Being drunk at work. Dismissal for drunkenness - procedure and features of the procedure

Appearance at the workplace in good condition alcohol intoxication- not only a misconduct that interferes with the normal operation of the enterprise, but also the basis for dismissal. The current labor legislation provides the employer with the right to dismiss his employee for drinking even if the only case such a disciplinary offence. However, the procedure for dismissal under the article for drunkenness is quite strict, and in case of its violation, dismissal can be easily challenged in court.

Dismissal under the article for drunkenness - legal regulation and norms of the Labor Code of the Russian Federation

AT Russian Federation the attitude towards alcohol is ambiguous and many do not see anything wrong with celebrating any holiday with colleagues at work with the use of alcoholic beverages. However, the current labor legislation unambiguously allows qualifying the appearance at work in a state of alcoholic, as well as other intoxication, as a disciplinary offense. Moreover, the provisions of the Labor Code of the Russian Federation unequivocally allow the employer to apply dismissal under the article for drunkenness even for a single case of drinking alcohol or appearing drunk at the workplace.

From the point of view of the law, the drinking of alcoholic beverages in itself cannot be considered a disciplinary offense. These include only the appearance at the workplace in a state of intoxication. However, in fact, alcohol consumption is the cause of intoxication and in the vast majority of cases, after drinking alcohol-containing products at work, an employee can be fired for it.

The legal regulation of this issue is considered in the provisions of Article 81 of the Labor Code of the Russian Federation. Drunkenness in the workplace is considered a gross violation. labor discipline, which is sufficient for dismissal even with a single occurrence of such an event. However, the opportunity to dismiss an employee under this article can not always be effectively implemented - the employer, in case of detection of cases of intoxication at work, should follow the established procedure as accurately as possible. Since dismissal under the article for intoxication is an extremely negative reason and is reflected in work book, the majority of employees dismissed in this way seek to be reinstated or to achieve at least a change in the wording of the dismissal through the courts.

Previously, it was possible to dismiss an employee only for being directly at the workplace in a state of intoxication. However, the current norms of the article of the Labor Code of the Russian Federation for intoxication provide for equating to the workplace the entire territory of the enterprise, as well as another territory for the employee to exercise his job duties, including on the territory of other business entities.

How to get fired for drinking at work

It is quite difficult to fire an employee for drinking at the workplace. The current labor law standards require compliance with a number of procedural actions, on the one hand, and on the other hand, they do not provide sufficiently clear and specific instructions on how an employer or a responsible employee should act if they want to fire an employee for drunkenness or appearing in a state of intoxication. At the moment, there are several possible algorithms for terminating employment contracts with such unreliable workers, each of which has its own advantages and disadvantages.

The first option involves the use of a medical examination of an employee as the main document on which the dismissal will be carried out. We will not apply this method in all situations - the employee may refuse to undergo an examination or subsequently challenge its results in court, which will automatically lead to the recognition of the entire dismissal as invalid. In general, the step-by-step dismissal of an employee for intoxication in this case is as follows:

First of all, the employer must remove the employee from the performance of work duties. Art. 76 of the Labor Code of the Russian Federation directly require this procedure to be carried out in relation to employees who are intoxicated. Suspension from work deprives the employee of the opportunity to receive wages for a given day of work, and its duration depends on the situation that led to the suspension. Thus, a one-time intoxication may well provide for a day of suspension, while a prolonged binge may provide the employer with the opportunity to suspend an employee for a longer period. It should be noted that the unwillingness to remove a drunk employee from the performance of duties may lead to the responsibility of the employer himself.
An act is drawn up on the presence of an employee in a state of intoxication. This document provides for a free form of compilation, however, it can be established by the internal regulations of the enterprise and has certain general principles preparation. The act must indicate the surname, name and patronymic of the employee, the details of the employer's enterprise, and also have a place to explain the situation, the signatures of the employee himself, as well as two witnesses capable of confirming the fact of intoxication.
Based on the act, an employee may be sent for a medical examination for any type of intoxication. Only narcologists in the overwhelming majority of cases, working in hospitals or specialized medical institutions, have the right to conduct such an examination. If it is impossible to carry out this procedure due to the lack of a suitable doctor, the doctor can also conduct an examination. general practice or a specialized mobile group of doctors.
An employee may refuse to conduct a medical examination. It is illegal to use force or other methods of pressure against him. If an employee refuses to undergo a medical examination for intoxication, this refusal must be recorded by at least two witnesses. In addition, the employee is not required to undergo an examination only in the institution indicated by the employer. He has the right to go through it in any medical institution and neither the employer nor the court can refuse to accept and consider the results of this procedure.
Based on the provisions of the survey, an order is drawn up to dismiss the employee. In this case, the employee has the right to receive a copy of the said order. In addition, after the issuance of the order, the employer is obliged to request an explanatory note from the employee, and the refusal to give explanations must be endorsed by the signatures of two other employees.
On the day of dismissal, the employer issues a work book, a certificate of average earnings, as well as compensation for previously unused vacation days and all unpaid wages. The employer can choose the day of dismissal himself - including directly on the day the medical examination is issued.

The existing judicial practice, however, demonstrates that not in every case it is possible to dismiss an employee on the basis of a medical examination.

The second option for dismissal for drunkenness is possible if the employee may refuse to undergo an examination, wish to choose another medical institution, or otherwise prevent termination employment contract. However, mandatory, according to the aforementioned jurisprudence on this issue, examination is not - in some cases, the court may take into account other evidence. The available algorithm of action in these situations is as follows:

Getting the employer information about intoxication. Such information can be obtained from other employees orally or in the form of a report.
Making a decision to terminate an employee.
Establishment of a special commission to investigate disciplinary offenses. It must consist of at least three people.
Carrying out by the commission of investigation concerning intoxication of the worker. During the investigation, relevant acts are drawn up indicating the signs of a misdemeanor - direct and indirect, as well as testimonies or other ways of fixing the misconduct - video and audio recordings.

In the future, the procedure looks the same as described earlier. This method allows you to avoid a medical examination of the employee and makes it possible to dismiss him without such a procedure.

When can an employee be fired for drinking and who cannot be fired for such a misconduct

Before formalizing the dismissal of an employee for drunkenness at the workplace, it is necessary to make sure that there is a disciplinary offense. So, there are a number of situations in which intoxication cannot be the basis for dismissal. These include such cases:

Situations when intoxication arose as a result of taking medical preparations employee on the advice or prescription of a physician.
If intoxication was the result of non-compliance with safety and labor protection and occurred for this reason. For example, in the case of an employee's contact with poisonous, toxic or intoxicating substances.
When an employee belongs to a category in respect of which dismissal is unacceptable on this basis. These categories include pregnant women and minors. A pregnant employee cannot be fired for drinking in any case - the employer can only remove her. A minor may be fired general order upon notification and obtaining consent from the labor inspectorate for minors or guardianship and guardianship authorities.
In a situation where the appearance at the workplace in an intoxicated state occurred during non-working hours for this employee time. In this case, the employer can only demand the removal of the employee from the workplace, but has no right to dismiss him.

In general, dismissal for drunkenness is considered unacceptable if the employee is not guilty of it. That is, if intoxication arose without his intent and due to circumstances beyond his control.

Other nuances of the dismissal procedure for intoxication

The employer should pay special attention to the wording of the dismissal in the employee's work book. It is necessary to indicate as the basis for termination of the employment contract, paragraphs. b, paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. Otherwise, the reason for the dismissal may be recognized as illegal and the employee himself will be able to be reinstated in the court. The use of other wording is unacceptable.

Dismissal is allowed in case of intoxication, not only when this state is caused by the influence of alcohol, but also in case of intoxication of a toxic or narcological nature. The fact of intoxication can be established by a narcologist working in a certified medical institution and having the right to conduct an examination. If an examination is carried out by an unsuitable person for this procedure, it can be challenged.

The dismissal of an employee for intoxication is a right, not an obligation of the entrepreneur, in contrast to suspension from work. If desired, the employer may not bring the employee to disciplinary responsibility, or issue him a reprimand or warning. The presence of such will allow in the future to dismiss the employee for a less serious disciplinary offense during the year.

If the employer does not want to face subsequent claims of the employee in court, it is more profitable for him to conclude an agreement with the employee for dismissal for his reason, or else to convince the employee to apply for care for own will. If the employee refuses such an offer, one should take care to collect as much evidence as possible on his intoxication and carefully follow the established procedure.

An ambulance should not be called for a medical examination. Ambulance workers medical care do not have the right to conduct an examination for intoxication, as well as the appropriate equipment. Therefore, in the event that an ambulance is called for examination, the employer may be held liable for a deliberately false call and the payment of an appropriate fine.

If necessary, the employer may call law enforcement to prevent a drunk employee from being on the territory of the organization, as well as to draw up a protocol on an administrative offense against him.

Dismissal "for drunkenness" is a rather troublesome procedure, accompanied by the publication of numerous acts, certificates confirming that the employee is intoxicated. Most personnel officers rightly fear the consequences of dismissal under this article, because for an employee an entry in the work book about the termination of the employment contract under paragraphs. "b" p. 6. Part 1 of Art. 81 of the Labor Code of the Russian Federation - a stigma for the rest working life. This is probably why the courts are considering so many lawsuits from people dismissed on this basis, about reinstatement at work or changing the entry in the work book. Properly executed documents are a guarantee that a lover of strong drinks will no longer appear in your organization.

Arguments, facts, acts

What to do if you find your employee in a deranged state at the workplace? Most HR specialists will answer that you need to run to the doctor, because. the main proof of being in a state of intoxication is a medical report. But before proceeding with the execution of a dismissal for drunkenness, it is necessary to clearly determine that the drinking of alcoholic beverages occurred at “work”, i.e. the workplace of the employee or the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function, and in working time. 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 declared illegal. So, we begin to record on paper the facts and evidence of the appearance of an employee in a state of intoxication during working hours.

Paragraph 42 of the Decree 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” (hereinafter referred to as the Decree) states that alcohol 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. Thus, a medical examination and conclusion is not the most main document when fixing the state of alcoholic intoxication. A well-written act on the appearance of an employee at work in a state of intoxication, an act of 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" p. 6. Part 1 of Art. 81 of the Labor Code of the Russian Federation, even though a medical examination as such was not carried out. Moreover, drunk workers themselves often refuse to perform medical manipulations on them.

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

The "author" of the act on the appearance of an employee at work in a state of intoxication can be any official who monitors compliance with labor discipline: from a personnel service specialist to the immediate supervisor of the employee. Regulations there is no unified form of 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:

the smell of alcohol from the mouth;
posture instability;
speech disorder;
pronounced trembling of the fingers;
a sharp change in the color of the skin of the face;
behavior that is inappropriate for the situation;
the presence of alcohol in the exhaled air, determined by technical means indications that are registered, permitted for use for medical purposes and recommended for medical examination of an employee for intoxication.

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

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

On practice

Plaintiff K. filed a lawsuit against OAO Aeroflot - Russian Airlines for recognition of the dismissal order under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation illegal, reinstatement at work, payment for the time of forced absenteeism, compensation for non-pecuniary damage. She considers her dismissal illegal, since she was not in a state of alcoholic intoxication at the workplace, due to poor health she was forced to take medicines, including hawthorn and valocordin. By the decision of the Golovinsky District Court of Moscow dated August 22, 2012, she was denied satisfaction of her claims. The appeal decision of the Judicial Collegium for Civil Cases of the Moscow City Court dated May 16, 2013 upheld the above decision.

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 in a state of intoxication in accordance with paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation.

The court found that K. during his work shift on 03.04.2012 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 GOBP OOB, a medical examination protocol for 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 examination, which she refused to pass.

Refusing to satisfy the claims, the court, having examined and evaluated the evidence collected in the case, came to the conclusion that the employer had grounds for dismissing the plaintiff on the grounds of paragraphs. "b" p. 6 h. 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 act, and did not provide evidence of taking medicinal alcohol-containing drugs during the specified period of time.

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

An employee who is in a state of intoxication must be familiarized with the act, and he must put a signature confirming his familiarization with this document. But most often it is impossible to get 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, therefore, it is impossible to familiarize him with the act on the day of drawing up.

In no case should an employee be forced to undergo a medical examination and use force if he refuses. The reason for refusing to undergo a 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 the medical examination is provided to the employee for review: he either puts his signature or refuses to sign, which should also be recorded in this document.

In addition, as evidence of an employee being at work in a state of intoxication, there may be:

testimonies of witnesses (for example, other employees of this organization, representatives of the security service);
memorandums, which also record the behavior and condition of the "guilty";
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 also confirmed by judicial practice.

On practice

L. worked as a ticket clerk and was fired under paragraphs. "b" p. 6 h. 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 in a state of intoxication). From the act dated 17.08.2011, drawn up by the head of the Kyiv direction of JSC "Central Suburban Passenger Company" K. I., as well as employees of the private security company "Fortress" M., U., it follows that at 03 h. 45 min. 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 the workplace in a state of intoxication. This condition was determined by the following signs: the smell of alcohol from the mouth, unsteady gait, cloudy eyes, incoherent speech. In accordance with an extract from the register of outpatients at the medical center of the Kyiv railway station for August-September 2011, on August 17, 2011, the doctor on duty K. M. and the paramedic V. on duty in the period from 04 h. 10 min. until 04 h 55 min. took samples for alcohol from ticket tellers L., Ya., O., Sh., G., E. with the help of the AG-1200 indicator apparatus. The alcohol test of all employees was negative. According to the act of 17.08.2011, employees L., Ya., O., Sh., G., E. refused to go to the medical examination. According to the protocol of the operational meeting with the deputy CEO on passenger transportation of OJSC “Central Suburban Passenger Company” dated 18.08.2011 No. 77 / tsook, employees Y., Sh., G., E. confirmed the fact of alcohol consumption by all ticket cashiers, cashiers L., O. disputed this fact. The court of first instance, when deciding on the case and reinstating L. at work, indicated that the medical examination conducted at the medical center of the Kievsky railway station, the fact of the consumption of alcoholic beverages by ticket tellers L., Ya., O., Sh., G., E did not confirm, the testimonies of witnesses are evaluative and inconsistent, and therefore there are sufficient grounds for bringing L. to disciplinary liability in the form of dismissal under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, the employer did not have. The panel of judges considered the conclusions of the court to be erroneous, contrary to the norms of substantive law and inconsistent with the established circumstances of the case. Giving priority to the results of the medical examination on 17.08.2011 when considering the case, the trial court did not take into account that it could not be admissible evidence, t.to. the examination was carried out with gross violations of the Temporary Instruction on the procedure for a 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, which is currently in force. According to this Instruction, a medical examination to establish the fact of alcohol consumption and the state of intoxication is carried out in specialized rooms of narcological dispensaries (departments) by psychiatrists-narcologists or in medical institutions by psychiatrists-narcologists and doctors of other specialties who have been trained, both directly in institutions, and with departure in cars specially equipped for this purpose. The sequence of actions of the doctor on duty K. M. and the on-duty paramedic V., the procedure for conducting a medical examination and processing documents do not meet the above criteria, respectively, an extract from the journal cannot be a sufficient basis for concluding that L. has no signs of intoxication on 17.08.2011. The testimonies of witnesses who are not in official or other dependence on the defendant, warned of criminal liability, are fully consistent with the testimonies of the employees of JSC "Central Suburban Passenger Company"<…>and in conjunction with the acts of 08/17/2011, the protocol of the operational meeting of 08/18/2011, other written materials of the case confirm the fact that L. was intoxicated on 08/17/2011. Taking into account the above evidence, the panel of judges 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 (appellate ruling of the Moscow City Court of July 26, 2013 No. 11-23618 / 2013 ).

Suspension from work

An employee who is in a state of intoxication must be suspended from work. This requirement for the employer is specified in Art. 76 of the Labor Code of the Russian Federation, because if the employee was not suspended from work, the manager is held liable for the consequences that arose in connection with the performance by the employee of labor duties in a state of intoxication. The same article of the Labor Code of the Russian Federation also presents the procedure for dismissal from work.

Suspension from work is formalized by order (instruction) of the head of the department to which the employee belongs, or the head of the organization (see Appendix 2). Despite the fact that upon dismissal under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, it does not matter whether such a suspension was actually made, the presence of a corresponding order along with other documents will be an additional basis proving the position of the employer, according to which the employee was in a state of intoxication.

Dismissal as a measure of disciplinary action

All of the above acts, a medical report, memos serve as the basis for imposing a disciplinary sanction on an employee who appeared at work in a state of intoxication. Application procedure disciplinary actions presented in Art. 193 of the Labor Code of the Russian Federation. Recall the basic rules:

disciplinary sanction is applied no later than one month from the date of discovery of the misconduct. At the same time, neither the time of illness of the employee, nor the period of his stay on vacation are 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 misconduct and the circumstances under which it was committed must be taken into account. Therefore, you should not immediately, without understanding the situation, dismiss the employee. If he is responsible, competent, and his misdeed did not lead to serious consequences, perhaps it makes sense to confine ourselves 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. An employee is fired under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, and already in litigation about reinstatement as an argument for illegal dismissal, the former employee refers to the fact that the head did not even take an interest in 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. In order to protect yourself from such false accusations in the future, it is recommended to require the employee to explain being drunk by giving him a written notice (see Appendix 3), which should also indicate the period (two working days) during which an explanatory note should appear from an employee. If, after two working days, he does not provide the specified explanation (or refuses to deliver the notification), then it is also necessary to draw up an appropriate act (part 1 of article 193 of the Labor Code of the Russian Federation).

The written explanation of the employee is an important document that the courts take into account when deciding on illegal dismissal for appearing at work in a state of intoxication, which is confirmed by judicial practice.

On practice

By order of May 29, 2012 No. 3-111 / 1L, the foreman of construction and installation works K. was brought to disciplinary liability in the form of dismissal under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation in connection with a single gross failure to fulfill their official duties, expressed in the appearance of K. at the workplace in a state of intoxication 05/24/2012. K. filed a lawsuit against INDASTEK ENERGOSTROY LLC to recognize the dismissal order as illegal, to reinstate him at work, to recover wages for the time of forced absenteeism in the amount of<…>rub., compensation for non-pecuniary damage in the amount of<…>rub.

K. considers dismissal under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation 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 follow the procedure for its application, established by Art. 193 of the Labor Code of the Russian Federation. Resolving the stated requirements, the court of first instance concluded that the employer had grounds for terminating the employment contract with the plaintiff on the grounds of paragraphs. "b" p. 6 h. 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 premises of the foreman at the site in the village. Sivaki was at the same time in a state of intoxication.

This conclusion of the court is confirmed by the act dated 05.24.2012 No. 3, drawn up by the foreman of the site S. E. (case sheet 93 volume 1), which reflects the signs of the plaintiff's intoxication - the smell of alcohol, impaired coordination of movements, instability of posture, as well as an act of medical examination of the plaintiff dated 05/24/2012 for alcohol intoxication, compiled by the paramedic of the ambulance of the hospital of the village. Sivaki M., confirming the fact of K.'s alcoholic intoxication, with which the plaintiff was acquainted on May 24, 2012, had no comments on the act (case file 97 volume 1). Plaintiff did not present any evidence to refute the conclusions of the court. The plaintiff does not appeal against the decision of the court in this part.

Checking the procedure for dismissal of 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 - written explanations of the circumstances of the committed disciplinary offense were not requested from the employee. Thus, the court found that the plaintiff was asked on May 24, 2012 to give an explanation for the fact of being in a state of intoxication at the workplace on May 24, 2012 (case sheet 108 volume 1). The court did not accept as evidence the act of the plaintiff's refusal to give a written explanation on the fact of appearing at the workplace in a state of intoxication dated May 26, 2012, concluding that May 26, 2012 was a day off, therefore the act could be drawn up by the defendant no earlier than May 29 2012, and since such an act was not drawn up, there is a violation of Art. 193 of the Labor Code of the Russian Federation.

However, the panel of judges could not agree with this conclusion of the court, since it contradicts the materials of the case. Thus, the court, resolving the claims made by the plaintiff, did not take into account the act dated 05.24.2012 No. 3 on the employee being in a state of intoxication at the workplace, in which K. explained this by the fact that he “rested” (case sheet 93 volume one). The plaintiff signed this act, and he did not have any comments on the act. The plaintiff did not challenge the content 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 May 29, 2012, two working days had passed (May 25 and 28, 2012) from the moment the plaintiff received a request for a written explanation - May 24, 2012 , the plaintiff did not provide an explanation, 28.05.2012 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 on the circumstances of being in a state of intoxication on May 24, 2012, indicating in the act of May 24, 2012 No. 3 that he was resting. Despite the plaintiff's explanations 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 26.05.2012.

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

Since, during the consideration of the case, it was confirmed that K. was in a state of intoxication at the workplace during working hours, the judicial panel came to the conclusion that the satisfaction of the requirements for recognizing the dismissal order as illegal, reinstatement should be refused, since the employer provided evidence, confirming the commission of a disciplinary offense by the plaintiff. The measure of disciplinary punishment in the form of dismissal by the employer was chosen taking into account the severity of the misconduct and the circumstances in which it was committed (the appeal ruling of the Moscow City Court dated May 30, 2013 in case No. 11-13442).

The order (instruction) of the employer on the application of a disciplinary sanction (in this case, this is an order to dismiss) is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee was absent from work.
The form of the dismissal order depends on the rules of the document flow of a particular organization. According to federal law dated 06.12.2011 No. 402-ФЗ “On Accounting”, forms of primary accounting documents contained in albums of unified forms of primary accounting documentation, approved. Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1 are not mandatory for use from January 1, 2013. In Art. 9 of this law provides that the forms of primary accounting documents are approved by the head of the economic entity upon submission official in charge of managing accounting. Therefore, organizations have the right to use the forms of primary accounting documents developed by them independently. All required 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 application of the usual unified forms. Therefore, if it is more convenient for an organization to fill out unified forms, approved. By the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1, they can also be used, having previously approved these samples by order of the head of the organization. An example of drawing up an order to dismiss a unified form No. T-8 is given in Appendix 4.

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

Only after the above actions have been completed, an entry can be made in the employee's work book about the dismissal under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation (see Appendix 5), with which the dismissed person should be familiarized against signature, and it will be possible to part with the drinker.

Attachment 1

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

Appendix 2

Sample letter of dismissal from work

Appendix 3

Sample notice to an employee about the need to provide a written explanation of the appearance at the workplace in a state of intoxication

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 work book of an employee about dismissal under paragraphs. "b" paragraph 6 of the first part of Art. 81 of the Labor Code of the Russian Federation

E Catherine Roschupkina- expert of the magazine "Kadrovik"

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

When can a drunkenness investigation be held?

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

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

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

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

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

How to fix the state of intoxication correctly

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

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

Interesting Facts

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

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

Step-by-step procedure for filing a dismissal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some facts

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

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

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

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

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

Conclusion

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

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

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

To get a lawyer's comment - ask questions below

Dismissal under the article for drunkenness is a procedure, albeit a dreary one, requiring the preparation of many documents, but necessary. This is a guarantee that a drinker will no longer be able to work for you. Yes, and other employers will warn against his employment. But you need to formalize the state of “dizziness” correctly, because the judge did not see what happened with his own eyes, which means that he may not believe you if the sober one in the morning grabs his head and demands reinstatement at work.

Legal grounds for dismissal for drunkenness

If the culprit is caught drunk at work, even if for the first time, he is threatened with dismissal under the article. The Labor Code directly allowed to part with such workers under Article 81.

Attention!

Resolution of the Plenum Supreme Court dated 03/17/2004 indicates that intoxication, both alcoholic and other types, must be approved by the employer . And confirmation can be not only a medical certificate, but also other documents that the court will evaluate.

Although the article allows dismissal for drunkenness at the workplace, it does not comment on the procedure and the documentary component, but at the same time there is judicial practice from which you can draw good grounds for dismissal.

Where to begin

The personnel officer must somehow find out about the insanity of the employee. About this he can
inform, for example, the head of the department or workshop where the culprit works. That's why the first document will be:

or a memorandum;
or an act of insane state of the employee.

Most personnel officers think that the only proof of intoxication is only a medical report. But You have no right to force anyone to undergo an examination procedure! What then to do in case of refusal?

In the above-mentioned Resolution of the Plenum of the Armed Forces, it is not without reason that the norm is fixed that not only a medical certificate can serve as evidence of intoxication, but also other documents. Other documents include.

Now you need to draw up an act specifically for the employee. You can borrow the sheet.

Attention!

Nuance: before starting the execution of all documents, make sure that the culprit is not on vacation, not on time off, not on sick leave, but at his workplace is seen drunk. And exactly at the time when, according to the schedule, he is obliged to work.

If you have a memorandum in your hands, then the act is drawn up on its basis. At the same time, having received a report, you immediately print out the form of the act and go to draw it up at the “crime scene”.

Keep in mind that when drawing up the act, you must indicate all the signs of intoxication that the culprit has. Such signs, according to the norm of the order of the Ministry of Health of July 14, 2003, can be:

alcoholic ambre from the mouth;
instability of postures;
speech disorder;
tremor (trembling) of the hands or fingers;
red spots on the face;
alcometer readings.

The deed must also include:

exact time (up to minutes) and date of drawing up the act;
place (building, department, office);
Full name and position of the author of the act;
Name and position of those present at the compilation (2-3 people are enough);
signatures.

It may also happen that the employee did not drink vodka, as it seemed to you, but alcohol-containing medicines. But he himself must prove this - show the prescription, for example, medical recommendations and a vial of medicine.

Suspension from work

When the act is drawn up, by order or order of the director on the basis of this act, the employee must be removed. This requirement is directly contained in Article 76 of the Labor Code. After all, being in an insane state, the culprit can do such things, for which the director himself will bear responsibility.

The order of suspension, although not necessarily attached to the acts, but will serve as additional proof that the employer is always on the side of the law!

Sample order.

We demand an explanation

During three days from the moment the act is drawn up, explanations must be obtained from the culprit. Perhaps the director will meet the delinquent if he considers the offense not so serious. Especially, being fired for drinking at work is the right of the boss, but not the obligation.

We give the notice to the employee under an autograph. Be sure to indicate that an explanatory note about the reasons for intoxication should lie on the director's desk in a maximum of two days.

Attention!

Together with the delivery of the notice, familiarize the culprit with both the act and the order of removal! He does not want to get acquainted - draw up an act of refusal.

We impose a penalty

If the explanations did not satisfy the director, we prepare an order on discipline. There is no unified form, so you can use it.

We will definitely introduce the perpetrator with the order within three days.. As soon as the order is ready, you have a month under Article 193 of the Labor Code to prepare a dismissal order, while sick leave or vacation are not included in this period.

We dismiss and issue labor

On the basis of a disciplinary order, we are preparing an order T-8. After all these actions, you need to capture the dismissal under the article for drunkenness with an entry in the work book. You need to write strictly according to the text of the TK. . We acquaint you with the order and with the entry in the dismissed worker and issue a book against signature.

On this, such a procedure as dismissal under the article for drunkenness ends.

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

Subparagraph “b” of the sixth paragraph of Article 81 of the Labor Code of the Russian Federation, which was edited in 2006, states that drunk attendance at work means that an employee is in such a state not only directly at his workplace, but also in general on the territory of a company or other facility , where he carried out the instructions of the leadership.

The drunkenness itself not a legal, but a medical term. Its signs can be, for example, reddening of the skin of the face, a change in pulse, tremor of the hands, the presence of an obvious smell of alcohol from the mouth, slurred speech. However, much of this can occur in a person with high temperature or as a result of medication. This should also be taken into account.

In what cases is it possible?

The law provides for the possibility dismissal of an employee even after his one-time exit to work drunk, as this is a serious misconduct leading to a breach of labor obligations. But the head can reduce not always and not all employees who are in such a state.

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

The employer does not have the right to terminate the contract with a pregnant woman, even if she came to work in a drunken state. According to article 261 of the Labor Code, a pregnant woman can be fired only in the event of the liquidation of the enterprise.

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

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

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

Options for the development of events

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

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

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

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

How to fix drunkenness?

To draw up an act proving the presence of a subordinate in a state of intoxication, the employer must convene a commission of at least three people. It may include the immediate head of the structural unit, a lawyer and a specialist responsible for safety and labor protection.

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

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

The first required document- this is an act indicating that a person was in a state of intoxication at the workplace. The form of drawing up the act can be arbitrary, but it must indicate the date, the data of the employee and his position, the degree of intoxication, the period of suspension from work, at the end the manager and witnesses sign.

Another mandatory proof is a medical report signed by medical specialists. Also, the employee must, upon subsequent appearance at work, give explanations, that is, write explanatory note. All of these documents are transferred for storage to the personnel department. The manager may require them for consideration in order to decide on the punishment of such an employee.

Procedure for issuing an order

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

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

In the event of a final decision to dismiss an employee, an order is drawn up. It indicates the date, then the document is assigned a number. All information about recruitment, transfers, qualifications is also indicated, be sure to specify the specific reasons for dismissal and a link to the article in Labor Code RF.

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

Other types of employee punishment

Exist various options penalties that an employer may apply. It:

Dismissal.
Comment.
Rebuke.

When choosing a sanction should be guided by how the employee was characterized for the duration of the organization. If he showed himself well, he had no other disciplinary sanctions, then you can agree to terminate the contract by mutual agreement of the parties. An entry in the work book about dismissal under this article can have a very negative effect on a future career.

The employee may try to prove in court that the procedure was carried out illegally. If there is insufficient evidence, then it is better for the employer to apply more soft way punishment - reprimand or remark.

Drunkenness, being in a state of intoxication is a very serious disciplinary violation at work, for which punishment is provided. Even a single appearance of an employee drunk gives the manager the right to fire him. An entry must be made in the employee's work book, which practically crosses out his career. But all this requires such evidence as, for example, a medical examination. An act is also drawn up in which the state of the subordinate is recorded. For this, witnesses are required.