Dismissal for drunkenness - procedure and features of the procedure. An employee came to work drunk

Hello! In this article we will talk about dismissing an employee for drunkenness.

Today you will learn:

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

If an employee is intoxicated at his workplace, the manager has every right to fire him. Another thing is that this procedure has its own nuances, without which the dismissal will simply become illegal. Today we’ll talk about how to do everything right and avoid a negligent employee going to court.

Peculiarities

The issue of dismissal of minor employees caught drinking alcohol is resolved with the participation of the commission on juvenile affairs.

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

Registration of dismissal

If the manager decides to terminate the employment contract, a corresponding order must be issued. There is nothing complicated in its preparation; the main difficulty is to familiarize it with the signature of the employee who will be fired.

The order is entered into the personnel register.

After these procedures, the final payment is made. They pay wages and vacation pay. At the same time, no money is accrued for the period while the employee was suspended from work. The amounts that were paid must be recorded in accounting documents.

At the last stage, an entry is made in the work book and in the employee’s personal card.

This order is not final - it can be challenged in the courts.

How proportionate is the offense and the penalty?

Judicial authorities do not always consider dismissal to be a proportionate punishment for showing up at work inappropriately. drunk. Therefore, the employer must not only take explanations from the employee, but also take into account what his behavior was before the offense, how he related to work in general, and only then make a decision.

Let's look at an example of judicial practice in this situation.

Example. The court of the city of T. recognized that the dismissal of citizen O. from work for appearing in working hours drunk illegally because:

Citizen O. worked at this enterprise for more than 10 years;
Never violated labor discipline before;
After 3 years, citizen O. must retire;
None negative consequences O.’s behavior did not lead to this.

Thus, before dismissing an employee, assess the situation, make sure that all the conditions for dismissal are present, so as not to end up as a defendant in court. Be sure to consider the employee's characteristics when making a decision.

How to avoid being fired for drunkenness

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

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

Even in a case where intoxication is proven and confirmed, the employer may not allow dismissal under the article. For example, if a specialist is highly qualified and undertakes in writing not to drink alcohol, he may not be fired at all.

You can impose another penalty, for example, deprive of bonuses by a certain percentage.

Although the second option is the most suitable. In this case, the employer does not need to deal with paperwork, write acts, conduct examinations, and so on. Most often, an employee who expresses such a desire is met halfway and is not fired under the article.

How to challenge dismissal

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

When going to court, the dismissed employee encloses copies of documents drawn up by the employer, as well as provide testimony from witnesses who will confirm that he is right.

The legality of the dismissal will be assessed by the court.

Conclusion

In conclusion of today’s conversation, I would like to give a few recommendations for both employees and employers: drinking 150-200 grams of alcohol during working hours is clearly not worth losing your job and ruining your reputation.

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

When can an official investigation into drunkenness be conducted?

Showing up at work while drunk is considered a gross violation of labor discipline. It is enough to come to work drunk once for this time to be the first and the last. In such cases, the fate of the employee is decided by the manager, since the Labor Code leaves the employer with the right to make the final decision.

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

Internal proceedings need to be started only if the violation occurred at work. This means:

The violator was located exactly at the workplace (gateway, workshop area, etc.)
The offender was drunk during working hours. These are the working hours of the employee himself, and not just the entire organization.
A violation recorded at the workplace on a day of rest, vacation, or sick leave is not considered committed at work.

If it is confirmed that an employee is drunk at work, this should be documented.

How to record a state of intoxication correctly

Dismissal for drunkenness in the workplace must be formalized in accordance with all the rules. For a biased approach to applying the most severe disciplinary measure, the employer may be held accountable, and the fired person may be reinstated.

In order to correctly qualify a violation, the employer must, during an internal investigation, obtain confirmation of the state of intoxication through a medical examination or other evidence. According to the law, it is impossible to force an employee to undergo a medical examination. If you refuse to undergo an examination, you must draw up an act, which in the future, if the dismissed person goes to court, will become an additional argument in favor of the employer.

Interesting facts

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

The employer’s actions are only legal if he reasonably states the employee’s condition as drunk, caused at work and not a consequence of deteriorating health (for example, increased blood pressure, taking medications, etc.). If the requirements of the law are taken into account when conducting an internal investigation, then based on its results the employee may be subject to appropriate punishment. In the event of further proceedings, the court will not be able to convict the employer of illegality of actions and cancel the dismissal order.

Step-by-step procedure for registering dismissal

If the employer intends to apply the strictest measures to a violator of labor discipline and fire him for drunkenness in the workplace (Clause 6, Part 1, Article 81 of the Labor Code of the Russian Federation), he must act in accordance with the procedure established by the legislator (Article 193 of the Labor Code of the Russian Federation).

Step 1. The violator’s immediate superior informs the superior employee about the employee’s expected condition.

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

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

In practice, a drunk employee is limited to drinking alcohol in the workplace. But sometimes in such a state thefts may be committed in the organization or insults to other employees of the company.

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

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

Step 3. The employee is suspended from work and given 2 days to provide a written explanation. Removal from work is carried out by order. The employee must sign that he has read the order. If he refuses to do this, you can, without drawing up an additional act of refusal, make the necessary note directly on the order and put the signatures of two witnesses.

Step 4. A free-form report on being intoxicated at work is drawn up. The act reflects:

time and place of compilation;
personal data of commission members;
signs based on which a conclusion is made about the condition alcohol intoxication: smell of alcohol, speech disturbances, unsteady posture, redness of the face, excited state, inappropriate behavior.

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

If after the time required by law (2 days) there is no written explanation for the offense, a report is also drawn up.

When all the evidence confirming the fact of being drunk at work has been collected, the question of how to fire an employee for drunkenness can be considered resolved: the employer has the right to issue an order to dismiss the violator. As a rule, the manager uses this extreme measure if there are no extenuating circumstances. They could be, for example, the following:

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

Some facts

The permissible amount of alcohol in the blood may also be present when taking medications or certain food products, for example, kvass, kefir or whey. Essentially small quantity ppm in the blood will be able to justify the need for removal from work only in case of unsatisfactory health, but will not be a reason for dismissal and return sums of money spent on the examination.

Taking into account all the factors, the employer may limit itself to issuing a reprimand. In any case, an order is drawn up no later than one month from the date of discovery of the offense.

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

An entry must be made in the employee’s work book indicating the grounds for dismissal and a link to an article of the Labor Code of the Russian Federation. The dismissal order is registered in the order register. After the order is issued, no later than 3 days from the date of its writing, the dismissed employee must familiarize himself with it against signature. 193 Labor Code of the Russian Federation).

Full payment to the employee is made on the day of dismissal. He is paid a salary for the time actually worked, and vacation compensation, if applicable.

Conclusion

The dismissal of an employee while intoxicated must be formalized in accordance with the procedure prescribed by law. As a rule, an employee fired under such a reputationally damaging article will look for the slightest inaccuracy in the employer’s actions in order to prove the unlawfulness of the dismissal and cancel the article.

If the court finds the dismissal illegal, the employer will have to pay wages for the entire period of forced absence, compensate for moral damages, and change the grounds for dismissal.

If a medical examination was carried out at an enterprise, the examination methods and methods approved by the Ministry of Health and Social Development of the Russian Federation must be used. Otherwise, the court does not recognize the issued conclusion as evidence and may declare the dismissal illegal with all the ensuing consequences.

To get a lawyer's comment, ask questions below

Dismissal “for drunkenness” is a rather troublesome procedure, accompanied by the publication of numerous acts and certificates confirming that the employee is intoxicated. Most personnel officers are not unreasonably afraid of the consequences of dismissal under this article, because for an employee, an entry in the work book about termination employment contract according to paragraphs "b" clause 6. part 1 art. 81 of the Labor Code of the Russian Federation - a stigma for the rest of your working life. This is probably why the courts are considering so many claims from people dismissed on this basis for reinstatement or change of entry in the work book. Correctly executed documents are a guarantee that a drinker of strong drinks will no longer appear in your organization.

Arguments, facts, acts

What to do if you find your employee in an insane state at work? Most HR specialists will answer that you need to run to the doctor, because... The main evidence of being intoxicated is a medical report. But before you start formalizing your dismissal for drunkenness, you need to clearly determine that drinking alcohol occurred at “work,” i.e. the employee’s workplace or the territory of the organization - employer or facility, where, on behalf of the employer, the employee must perform a labor function, and during working hours. The dismissal of those who like to “think for three” in the workshop or in their office at the end of the working day or shift, alas, will be considered illegal. So, we begin to record on paper the facts and evidence of an employee appearing in a state of intoxication during working hours.

In paragraph 42 of the Plenum Resolution Supreme Court RF dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" (hereinafter referred to as the Resolution) states that alcoholic or narcotic or other toxic intoxication can be confirmed by both a medical report and other types of evidence, which must be assessed accordingly by the court. Thus, a medical examination and conclusion are not the most important document when recording a state of alcohol intoxication. A well-drafted report on an employee’s appearance at work while intoxicated, a report on refusal to undergo a medical examination, testimony of witnesses - all this will become the basis for the removal of the offending employee from work, and then for his dismissal under paragraphs. "b" clause 6. part 1 art. 81 of the Labor Code of the Russian Federation, even though a medical examination as such was not carried out. Moreover, often tipsy workers themselves refuse to carry out measures against them. medical manipulations.

If an employee appears at work drunk, the employer or his representative must first of all record the fact that the employee is intoxicated. To do this, you must correctly draw up the appropriate act.

The “author” of the act of an employee showing up at work while intoxicated can be any official who monitors compliance with labor discipline: from a HR specialist to the employee’s immediate supervisor. Regulatory acts There is no unified form for this document, so each organization develops it independently. In order to avoid problems in the future during the trial, if this happens, the following information must be indicated in the act (see Appendix 1):

Signs of alcohol intoxication:

smell of alcohol on the breath;
instability of posture;
speech disorder;
pronounced trembling of the fingers;
sudden change in color skin faces;
behavior inappropriate to the situation;
the presence of alcohol in the exhaled air, determined by technical means of indication, registered, approved for use for medical purposes and recommended for medical examination employee for intoxication.

place of compilation, date, time (the more accurate the facts are, the better; time can be indicated accurate to the minute);
last name, first name, patronymic and position of the employee who compiled the document;
surnames, names, patronymics and positions of employees present when drawing up the act;
a description of the signs of intoxication of the employee, on the basis of which the drafter of the act concluded that the employee was intoxicated;
signatures of the author of the act and witnesses.

When preparing such an act, a problem may arise with describing the signs of intoxication of an employee, because the assessment of his condition will not be carried out by medical specialists. There are funny cases when, for example, an employer is sure that an employee is drunk, but he actually just took a medicinal herbal tincture (motherwort, valerian, etc.). Therefore, it should be carried out comprehensive assessment signs of employee intoxication. To do this, you can use the criteria listed in Appendix No. 6 to Order of the Ministry of Health of the Russian Federation dated July 14, 2003 No. 308 “On medical examination for intoxication.” Despite the fact that these criteria are designed to determine the condition of drivers vehicles, they are applicable to representatives of any specialty. If an employee is actually treated with healing alcohol-containing tinctures, he must have appropriate evidence.

In practice

Plaintiff K. filed a lawsuit against JSC Aeroflot - Russian Airlines for recognition of the dismissal order under paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation illegal, reinstatement at work, payment for forced absence, compensation for moral damage. She considers her dismissal illegal, since she was not intoxicated at work, and due to poor health, she was forced to accept medicines, including hawthorn and valocordin. By decision of the Golovinsky District Court of Moscow dated August 22, 2012, her claims were denied. The appeal ruling of the judicial panel on civil cases The Moscow City Court of May 16, 2013 upheld the above decision.

When considering the dispute, the court of first instance correctly established the factual circumstances relevant to the case and gave them a proper legal assessment. Thus, the court found that<дата>The parties entered into an employment contract, according to which K. was hired. By order of JSC Aeroflot - Russian Airlines dated April 25, 2012 No.<…>the employment contract with K. was terminated for appearing at work while intoxicated in accordance with paragraphs. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

The court found that K. during his work shift on 04/03/2012 at 07:50. was at her workplace in a state of alcoholic intoxication, which is confirmed by an act drawn up by the head of the State Observatory of Public Safety, a protocol of medical examination of K. to establish the fact of alcohol consumption and intoxication dated 04/03/2012, drawn up at the Moscow Scientific and Practical Center for Narcology, where she was taken for an examination, which she refused to undergo.

Refusing to satisfy the claims, the court, having examined and assessed the evidence collected in the case, came to the conclusion that the employer had grounds to dismiss the plaintiff on the grounds of paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, since she did not refute the information about the state of alcoholic intoxication reflected in the employer’s report, and did not provide evidence of taking medicinal alcohol-containing drugs during the specified period of time.

The grounds and motives on which the trial court came to such conclusions, as well as evidence, accepted by the court taken into account, are given in detail in the reasoning part of the decision, and there is no reason to consider them incorrect (decision of the Moscow City Court dated September 20, 2013 No. 4g/4–9746).

An employee who is intoxicated must be familiarized with the act, and he must sign confirming his familiarization with this document. But most often it is impossible to achieve understanding from a drunk employee. In this case, the act should make a note that the employee refuses to sign the document, or indicate his condition, which does not allow him to understand what is required of him, so it is impossible to familiarize him with the act on the day of drawing up.

Under no circumstances should an employee be forced to undergo a medical examination and force should not be used if he refuses. Grounds for refusal to pass medical examination, indicated by the employee, is recorded in a new act, which is drawn up according to the same rules and taking into account the same information as the act of being in a state of intoxication, or this can be reflected in the first act. The act of refusal of medical examination is provided to the employee for review: he either signs or refuses to sign, which must also be recorded in this document.

In addition, the following may serve as evidence of an employee being drunk at work:

testimony of witnesses (for example, other employees of the organization, representatives of the security service);
memos, which also record the behavior and condition of the “offender”;
doctor's testimony if the employee agreed to a medical examination.

The fact that a medical report is not the most important document in such cases is confirmed by judicial practice.

In practice

L. worked as a ticket cashier and was fired under paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (for a single gross violation of labor duties by an employee - appearing at work while intoxicated). From the act dated 08/17/2011, drawn up by the head of the Kyiv direction of OJSC “Central Suburban Passenger Company” K.I., as well as employees of the private security company “Fortress” M., U., it follows that at 03:45. in the building of the Kievsky railway station in the ticket office of the suburban hall, ticket cashiers L., Ya., O., Sh., G., E. were at work in a state of alcoholic intoxication. This condition was determined by the following signs: the smell of alcohol on the breath, an unsteady gait, cloudy eyes, incoherent speech. In accordance with an extract from the register of outpatients at the Kievsky railway station medical center for August-September 2011, on August 17, 2011, the doctor on duty K. M. and the paramedic on duty V. in the period from 04 h. 10 min. until 04:55 Using an AG-1200 indicator device, they took alcohol samples from ticket cashiers L., Ya., O., Sh., G., E. All employees tested negative for alcohol. According to the act dated August 17, 2011, employees L., Ya., O., Sh., G., E. refused to go for a medical examination. According to the protocol operational meeting from the deputy general director for passenger transportation of JSC "Central Suburban Passenger Company" dated August 18, 2011 No. 77/tsok, employees Ya., Sh., G., E. confirmed the fact of alcohol consumption by all ticket cashiers, cashiers L., O. disputed this fact. The court of first instance, making a decision on the case and restoring L. to work, indicated that the medical examination carried out at the medical center of the Kievsky railway station, the fact of use alcoholic drinks ticket cashiers L., Ya., O., Sh., G., E. did not confirm, the testimony of witnesses is evaluative and inconsistent in nature, and therefore there are sufficient grounds for bringing L. to disciplinary liability in the form of dismissal under paragraphs. “b” clause 6, part 1, art. The employer did not have Article 81 of the Labor Code of the Russian Federation. The panel of judges considered the court's conclusions to be erroneous, contrary to the norms of substantive law and inconsistent with the established circumstances of the case. When considering the case, giving preference to the results of the medical examination on August 17, 2011, the court of first instance did not take into account that it cannot be admissible evidence, because the examination was carried out with gross violations Temporary instructions on the procedure for medical examination to establish the fact of alcohol consumption and intoxication, approved by the USSR Ministry of Health on September 1, 1988 No. 06–14/33–14, currently in force. According to the specified Instructions, a medical examination to establish the fact of alcohol consumption and intoxication is carried out in specialized rooms of drug treatment clinics (departments) by psychiatrists-narcologists or in treatment and preventive institutions by psychiatrists-narcologists and doctors of other specialties who have been trained, both directly in institutions, as well as traveling in vehicles specially equipped for this purpose. The sequence of actions of the on-duty doctor K.M. and the on-duty paramedic V., the procedure for conducting a medical examination and paperwork do not meet the above criteria; accordingly, an extract from the journal cannot be a sufficient basis for concluding that L. had no signs of alcohol intoxication on August 17, 2011. Testimony of witnesses who are not in official or other dependence on the defendant, warned about criminal liability, are fully consistent with the testimony of employees of OJSC "Central Suburban Passenger Company"<…>and together with the acts dated 08/17/2011, the minutes of the operational meeting dated 08/18/2011, and other written case materials confirm the fact that L. was intoxicated on 08/17/2011. Taking into account the above evidence, the judicial panel came to the conclusion that the plaintiff’s state of alcoholic intoxication was confirmed, and the employer had sufficient grounds to bring her to disciplinary liability (appeal ruling of the Moscow City Court dated July 26, 2013 No. 11–23618/2013 ).

Suspension from work

An employee who is intoxicated must be removed from work. This requirement for the employer is specified in Art. 76 of the Labor Code of the Russian Federation, because if the employee is not suspended from work, the manager is held responsible for the consequences that arise in connection with the employee’s performance of work duties while intoxicated. The same article of the Labor Code of the Russian Federation also presents the procedure for removal from work.

Suspension from work is formalized by order (instruction) of the head of the department to which the employee belongs, or by the head of the organization (see Appendix 2). Despite the fact that upon dismissal under paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, it does not matter whether such a suspension was actually carried out; the presence of a corresponding order along with other documents will be an additional basis proving the employer’s position that the employee was intoxicated.

Dismissal as a disciplinary measure

All of the above acts, a medical report, and memos serve as the basis for imposing a disciplinary sanction on an employee who appears at work while intoxicated. The procedure for applying disciplinary sanctions is presented in Art. 193 Labor Code of the Russian Federation. Let's remember the basic rules:

A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct. In this case, neither the employee’s time of illness nor the period of his stay on vacation is taken into account;
Before applying a disciplinary sanction, the employer must request a written explanation from the employee.

It is also necessary to take into account that, according to Part 5 of Art. 192 of the Labor Code of the Russian Federation, when imposing a disciplinary sanction, the severity of the offense and the circumstances under which it was committed must be taken into account. Therefore, you should not immediately fire an employee without understanding the situation. If he is responsible, competent, and his misconduct did not lead to serious consequences, it may make sense to limit himself to a remark or reprimand.

In any case, it is necessary to request a written explanation from the offender. It happens that the employer asks to provide it orally, and the employee also verbally refuses. The employee is fired according to paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, and already in court proceedings for reinstatement, as an argument for illegal dismissal, the former employee refers to the fact that the manager did not even inquire about the reasons and circumstances, which is absolutely necessary in accordance with Part 5 of Art. 192 of the Labor Code of the Russian Federation to assess the severity of the offense committed. To protect yourself in the future from such false accusations, it is recommended to demand from the employee an explanation for being drunk by giving him a written notice (see Appendix 3), which should also indicate the period (two working days) within which the explanatory note should appear from an employee. If after two working days he does not provide the specified explanation (or refuses to serve the notice), then it is also necessary to draw up a corresponding act (Part 1 of Article 193 of the Labor Code of the Russian Federation).

Written explanation from the employee - important document, which the courts take into account when making decisions on illegal dismissal for appearing at work while intoxicated, which is confirmed judicial practice.

In practice

By order of May 29, 2012 No. 3–111/1L master of construction and installation work K. was brought to disciplinary liability in the form of dismissal under paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation in connection with a one-time gross failure to fulfill their job responsibilities, expressed in the appearance of K. at the workplace in a state of alcoholic intoxication on May 24, 2012. K. filed a lawsuit against INDASTEK ENERGOSTROY LLC to recognize the dismissal order as illegal, reinstatement, and recovery wages during forced absence in the amount of<…>rub., compensation for moral damage in the amount of<…>rub.

K. considers dismissal under paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is illegal, since the medical examination was carried out in violation of the established procedure, imposing a disciplinary sanction in the form of dismissal, the employer did not comply with the procedure for its application established by Art. 193 of the Labor Code of the Russian Federation. Resolving the stated demands, the court of first instance came to the conclusion that the employer had grounds for terminating the employment contract with the plaintiff on the grounds of paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, since the plaintiff was during working hours on May 24, 2012 at 09:30. at the workplace - in the foreman’s room on the site in the village. Sivaki was under the influence of alcohol.

This conclusion of the court is confirmed by the act of May 24, 2012 No. 3, drawn up by the foreman of the site S.E. (case file 93 volume 1), which reflects the signs of alcohol intoxication of the plaintiff - the smell of alcohol, impaired coordination of movements, instability of posture, as well as a medical report examination of the plaintiff dated May 24, 2012 for alcohol intoxication, compiled by an ambulance paramedic at the hospital in the village. Sivaki M., confirming the fact of alcohol intoxication of K., with which the plaintiff was familiarized on May 24, 2012, had no comments on the act (case file 97 volume 1). The plaintiff did not provide evidence to refute the court's conclusions. The plaintiff does not appeal the court decision in this part.

Checking the procedure for dismissing the plaintiff, the court of first instance came to the conclusion that the employer violated the requirements of Art. 193 of the Labor Code of the Russian Federation - were not requested from the employee written explanations circumstances of the disciplinary offense committed. Thus, the court found that the plaintiff was asked on May 24, 2012 to provide an explanation for the fact that he was intoxicated at the workplace on May 24, 2012 (case file 108 volume 1). The court did not accept as evidence the claimant’s refusal to give a written explanation for appearing at work while intoxicated on May 26, 2012, concluding that May 26, 2012 was a day off, so the report could have been drawn up by the defendant no earlier than May 29 2012, and since such an act was not drawn up, then there is a violation of Art. 193 Labor Code of the Russian Federation.

However, the judicial panel could not agree with this conclusion of the court, since it contradicts the materials of the case. Thus, the court, while resolving the claims made by the plaintiff, did not take into account the act of May 24, 2012 No. 3 about the employee being intoxicated at the workplace, in which K. explained this by saying that he was “resting” (case file 93 volume 1). The plaintiff signed this act, and he did not have any comments on the act. The plaintiff did not dispute the contents of the act.

In addition, the court did not take into account that before the defendant issued an order to terminate the employment contract with the plaintiff on 05/29/2012, two working days had passed (May 25 and 28, 2012) from the moment the plaintiff received the request for a written explanation - 05/24/2012 , the plaintiff did not provide an explanation, on May 28, 2012 he left the base in the village. Sivaki did not appear there again, which was not disputed by the plaintiff during the consideration of the case.

Based on the evidence presented by the parties, the court concluded that the employer complied with the requirements of Art. 193 of the Labor Code of the Russian Federation, the plaintiff gave an explanation for the circumstances of being intoxicated on May 24, 2012, indicating in the act dated May 24, 2012 No. 3 that he was resting. Despite the explanations given by the plaintiff on May 24, 2012, the defendant gave K. the opportunity to give detailed explanations, however, the plaintiff did not exercise his right, about which an act was drawn up on May 26, 2012.

At the meeting of the judicial panel, representatives of the defendant explained that workplace the plaintiff and other employees of the base in the village. Sivaki coincides with their place of work, which does not exclude the possibility of the employer drawing up an act on 05/26/2012.

Since during the consideration of the case it was confirmed that K. was intoxicated at the workplace during working hours, the judicial panel came to the conclusion that the demands for recognition of the dismissal order as illegal and reinstatement should be refused, since the employer presented evidence confirming that the plaintiff has committed a disciplinary offense. The disciplinary measure in the form of dismissal by the employer was chosen taking into account the severity of the offense and the circumstances under which it was committed (appeal ruling of the Moscow City Court dated May 30, 2013 in case No. 11–13442).

The employer's order (instruction) to apply a disciplinary sanction (in this case, it is an order of dismissal) is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work.
The form of the dismissal order depends on the document flow rules of a particular organization. According to Federal law dated 06.12.2011 No. 402-FZ “On Accounting”, forms of primary accounting documents contained in albums of unified forms of primary accounting documentation, approved. Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1, are not mandatory for use from January 1, 2013. In Art. 9 of this law stipulates that the forms of primary accounting documents are approved by the head of the economic entity upon the recommendation of the official who is entrusted with maintaining accounting. Therefore, organizations have the right to use forms of primary accounting documents developed by them independently. All mandatory details of the primary accounting document are listed in Part 2 of Art. 9 of the above law. However, this law also does not cancel the use of familiar unified forms. Therefore, if it is more convenient for an organization to fill out standardized forms, approved. Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1, they can also be used after these samples have been previously approved by order of the head of the organization. An example of drawing up a dismissal order in the unified form No. T-8 is given in Appendix 4.

If an employee refuses to familiarize himself with the order (instruction) on dismissal against signature, then a corresponding act is also drawn up, or an entry is made on the order.

Only after completing the listed actions can a dismissal entry be made in the employee’s work book under paragraphs. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (see Appendix 5), with which the dismissed person should be familiarized with signature, and it will be possible to part with the drinker.

Appendix 1

A sample of an act on the appearance of an employee at the workplace in a state of intoxication

Appendix 2

Sample order for suspension from work

Appendix 3

Sample notification to an employee of the need to provide a written explanation for appearing at the workplace while intoxicated

Appendix 4

Sample order for termination (termination) of an employment contract with an employee (dismissal)

Appendix 5

A sample of making an entry in the employee’s work book about dismissal according to paragraphs. “b” clause 6 of part one of Art. 81 Labor Code of the Russian Federation

E Katerina Roshchupkina- expert of the magazine "Kadrovik"

Drinking isn't just bad for your health drinking man, but also the efficiency of the enterprise. So, according to statistics, an alcoholic can miss 30-70 working days in a year. Moreover, if we consider all cases of employee absence from work, then almost half occur drinking people. Moreover, a person under the influence of alcohol creates a safety risk production process. For this reason, the number of injuries in the workplace is growing, and the number of industrial accidents is also increasing. However, labor legislation provides for dismissal under articles for drunkenness. Often this is the most extreme measure that management resorts to after unsuccessful attempts to come to an amicable agreement with such an employee.

Grounds for dismissal

The legal basis for dismissing an employee for systematically being drunk at work is the Labor Code of our country, namely its articles numbered 81, 76, 193 and 192.

Based on this code, you can fire a person who appears at work while intoxicated. Moreover, this condition means not only alcohol intoxication, but also stupefying the mind with narcotic or other toxic substances. Even if he was not at the workplace, but was at the facility or territory of the organization in such a state, he could be fired for drunkenness.

Important: dismissal of an employee is possible only if the state of intoxication is confirmed by a medical examination and considered by the court.

In addition to the MO, there must be other evidence. For example:

an act recording the fact that an employee was intoxicated at work;
an explanatory note written by the drunken employee himself;
reports from other employees.

IN Russian legislation There are several grounds for dismissing an employee at the initiative of the employer. And one of them is the termination of a permanent employment contract or the dismissal of a person who was intoxicated at the workplace.

According to the current Labor Code (LC), management has the right to punish drunkenness in the workplace. For this purpose, any disciplinary sanction may be applied:

comment;
rebuke;

Recording the fact of intoxication

If an employee is found drunk at work, this fact must be correctly recorded, which in the future can be evidence and grounds for dismissal under the article. To do this, follow the following sequence of actions:

First, you need to draw up a report on the presence or appearance of an employee in a drunken state at work. There is no clear form for this document, so it can be drawn up in any form. The act must be certified by the signatures of two employees acting as witnesses.
If the reprimand does not help the employee come to his senses, then an order is issued to remove him from the work process. This is not a unified document that can be drawn up in any form.
The employee must explain in writing his presence at the workplace in a state of intoxication. To do this, he is given a notice of request for a written explanation of the fact of intoxication at work. Typically, a person is given two days to submit a written explanation. If no explanatory notes were submitted to the authorities within this period, then the procedure involves drawing up an act of refusal to give an explanation. This act must be certified by the signatures of two employees who act as witnesses.
Next, an official document is drawn up - a memo about appearing at work while drunk. This note is written directly by the production manager himself and can be submitted in any form. It is necessarily supported by an act recording the fact of appearing at work while intoxicated, explanatory note from the employee himself or by an act that confirms the employee’s refusal to submit an explanatory note.

Sequence of dismissal

The step-by-step actions of the management of the organization where the dismissed employee works look like this:

An order of dismissal for drunkenness is drawn up. In essence, this is an order to terminate the employment contract (employment contract) with the employee. This document must correspond to a unified form numbered T-8 or T-8a.
This order is recorded in a special journal for registering orders relating to personnel.
A settlement note must be drawn up when terminating an existing (employment) contract. This document must correspond to Form T-61. On the day of dismissal for drunkenness, a settlement is made with the employee. He is paid a salary; if he was not on vacation this year, then compensation for unused vacation must be paid, and other payments may also be made.
Before dismissing an employee, he must be given an order regarding his dismissal for review. After familiarization, he must sign his autograph. If a person refuses to do this, then a note indicating his refusal is made on the order. It is recommended to prepare a statement stating that the employee refused to familiarize himself with the order. This act must be signed by two witnesses and the author of the document.
A record of dismissal is made in the employee’s personal card. The entry must correspond to the T-2 form and be certified by the signature of the personnel department employee and the signature of the dismissed person. If he decides to put his signature, then a corresponding note must be made on the card.

After the employee’s work activity at this enterprise is completed, a dismissal entry is made in his work book. In this case, making the corresponding entry is done as follows:

in the first column it is written serial number this entry;
the second column records the date of dismissal;
in the third column there should be a record of the reason for dismissal (it must comply with the wording of the Labor Code of the Russian Federation and be accompanied by links to the article number, its part and paragraph);
the fourth column records the document on the basis of which the person was fired.

Important: all entries in the book must be certified by the signature of management or an employee of the HR department, the seal of this organization, as well as the autograph of the employee himself.

The dismissed employee must receive a work permit with a note of dismissal or termination of the contract on the day of dismissal. An entry must be made in the movement log book. work records employees. If on this day the employee refuses to pick up the book (work), then he is sent a notification that he must pick up this document or give your consent to send it by mail.

Attention: according to the Labor Code of Russia, the employer must give the work book to the employee no later than within 3 working days from the date of dismissal. It is prohibited to send a book by mail without the employee’s consent.

Medical examination

It is possible to assert that an employee is drunk at work only on the basis of a medical examination. It can be carried out as quickly as possible from the moment the employee appears drunk, since after some time the alcohol will be eliminated from the body. The results of the medical examination as to whether the employee was sober or drunk are necessarily recorded in the medical report.

Some employers may experience certain difficulties in carrying out the medical examination procedure, since a person has the right to refuse a medical examination or demand termination of the procedure at any time.

The MO procedure works most effectively and is debugged in transport industries, in power industry institutions, as well as in other hazardous areas. manufacturing enterprises, where it is very important that all employees are sober. In such organizations, usually before starting working day a medical examination is carried out, and its results are recorded in “sobriety reports”.

Important: the medical examination procedure is carried out by narcologists in special rooms of medical narcological clinics.

Sometimes an employer, for one reason or another, may simply not be able to deliver an employee to such a clinic. In this case, the examination can be carried out in mobile medical laboratories, which are organized on the basis of ambulances. Typically, such laboratories use certified instruments, and the ambulance teams themselves are licensed to carry out such activities.

The order of the MO procedure:

Conclusions about a person’s condition are made not only on the basis of an assessment of his behavior, neurological reactions and autonomic disorders, but also based on tests for determining alcohol in the blood, urine and saliva. Such analyzes are carried out only by methods approved by the Ministry of Health and Social Development of the Russian Federation.
In addition, indicator devices can be used to determine the concentration of ethanol in exhaled air.
The doctor conducting the examination must draw up a protocol in two copies. After this, the person being examined must read the protocol and sign.
Refusal to undergo an examination is also documented and signed by the person who refused to carry out the medical examination procedure, as well as by a medical professional. This extract from medical records can be used by the employer.
After the examination, the results of this procedure must be immediately announced.
The Ministry of Defense protocol must be handed over to people who brought an employee under the influence of alcohol to the procedure. If there are no such accompanying persons, then the protocol is sent by mail to specified address organizations.

If methods and devices that are not included in the list of approved means were used to conduct a medical examination, then the medical report is lost. legal force. If the case comes to trial, the court will not consider such a conclusion as evidence. But the medical professional who conducted the examination can still act on the side of the employer.

Now you know whether you can be fired for being drunk at work. As you can see, they can. Moreover, a bad entry in the work book about this dismissal under the article for drunkenness can become a stumbling block on the search path. new job. They may simply not want to hire such an employee for fear of repeating the drunkenness story. So it’s better not to take risks and not drink at work.

An employee came to work drunk

Full description:

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

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

Prevent or remove?

First, let’s look at the difference between the wording “prevent from work” and “remove from work,” as well as how their interpretation affects further actions. If the administration detects signs of alcohol intoxication in an employee before the start of the working day and prohibits him from starting work labor activity, we're talking about about not being allowed to work. Moreover, in some industries this point is especially important. The point is that officials may be brought to administrative or criminal liability if they allow an employee to perform work functions while intoxicated (Article 5.27 of the Code of Administrative Offenses of the Russian Federation or Article 143 of the Criminal Code of the Russian Federation). The same opinion is shared by the judges in the resolution of the Plenum of the Supreme Court of the RSFSR dated April 23, 1991 No. 1 “On judicial practice in cases of violations of labor protection and safety rules in mining, construction and other work."

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

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

In labor legislation, the concepts of “suspension from work” and “preclusion from work” are synonymous. Therefore, for convenience, we will use only one of the terms. So, according to Article 76 of the Labor Code, the removal from work of an employee who appears at work in a state of alcohol, drug or other toxic intoxication is not only the right of the employer, but also his obligation. In this case, the employee is suspended from work until all the circumstances that were the basis for his removal are eliminated (Part 2 of Article 76 of the Labor Code of the Russian Federation).

The employee will remain without salary

We, the undersigned, are the chief engineer

LLC "Stroyremtyazhmash"

Quality Control Controller of Stroyremtyazhmash LLC,

and industrial cleaner

LLC "Stroyremtyazhmash"

(full name, position, place of work)

have drawn up this act on the following:

Electrician LLC "Stroyremtyazhmash",

(full name, position, place of work)

appeared intoxicated at work

in the electrical room of workshop No. 2

He was observed following signs intoxication:

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

2) strong smell of alcohol from the mouth;

3) repeated loss of balance;

4) facial redness;

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

6) inappropriate behavior, expressed in aggressive actions against colleagues, loud performance of Russian folk songs, and an attempt to take off his overalls.

The fact of finding Sergei Kharitonovich Ugryumov

in a state of intoxication confirmed by a medical certificate

impossible because the employee refused to voluntarily undergo medical

examination.

The employee refused to give an explanation.

subject/not subject (underline as appropriate)

suspension from work until October 9, 2007.

Signatures of persons

1. Delight

2. Cheerful

3. Smekhova

Refused to sign *

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

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

The document is drawn up in two copies. It provides detailed information about emotional state employee, his behavior, speech, reactions. The presence or absence of the smell of alcohol must be noted. For a complete picture of the employee’s condition, the report must contain the results of laboratory tests. When conducting an examination, they are mandatory. But more often than not, the person being examined refuses to take tests and undergo other medical procedures. If it was not possible to persuade him, the fact of refusal will also be recorded in the act.

The employee's signature on the medical report. After completing the document, doctors must ask the employee to read it and sign it. There is no need to be afraid of the employee’s refusal or inability to sign the document. This circumstance may serve as further evidence that he is drunk.

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

For inspection - as soon as possible!

If you want to conduct a medical examination of an employee, remember that alcohol has the ability to quickly “dissipate” from the body. The sooner you organize a medical examination of an employee, the less chance he will have of escaping responsibility for his unreasonable behavior.

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

Conclusions of doctors. Based on the results of the examination, the doctor will make a conclusion. It will describe the employee's condition.

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

The result of the procedure is an order of suspension from work

The administration's decision to remove an employee from work is formalized by an order or directive from the head of the company. There is no unified form of order to remove an employee from work. It is drawn up in any form (for a sample order, see p. 87).

Dismissal of an employee

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

Dismissal in this case occurs at the initiative of the employer (clause 4 of article 77 of the Labor Code of the Russian Federation). A corresponding entry is made in the employee’s work book with reference to paragraph 6 of Article 81 of the Labor Code. This rule is specified in paragraph 5.3 of the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of Russia dated January 1, 2001 N 69.

The day of termination of the employment contract will be the employee’s last day of work (Part 3 of Article 84.1 of the Labor Code of the Russian Federation). It does not matter whether he was suspended from work or not. Such explanations are given in part 1 of paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 01.01.2001 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”. That is, you cannot dismiss an employee on a date preceding the day on which he was suspended from work.

The procedure for imposing a disciplinary sanction is set out in Article 193 of the Labor Code. In accordance with Part 3 of this article, disciplinary sanction is applied no later than one month from the date of discovery of the offense. In this case, neither the employee’s time of illness nor the period of his being on vacation is taken into account.

Also, Article 193 of the Labor Code requires obtaining written explanations from the employee before applying a disciplinary sanction to him. Having not received it, it is necessary to draw up an act (Part 1 of Article 193 of the Labor Code of the Russian Federation). After the dismissal order is issued, the employee must be familiarized with it within the next three days. The unified form of an order to terminate an employment contract with an employee (N T-8) was approved by Decree of the State Statistics Committee of Russia dated January 1, 2001 N 1. If the employee does not want to delve into the document and refuses to sign it, it is also necessary to draw up an act of refusal in accordance with Part 6 of Article 193 of the Labor Code code.

Sample order to remove an employee from work

LLC "Stroyremtyazhmash"

(name of organization)

Order N 562-k

Ugryumov Sergei Kharitonovich

(position, full name)

Reason: showing up at work while intoxicated.

Base:

Memorandum of the chief engineer;

The act of establishing the fact that an employee appeared at work in a state of intoxication caused by alcohol consumption, narcotic drugs or other toxic substances, dated 01/01/2001;

Act of refusal to give explanations.

General manager

LLC "Stroyremtyazhmash" ___________

I have read the order:

Appendix: act of refusal to sign the order.

senior scientific editor of the magazine "Salary"