in his absence, according to the security workers.

The court reinstated the employee, declaring the dismissal illegal. The employer did not prove that M. was drunk. In addition, the plaintiff was at the enterprise during non-working hours.

People almost always appeal against dismissal for drunkenness - no one wants to have such an entry in their work book. Therefore, immediately prepare all documents as you would prepare them for court.

Make sure that the employee was intoxicated during working hours. A common mistake made by many employers: security detains at the entrance an employee who came to work early, but shows signs of intoxication. A report is drawn up, and the employee leaves for home. And his working time has not yet arrived, i.e. This person was not drunk on the territory of the enterprise during working hours. And, accordingly, it is impossible to fire him for this.

A similar situation: an employee is late at work and comes out already tipsy. And then in court he will claim that he drank after working hours. If the employer fails to prove otherwise, the dismissal will be considered illegal.

A medical report is not mandatory, but it will most reliably confirm the fact of intoxication. Therefore, if you have any doubts about the sobriety of an employee, invite him to go to a medical facility for examination. If an employee refuses to be examined, draw up a statement of refusal; in court it will serve as an additional argument in your favor.

When drawing up a report on an employee being in a state of intoxication, indicate in detail what signs the employees who drew up the report used to come to this conclusion. Keep in mind that if a termination dispute arises, these employees will likely be subpoenaed as witnesses.

How to file a dismissal for drunkenness at work?

Dismissal for drunkenness at work can only be done under a number of conditions. Read our article about what these conditions are and how to avoid dismissal being declared illegal.

Circumstances of the place: what is appearing drunk at work under Article 81 of the Labor Code of the Russian Federation

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

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

Circumstances of time: was it working time?

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

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

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

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

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

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

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

Creation of a commission to draw up an act

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

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

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

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

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

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

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

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

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

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

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

Medical opinion as evidence of intoxication

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

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

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

Suspension from work duties before dismissal for drunkenness

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The nuances of dismissal for drunkenness: step-by-step instructions, as well as a sample order for downloading

One of the most common situations at work that gives grounds for dismissal under an article for drunkenness is the appearance of the latter at work drunk.

People often turn a blind eye to such incidents if the employee is an expert in his field, has been working for a long time, has never been found guilty of anything bad, and his “condition” does not in any way affect the performance and quality of work.

But such behavior can provoke work-related injuries, accidents and other unpleasant situations, as a result of which other people may suffer.

Therefore, management needs to know how to properly fire someone for drunkenness in the workplace.

Read the article to find out how to fire an employee for drunkenness correctly from the point of view of the law.

The question of dismissal under article b, part 6, art. 81 for drunkenness in each specific case the head of the enterprise must. If a decision is made to dismiss, he must prove the employee’s guilt by competently completing the necessary documents.

The following main signs of alcohol intoxication can be identified:

But not always, based only on these symptoms, we can assume that there are grounds for dismissal for drunkenness.

It will not be possible to fire someone for drunkenness if you notice these signs, because the same signs are present in other conditions, such as stress, poisoning with toxic substances, etc., and the smell may be associated with the person’s intake medicines according to the doctor's indications.

What degree of intoxication can cause dismissal?

Since dismissal for alcohol intoxication in accordance with the Labor Code of the Russian Federation is possible only for being intoxicated at the workplace, and not for the fact of drinking alcohol, it is necessary to prove that the concentration of alcohol in the blood is equal to half a ppm, which is equivalent to 75 grams of vodka or 1 bottle beer for a person weighing about 80 kg.

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.

What categories of employees are prohibited by law from being fired for showing up at work while intoxicated?

The article of dismissal for drunkenness does not apply to the following categories of employees:

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.

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:

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.

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.

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.

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.

Dismissal for drunkenness in the workplace under article

Every organization has a few problem employees. As a rule, management dissatisfaction arises when an employee fails to show up for work. This topic is especially relevant during the post-holidays. If, for example, a person called work, reported that he was not feeling well, and showed up at work the next day, he may receive a warning.

But if a person shows up at work a few days later without medical documents, he cannot be fired for drunkenness. Even if the reason is obvious. In this case, registration should take place under the same Article 81 of the Labor Code of the Russian Federation for absenteeism.

How to fire an employee for drunkenness in the workplace

Dismissal of an employee is provided for gross violation of discipline. However, it is necessary to formalize the dismissal in accordance with Article 81 of the Labor Code of the Russian Federation. The procedure must take place in a strictly defined order, otherwise it will result in consequences in the form of inspections from various departments, ranging from the labor inspectorate to the Economic Crime Department. The number of checks is directly proportional to the number of statements written by the dismissed employee.

If the dismissal is found to be unlawful, the employee may be reinstated in the workplace. This will entail the need to pay him compensation for forced downtime. After this, inspections can begin in the organization. When detecting violations of the Labor Code of the Russian Federation, a labor law inspector may issue a fine in the amount of:

• For officials maximum size the fine will be 50,000 rubles;
• For individuals fine up to 40,000 rubles;
• For legal entities, the maximum fine is up to 200,000 rubles.

Dismissal for drunkenness in the workplace procedure

The correct procedure for dismissal for drinking alcohol while working is very important. Step by step order actions:

• Recording the fact of drunkenness and warning the employee about the consequences;
• Drawing up a report on the fact of drunkenness with the signatures of three employees;
• Conducting a medical examination in a specialized institution;
• In case of refusal by an employee to undergo an examination, drawing up a report;
• Drawing up a dismissal order;
• Familiarization of the employee with the order on record;
• Making an entry about dismissal under the article for drunkenness in the work book.

The dismissal order must be based on the memorandum. Examples from judicial practice show that this is evidence of the legality of termination of an employment contract in disputes in court.

If you were fired for drunkenness, what should you do?

If a person has received a record of dismissal in his work book for drunkenness in the workplace, he has three ways to correct this record:

• Reinstatement at work by court decision;
• Issue a duplicate of the work book;
• Get a low-paying job for a short period of time.

Going to court makes sense if the procedure for completing documents was violated during dismissal for drunkenness. This is possible if there is no memorandum with which the person should be familiarized, or it was drawn up retroactively. This guarantees reinstatement in the workplace and payment of compensation in accordance with the Labor Code of the Russian Federation. If the procedure is followed by management, filing an application with the court will not bring the desired result.

Dismissal under article for drunkenness, entry in work book

If it is not possible to correct the entry in the work book through the court, you need to get a new job. If a person proves himself well, this fact will be a reason to believe that the problem with alcohol addiction has been solved. If a person is not hired for another job, he can provide a certificate of treatment, for example from a clinic or from a narcologist.

If the employer for some reason did not submit reports to the pension fund, you can get rid of the entry in the work book without consequences. To do this, you need to create a duplicate book. It is not necessary to visit all employers to restore a record. The Labor Code of the Russian Federation provides for the opportunity to restore all data on the length of service at the last place of work. The last place of work is considered to be where the employer paid contributions to the Pension Fund. In this case, the following procedure must be followed:

• Buy a new work book;
• Present your work book and passport to the HR department;
• Write a statement about the loss of the document with a request for its restoration;
• Pick up your work book.

If the employer paid contributions to the Pension Fund, the entry can be removed, but this will become known.

How to make sure you don't get fired for drunkenness?

The best way to solve a problem with an entry in the work book is negotiations with management. At best, you can count on a warning if the action did not cause damage to the employer.

If negotiations for disciplinary action do not yield results, you can go another route. The procedure for dismissal under the article is much more complicated than under the usual procedure. Therefore, it is quite possible to write a statement of your own free will. Most likely, management will meet the person halfway.

The article was written based on materials from the sites: alko03.ru, clubtk.ru, nsovetnik.ru, moyafirma.com, classomsk.com.

As of: 07/30/2010
Magazine: Everything for HR
Year: 2010
Author: Vorozheikin Ilya Alexandrovich
Topic: HR documents, Employee disciplinary liability
Category: Got a problem? Here's the solution

Document templates
Report of appearing at work while intoxicated

Regulations

Labor Code Russian Federation(extract) Code of the Russian Federation on Administrative Offenses (extract) Law of the Russian Federation dated April 18, 1991 No. 1026-I “On the Police” (extract) Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code Russian Federation" (extract)

The other day we had an unpleasant incident. An electrician came to work in the morning and disappeared. We searched for half a day, but could not find it. In the end, they found him in the back room: he got drunk and fell asleep. This is not the first time something like this has happened to him, he was tired of “turning a blind eye” to it, so they decided to fire him. I explained to our manager that before issuing a dismissal order, the electrician must be sent for a medical examination. Not so! In a good way, he flatly refused to go, we can’t force him... The team is female - we won’t fight with a drunk man. It is clear that time has already been lost with that case and nothing can be done about it, but for the future I would like to know - are there any solutions to such a problem?

We regret to admit that in the situation you described, it is really difficult to prove that an employee is intoxicated. By general rule it is impossible to conduct a medical examination against the will of the employee (Part 1 of Article 33 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens, approved by the Supreme Council of the Russian Federation on July 22, 1993 No. 5487-1).

The formal opportunity for proof (and subsequent termination of the employment contract) is opened by the Plenum of the Supreme Court of the Russian Federation. He pointed out that the state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and other types of evidence, which must be assessed accordingly by the court (clause 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation"). What kind of evidence could this be?

YOU SHOULD KNOW THIS

It is important to establish not just the fact of alcohol consumption, but the state of alcoholic intoxication

Evidence 1. Act on the employee being intoxicated at the workplace. Such a document must be signed by at least three witnesses.

OUR ADVICE

Try to ensure that one of the drafters of the acts is a representative of the employer, empowered to resolve issues of bringing to disciplinary liability (for example, the head of the HR department), and the rest are employees who are not interested in the outcome of events (for example, a cleaner and an accountant)

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

It would not be a mistake if you combine the above acts into one, where you describe the signs of alcohol intoxication and at the same time indicate that the employee was asked to undergo a medical examination, but he refused.

The main thing is that the employee must be familiarized with each act against signature!

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

At the same time, I would like to warn you: if the act is drawn up, for example, by the head of the personnel department, a legal adviser and the immediate supervisor of the unfortunate employee, there is a high probability that the court, in the event of a dispute, will come to the conclusion that the persons who compiled it were biased.

Require from the employee written explanation reasons for violating labor discipline while he is “tipsy” does not always make sense. It is better to do this when the employee sobers up.

Note!

It is from the moment when the employee understands exactly what is required of him that 2 working days should be calculated, which are allotted to the employee to give explanations (Article 193 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation). After this, you have the right to issue an order (instruction) to terminate the employment contract with the employee under subclause. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

OUR ADVICE

If the employee does not want to familiarize himself with the act and refuses to sign it, read the act out loud in his presence. And this fact should also be recorded in the act.

But we want to warn you that the courts do not always recognize the acts as sufficient evidence that the employee is intoxicated at the workplace. Most often, the court questions the objectivity of the persons who drew up the acts.

Evidence 2. Police report. If an employee is so drunk that he is unable to control his emotions and actions, is hooligan, makes trouble, or gets into a fight, then you can try to resort to the help of the police. Explain your challenge by saying that the person is violating the rules of public order. But be prepared for the fact that this may not work.

On the one hand, for appearing on the streets, stadiums, squares, parks, public vehicles, and other public places in a state of intoxication that offends human dignity and public morality, the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) provides for the possibility of imposing an administrative penalty. a fine in the amount of 100 to 500 rubles. or administrative arrest for up to 15 days (Article 20.21 of the Code of Administrative Offenses of the Russian Federation).

The police are empowered to deliver to medical institutions or to the duty units of the internal affairs bodies and contain in them until sobering up persons who are in public places in a state of intoxication and have lost the ability to move independently or navigate the environment, or who can cause harm to others and (or) themselves. If such a person is in a dwelling, there must be a written statement from the citizens living there if there is reason to believe that the behavior of this person poses a danger to their health, life and property (Clause 11 of Article 11 of the Law of the Russian Federation of April 18, 1991 No. 1026-1 "About the police")

OUR ADVICE

If the employee is a member of the primary trade union organization operating in your company, involve its representatives in drawing up the act

On the other hand, organizations as “territories” in which being in a state of intoxication entails administrative liability and from where drunk citizens can be taken to medical institutions are not directly included in this list. What's happened " public place", is not defined in the law. Therefore, the question of whether the place where your rowdy works is public remains open. It's one thing when we're talking about about organizations such as shops, cafes - it is obvious that they can be classified as public places. What if a person works in some isolated place, where almost no one except himself has access? For example, you barely found your own electrician...

OUR ADVICE

If an employee is intoxicated, do not forget to remove him from work

Therefore, we do not undertake to say unequivocally that calling the police will lead to the desired result. But there is such a possibility.

If you nevertheless decide to resort to the help of the police and internal affairs officers arrive and see signs of an administrative offense in the actions of your employee, they will at least draw up a report on administrative offense, on the basis of which a decision may be made to bring the violator to administrative liability. This protocol and resolution can play a positive role for you if the case suddenly comes to court.

Moreover, depending on the employee’s condition, police officers can take him to a specialized institution - a medical sobering station. Where he will be examined. Moreover, the employee will not be able to refuse this examination. When an employee is taken to a medical sobering-up center, a protocol will be drawn up in which the medical worker will record the condition of the “patient.” Such a protocol is sent to the employer. In any case, even if the report from the sobering-up center was not sent to you, this document, when the employee goes to court challenging the illegal dismissal, will appear in the case at the request of the judge.

Summary

The state of alcoholic intoxication can be confirmed by both a medical report and other types of evidence: official acts, police reports, medical certificates. But keep in mind that it makes sense to call the police or ambulance only in exceptional cases.