Showing up at work while intoxicated. How to fire an employee for being intoxicated at work

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
Certificate of appearance for work in a state alcohol intoxication

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 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 the employee to provide a written explanation of the reasons for the violation 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 keep in them until sobering up persons who are intoxicated in public places 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.

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

Dismissal for alcohol intoxication is a logical reaction of any manager, who has the right to immediately terminate the employment relationship with a subordinate and to give him a preliminary reprimand or reprimand. In any case, drunkenness is a serious reason for the offending employee to be suspended from work. job responsibilities on the day the offense was committed.

In general, the procedure for dismissal for drunkenness in the workplace is practically no different from the usual termination of an employment contract at the initiative of the employer, with the exception of some points: he must have Required documents, proving the guilt of the dismissed employee.

From a medical point of view, there are several degrees of intoxication: mild, moderate and severe, this is due to the percentage of alcohol in the blood:

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

Most often, the presence of more than 5% alcohol in the blood causes serious alcohol poisoning or even coma, which poses a particular danger to the health of the employee himself and can lead to fatal outcome. To prevent this, you need to immediately call an ambulance upon discovering an offense, and postpone the proceedings until the day when you can have a constructive conversation with the offending employee, and nothing will threaten his life. Drawing up a report on the employee’s presence in drunk in such a situation, you can do it on the same day, because the most important thing is that it has the signatures of at least two witnesses.

Legal basis

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

• Art. 76 of the Labor Code of the Russian Federation, according to which the employer is obliged to suspend from work an employee who appears in a state of intoxication. This measure is mandatory, and the manager must apply it at the moment the misconduct is discovered.
• Art. 81 of the Labor Code of the Russian Federation directly indicates that a manager has every right to dismiss a subordinate if he comes to work drunk. Do preliminary notes or reprimands in this case are not necessary, because just one gross violation is enough for dismissal, even if the employee has not previously been subject to disciplinary punishment.
• Art. 192 of the Labor Code of the Russian Federation gives employers the right to apply any of the disciplinary sanctions (reprimand, reprimand or dismissal) against their subordinates who come to the organization drunk. Which one to choose depends directly on the wishes of management.

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

• Before dismissing an employee, the manager is obliged to request an explanatory note from him. If it was not provided within two days, then he draws up a corresponding act. Failure to submit an explanatory note is not grounds for suspending the procedure for terminating an employment contract.
• An employer may dismiss a subordinate no later than one month from the date the misconduct was discovered. The exception is when the employee is on vacation or sick leave - this time is not taken into account.
• Having issued an order to apply a disciplinary sanction, the manager is obliged to familiarize it with the signature of the employee in respect of whom it was drawn up within three days.

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

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

• First, the director must record the fact that the subordinate is drunk on the territory of the organization. For this purpose, an act is drawn up and signed by two witnesses. Memos and complaints from other employees may be included in the case.
• The manager issues an order to remove his employee from work, then demands an explanatory note from him.
• Next, a report is prepared in any form. It must reflect the grounds for dismissal and a direct description of the situation itself.

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

Step-by-step instruction

In order to correctly terminate an employment contract due to an employee appearing drunk in the organization, you need to do the following:

• Draw up a report confirming that the employee is intoxicated. This can be done either by the manager himself or by the person responsible for access to the site. After writing the act, it is necessary to obtain the signatures of two witnesses. It is advisable that they are not directly associated with the offending employee and work in another department or division. Witness testimony can also be recorded in a memorandum.
• After drawing up the act, the manager must demand an explanatory note from the subordinate, having previously issued an order requiring it to be provided within two days, and familiarizing the employee with it against signature.
• After receiving the explanatory note, the employer has a month to decide what disciplinary action apply to an employee: reprimand, severe reprimand or dismissal. If after two days the explanatory note has not been provided, then a corresponding act is created and certified by the signatures of two witnesses. It is worth noting that weekends and holidays are not taken into account, and if the culprit was unable to explain his misconduct in writing, this will in no way prevent his dismissal.
• Next, the employer draws up a report in any form, and it is supported by other documents: an act of appearing at work while intoxicated, an explanatory note from the employee himself, or an act on his refusal to provide written explanations.

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

• The manager draws up an order of dismissal for drunkenness, the sample of which is established by Resolution of the State Statistics Committee of January 5, 2004 No. 1 and is filled out in form T-8. If several people are subject to dismissal, then another form is used - T-8a.
• The issued order is recorded in the appropriate journal.
• An employee of the HR department signs a note-calculation in accordance with the Resolution of the State Statistics Committee dated January 5, 2004. No. 1 form.
• Directly on the day of dismissal, a full settlement is made with the employee: a salary is issued for the time worked, compensation for unused vacation and other payments provided labor legislation or a collective agreement.
• Information about dismissal is entered into the employee’s personal card, then it is certified by his signature and the signature of the HR department employee. If the dismissed person refuses to sign on the card, then a corresponding entry about this is made on it.
• The work book is filled out. The dismissed employee must sign it as well.

Dismissal under article for drunkenness: entry in the work book

As you know, correctly filling out documents has great importance, and any mistakes are not allowed here. To correctly draw up a work book, you should use simple instructions:

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

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

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

And it is advisable for an individual entrepreneur to attend the employee’s examination in person. This is necessary in order to understand whether the examination is being carried out with violations. They are caused by both the negligence of employees of a medical institution and the employee’s refusal to conduct an examination, as a result of which doctors may not carry out the necessary tests. If the examination report indicates that the employee refused to take tests, then from the moment of receipt of the specified report individual entrepreneur it is necessary to understand that the examination was not carried out in full and such an act is not adequate evidence that the employee is intoxicated. To ensure that the dismissal is not declared illegal by the court with corresponding consequences for the individual entrepreneur, you should be on the safe side and take care of documenting other evidence.

Despite the fact that examination is a legally flawless way to establish alcohol intoxication, it is quite difficult to use it for a very banal reason - the employee’s reluctance to undergo a medical examination. If the employee resists and does not want to go to a medical healthcare facility, we can assume that the first part of the problem has been solved (we will talk about the second a little later). You can resort to the services of security (if there is one) or call the police for help. True, in the latter case, it is necessary to remember that the police officers are not obliged to comply with the request of the entrepreneur to deliver an employee who is intoxicated to a medical facility (although more often than not they still help rather than refuse). You can go another way - call ambulance(state over the phone a more or less plausible reason for the call (for example, poisoning) and ask the doctors to record in writing the fact of the employee’s intoxication.

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

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

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

• witness's testimonies;
• reports of appearing at work in a state of alcohol, drug or other toxic intoxication;
• memos of officials.

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

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

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

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

A sample act is given in Example 1.

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

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

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

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

If all documents are available, you can issue an order for his dismissal using the unified form No. T-8. The text of the order should indicate the basis for dismissal - for appearing at work while intoxicated, with reference to subparagraph “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation, and at the end of the order, provide a link to the completed documents as the basis. A sample order form is in Example 4.

In addition, upon dismissal, a settlement note must be drawn up upon termination of the employment contract with the employee (Form No. T-61). It is drawn up in a standard manner, just like in other cases of dismissal. After the order is issued, it is necessary to familiarize the employee with it against his signature and make the final payment.

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

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

The appearance of an employee at the workplace in a state of alcohol, drug or other toxic intoxication is an unconditional basis for dismissal (subparagraph “b”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation). However, such dismissal must be formalized correctly. Otherwise, the employee will have the opportunity to be reinstated at work and even receive compensation for forced absence.

Under the basis specified in subparagraph. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, employees who appear drunk at their workplace in work time or on the territory of the employing organization or facility where, on behalf of the employer, the employee had to perform a labor function. In accordance with paragraph 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 the courts of the Russian Federation of the Labor Code of the Russian Federation,” employees who were during working hours at the place of performance of work duties (for example, on a business trip) may be dismissed on this basis in another city) while intoxicated. It does not matter whether the employee was suspended from work due to the specified condition.

Rules for terminating an employment contract

Terminate the employment contract with the employee under clause. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation - in the case of a one-time gross violation by an employee of labor duties, namely his appearance at work in a state of alcohol, narcotic or other toxic intoxication - is possible only if certain conditions are met. Namely, the employer must have irrefutable evidence that the employee was intoxicated at work.

The first thing to do is to remove the employee from work, as prescribed by Art. 76 Labor Code of the Russian Federation. The head of the structural unit where the offending employee works issues an appropriate order (instruction) in this regard.

Then the fact that the employee appeared at work drunk must be documented.

An employee's drunken state or drug or toxic intoxication can be confirmed by a medical report, an act, an order of removal from work, or witness testimony. From these documents it should be clear by what criteria the employee’s drunken state is determined. That is, these documents must contain information about a person who is intoxicated. This may be the smell of alcohol in the exhaled air, lack of coordination of movements, instability, unsteady gait, incoherent speech, aggressive behavior, redness of the face and a number of other signs.

Note!

To draw up a report on an employee being intoxicated, it is advisable to involve as witnesses persons who are not directly associated with this employee at work (that is, they are not his subordinates, colleagues, direct management).

An act recording the state of intoxication can be drawn up by the immediate superior of the person being dismissed, the head of the enterprise, or the person responsible for allowing a specific employee to work. And witness testimony can be recorded in memos and other similar documents.

The day after the employer has established and documented that the employee was intoxicated, the employee must be required to provide a written explanation. To do this, you need to issue an order from the head of the organization indicating the deadline by which the employee must provide explanations. The employee is introduced to this order against signature. If after two working days the employee does not provide the specified explanation, a corresponding act is drawn up (Part 1 of Article 193 of the Labor Code of the Russian Federation). The calculation of the period for giving explanations begins from the next day and weekends are not included in the two-day period established by law.

After this, within a month from the date of discovery of the misconduct (this period does not include the employee’s time of illness and vacation), the head of the organization makes a decision on what penalty to apply to the employee.

Important!

Upon dismissal under sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employer must take into account the severity disciplinary offense at least disciplinary liability in the form of dismissal: to what extent the state of intoxication affected the employee’s performance of his job functions. This may be expressed in the fact that the employee created a threat to himself and third parties.

If a decision is made to part with an employee, it is necessary to prepare a memo addressed to the manager who has the right to hire and dismiss employees, describing the employee’s disciplinary offense, a draft order for his dismissal under sub. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation. TO memo and the order must be accompanied by a complete package of documents:

Act on the appearance of an employee at the workplace in a state of alcoholic intoxication;

Medical examination protocol;

Order (instruction) on removal from work.

As already said, this basis also provides for dismissal for appearing at work in a state of narcotic or other toxic intoxication. Therefore, if an employee shows up for work with signs of intoxication other than alcohol, the procedure will be the same. The relevant report also needs to describe the employee’s state of intoxication.

It is important to know that when drugs act on the body, there is inhibition of reactions or, conversely, increased anxiety, narrowing or dilatation of the pupils, impaired coordination of movements in the absence of the smell of alcohol.

Toxic intoxication generally resembles alcohol intoxication - the same lack of coordination, redness of the skin. But the characteristic signs are swelling of the nose, difficulty breathing, trembling of the head, dilated pupils.

Procedural points

Dismissal under clause “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation refers to a type of disciplinary sanctions, therefore it is necessary to follow the procedure for applying penalties in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness, time on vacation, as well as the time required to take into account the opinion of the representative body of employees. It is important to consider that the moment of detection of absenteeism is not the day on which the employee’s absence was discovered, but the moment of finding out the reasons for his absence, that is, the date of receipt of the explanation.

It is at this moment that the offense is considered completed and discovered (Part 3 of Article 193 of the Labor Code of the Russian Federation). A disciplinary sanction cannot be applied later than six months from the date of the commission of the offense (and not discovery!) (Part 4, Article 193 of the Labor Code of the Russian Federation).

In this case, we are talking about dismissal for a disciplinary offense (Part 2 of Article 192 of the Labor Code of the Russian Federation). Let us present the necessary algorithm.

1. We collect documents confirming the fact that the employee committed guilty actions (medical report, official reports, reports, acts). A sample act is given on p. 98.

2. We issue an order to remove the employee from work. A sample order for suspension from work is given on p. 99.

3. We require a written explanation from the employee about the reasons and motives for what happened (Article 193 of the Labor Code of the Russian Federation). If after two working days the employee has not provided an explanation, we draw up a corresponding act in the presence of witnesses (Article 247 of the Labor Code of the Russian Federation). A sample act of refusal to provide an explanation is given on p. 100. Failure by an employee to provide an explanation is not an obstacle to applying a disciplinary sanction (Part 2 of Article 193 of the Labor Code of the Russian Federation).

4. We prepare a report on the employee committing a disciplinary offense. A sample report is given on p. 101.

5. We issue an order (instruction) to apply a disciplinary measure in the form of arbitrary dismissal. We bring it to the attention of the employee against signature within three working days from the date of its publication. If the employee refuses to familiarize himself with the document against signature, we draw up a corresponding act about this fact (paragraph 6 of Article 193 of the Labor Code of the Russian Federation). A sample order to apply a disciplinary sanction is given on p. 102.

4. We issue an order of dismissal in form No. T-8 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). We allow the employee to familiarize himself with this order against signature within three working days from the date of publication. If the employee refuses to familiarize himself with the order, we draw up a corresponding report. A sample dismissal order is given on p. 104.

5. We make an entry in the work book about dismissal due to a one-time gross violation of labor duties: showing up at work while intoxicated (subparagraph “b”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation) and the employee’s personal card (form No. T-2). A sample entry in the work book is given on p. 105.

6. We issue the work book to the employee on the last day of work (Article 84.1 of the Labor Code of the Russian Federation).

7. We make a full settlement with the employee (Article 84.1, 140 of the Labor Code of the Russian Federation).

The procedure for bringing to disciplinary liability established by Art. 193 of the Labor Code, provides for the issuance of an order to impose a disciplinary sanction. This document is drawn up to justify the termination of the employment contract.

Please note that Rostrud, in letter dated 01.06.2011 No. 1493-6-1, stated that in order to formalize dismissal for committing a disciplinary offense, it is enough to issue an order to terminate the employment contract in Form No. T-8, which indicates the memorandum and employee's explanatory notes. At the same time, the Federal Service

recognized the established practice of issuing two orders, on the application of a disciplinary sanction and on dismissal, which does not contradict the law.

What else you need to remember

Termination of an employment contract with an employee under clause. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is carried out at the initiative of the employer.

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 a disciplinary sanction, 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 absenteeism, and in some cases, also to compensate for moral damage.

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 to this employee, it only records the fact that he was intoxicated at work. 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. You cannot call an ambulance, 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. An employee has the right to refuse a dacha 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 to deprive the employee of a driver’s license for a certain 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 come to an agreement with the employer, it is better to use it and try to quit not “under the article”, but according to at will 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.