How to fire an employee for drunkenness. Dismissal for the appearance of an employee at work in a state of alcoholic intoxication

Hello! In this article, we will talk about the dismissal of an employee for drunkenness.

Today you will learn:

1. What is the procedure for dismissal for drunkenness;
2. At what time it is impossible to dismiss for this;
3. How to fix 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 become simply illegal. How to do everything right and avoid a negligent employee going to court, let's talk today.

Peculiarities

The issue of the dismissal of underage employees caught using intoxicants is resolved with the participation of the Commission on Juvenile Affairs.

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

Dismissal registration

If the manager decides to terminate the employment contract, an appropriate order must be drawn up. There is nothing difficult in drawing it up, the main difficulty is one - to familiarize the employee who will be fired with it against the signature.

The order is entered into the personnel register.

After these procedures, the final calculation is made. Pay wages and vacation pay. At the same time, for the period while the employee was suspended from work, money is not credited. The amounts that were paid must be recorded in the accounting documents.

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

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

How proportionate the offense and the penalty

The judiciary does not always consider dismissal to be a proportionate penalty for appearing in the workplace. drunk... Therefore, the employer should not only take explanations from the employee, but also take into account what his behavior was before the offense, how he treated the work in general, and only then make a decision.

Let's consider an example judicial practice for this situation.

Example. The court of the city of T. recognized that the dismissal of citizen O. from work for appearing in work time drunk is illegal, because:

• Citizen O. worked at this enterprise for more than 10 years;
• Never violated labor discipline before;
• After 3 years, citizen O. must retire;
• O.'s behavior did not entail any negative consequences.

Thus, before dismissing an employee, assess the situation, make sure that all the conditions for dismissal are present, so that later you will not be sued in court. Be sure to consider the employee's profile when making a decision.

How to avoid getting fired for drunkenness

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

• Discuss the possibility of imposing another penalty at the discretion of the employer;
• Quit by on their own.

Even in the event that 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 consume alcohol, he may not be fired at all.

You can make another penalty, for example, to deprive the bonus for a certain%.

Although the most suitable is the second option. In this case, the employer does not need to engage in 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 guilty, he can challenge this decision in court within 1 month from the date of dismissal.

When applying to the court, the dismissed employee encloses copies of the documents drawn up by the employer, as well as present the testimony of witnesses who will confirm his innocence.

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

Conclusion

In conclusion of today's conversation, I would like to give several recommendations for both employees and employers: 150-200 grams of alcohol drunk during working hours are clearly not worth losing your job and ruining your reputation for this.

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

If an employee showed up to work drunk or abused during the working day, it is better not to ignore it. Even if this happened for the first time, it is worth conducting a preventive conversation for preventive purposes. Otherwise, this fact will be considered unnoticed and will entail repetition. Binge drinking in the workplace will progress, negatively affect the atmosphere in the team, and perhaps other employees will begin to follow the example. If such an immoral person appears at work, it is necessary to suppress her illegal actions.

There is an article in the Labor Code, thanks to which the employer can dismiss an employee for one appearance at work drunk.

Explanatory - this is the first warning, which can be the last. Consider the procedure for dismissing an employee in accordance with the Labor Code.

How to fire an employee for drinking in the workplace

Dismissal of an employee is possible only when he was noticed in a state of intoxication directly at his workplace, on the territory or at another facility where he was directed by the employer (on a business trip, at a branch of the company, at the customer's facility). If he is seen in a state of intoxication outside his working hours, then you can limit yourself to a warning. In the case of irregular working hours, it is already more difficult. If an employee drank on the territory of the enterprise at a time when he should not be there, then no court will find him guilty. Even if he drank before the start of the working day and was detained for checkpoint, this is also not considered a reason for dismissal. You cannot fire a minor employee without the consent of the state labor inspectorate and the commission on juvenile affairs. It sounds rather strange, but a pregnant woman in a state of alcoholic intoxication cannot be dismissed from the case according to the article of the Labor Code. The Labor Code stipulates how to fire an employee and how he can protect himself when he is fired.

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

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

How to correctly record the state of intoxication of an employee

The immediate supervisor of an employee who appears at the workplace in a drunken state, or any colleague, informs the head of the company or the acting officer about the fact of the violation. A commission is appointed to conduct an official investigation, which draws up an act and sends it for medical examination.

Drawing up an act upon dismissal for drunkenness

The act of being drunk at work will be evidence of the revealed fact in court. But the Labor Code does not explain how to do this correctly. So, we act ourselves: we find a sample on the Internet and adjust it for our case, thus fixing the intoxication. It must be remembered that if the dismissal procedure is carried out incorrectly, the employee can sue the employer. Record in the work book about dismissal under sub. "B" clause 6 of Art. 81 of the Labor Code of the Russian Federation can put an end to not only a future career, but also the possibility of finding a job in the future. Therefore, the employee will try with all his might to challenge the fact that he was fired for drunkenness.

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

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

Often, an employee for whom a dismissal order is being prepared refuses to undergo a medical examination. Be sure to record this in the act. According to the Labor Code of the Russian Federation, it is not the duty of employees to undergo a medical examination for alcohol intoxication; it is impossible to force him to do this by law. And this procedure is paid. Send the employee for examination to a specialist and the initiator will have to pay for it. If signs of intoxication are detected, you can try to recover damages from him in the future. Send the offender to the procedure to determine the degree of intoxication faster, because the symptoms can disappear within a few hours. As a result of the visit to the doctor, a protocol will be drawn up in the form No. 155 / y, the conclusion of which gives the right to dismiss according to sub. "B" clause 6 of Art. 81 of the Labor Code of the Russian Federation.

An order of dismissal is prepared, signed by the head of the company, and the employee is immediately suspended from the work performed. A sample order can be found on the Internet. During the period of clarification of the cause of the condition that has arisen, the employee will be considered not at the workplace. This is a kind of insurance for the employer against unnecessary costs. Working time after suspension from work for drunkenness is not paid and is not included in the vacation period. To ensure that everything is 100% legal, make an entry in the timesheet with letter code"NB" or numeric code "35". This will be the basis for non-payroll.

According to the Labor Code, the manager is obliged to remove a drunk employee from work. The behavior of a person under the influence of alcohol is unpredictable. If you do not take action, the drunk can harm himself or another worker with possible death. In this case, the leader may be held criminally liable. It is worth protecting yourself.

How to punish an employee for drunkenness in the workplace

If a drunk worker behaves aggressively, tries to use force, feel free to call the police or an ambulance. After drawing up the documents described above, a decision is made what will be the next step - dismissal for drunkenness or forgiving a negligent employee. If the decision to say goodbye to the employee is firm, then an appropriate entry is made in the work book. It is prescribed that the employment contract was terminated at the initiative of the employer in connection with the appearance at the workplace in a state of alcoholic intoxication, the article of the Labor Code is indicated, on the basis of which this happened.

According to the Labor Code, on the day of dismissal, the employer must pay off the wage and unused days leave and give him a work book. Naturally, in this case, severance pay is out of the question. When an employee in a state of intoxication behaves peacefully, but the expediency of dismissal is obvious, it would be better to agree with him about dismissal by agreement of the parties.

The best prevention of binge drinking in the workplace is advocacy healthy way life. This primarily concerns the habits of celebrating holidays, birthdays, personal events. And nowadays, many companies have vetoed alcohol. You can celebrate a celebration at work, but only with soft drinks and sweets.

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The appearance of an employee at the workplace in a state of alcoholic, narcotic or other toxic intoxication is an unconditional reason for dismissal (subparagraph "b" of clause 6, part 1 of article 81 of the Labor Code of the Russian Federation). However, such a dismissal must be formalized correctly. Otherwise, the employee will have the opportunity to recover at work and even receive compensation for forced absenteeism.

Under the basis specified in sub. "B" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation, covers employees who appeared drunk at their workplace during working hours or on the territory of the employing organization or facility where, on behalf of the employer, the employee was supposed to perform a labor function. In accordance with clause 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 "On the application by the courts Russian Federation Of the Labor Code of the Russian Federation "on this basis, employees who were at the place of performance during working hours may be dismissed. job responsibilities(for example, on a business trip in another city) intoxicated. In this case, it does not matter whether the employee was removed from work in connection with the specified condition.

Termination rules employment contract

Terminate the employment contract with the employee according to sub. "B" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation - in the case of a single gross violation an employee of labor duties, namely, his appearance at work in a state of alcoholic, drug or other toxic intoxication - is possible only if certain conditions are met. Namely, the employer must have irrefutable evidence that the employee was drunk at work.

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

Then the fact of the employee's appearance at work drunk must be documented.

The drunken state of an employee or drug or toxic intoxication can be confirmed by a medical report, an act, an order on suspension from work, or witness testimony. From these documents it should be clear on what grounds the drunken state of an employee is determined. That is, the named documents must contain informational characteristics of a person who is intoxicated. This can be the smell of alcohol in the exhaled air, impaired coordination of movements, instability, staggering gait, incoherent speech, aggressive behavior, facial flushing, and a number of other signs.

Note!

To draw up an act on the finding of an employee in a state of alcoholic intoxication, it is advisable to involve persons who are not directly related to this employee in the work (that is, they are not his subordinates, colleagues, direct management) as witnesses.

An act fixing a state of intoxication can constitute and immediate superior the dismissed, and the head of the enterprise, and the person responsible for the admission of a particular employee to work. And witness testimony can be recorded in memoranda and other similar documents.

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

After that, within a month from the day the misconduct was discovered (this period does not include the time of illness and vacation of the employee), the head of the organization decides what penalty to apply to the employee.

Important!

Upon dismissal by sub. "B" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation, the employer must take into account the compliance of the severity of the disciplinary offense with at least disciplinary liability in the form of dismissal: to what extent the state of intoxication affected the performance of the employee's labor function. This can be expressed in the fact that the employee has created a threat to himself and third parties.

If a decision is made to part with an employee, it is necessary to prepare a memo addressed to the manager who has the right to accept and dismiss employees, with a description of the employee's disciplinary offense, a draft order for his dismissal according to sub. "B" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation. A full package of documents must be attached to the memo and order:

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

Medical examination protocol;

Order (order) on suspension from work.

As already mentioned, this ground also provides for dismissal for appearing at work in a state of narcotic or other toxic intoxication. Therefore, if an employee shows up for work with signs of other, non-alcoholic intoxication, the procedure will be the same. In the corresponding act, it is also necessary to describe the state of intoxication of the employee.

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

Toxic intoxication in general resembles alcoholic intoxication - the same impaired coordination, redness of the skin. But at the same time characteristic features are swelling of the nose, shortness of breath, trembling of the head, dilated pupils.

Procedural points

Dismissal on sub. "B" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation refers to the type of disciplinary sanctions, therefore, it is necessary to follow the procedure for applying penalties in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

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

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

In this case, we are talking about dismissal for a committed disciplinary offense (part 2 of article 192 of the Labor Code of the Russian Federation). Here is the required algorithm.

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

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

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

4. We are preparing a memorandum on the commission of a disciplinary offense by the employee. A sample memo is provided on p. 101.

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

4. We issue a dismissal order in the form No. T-8 (approved by the decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1). We give the employee to get acquainted with this order against signature within three working days from the date of publication. If the employee refuses to familiarize himself with the order, we draw up an appropriate act. A sample dismissal order is given on p. 104.

5. We make an entry in the work book about dismissal in connection with a single gross violation of labor duties: appearance at work in a state of alcoholic intoxication (subparagraph "b" of clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation) and the employee's personal card (form No. T-2). An example of an entry in a work book is given on p. 105.

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

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

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

Please note that Rostrud, in a letter dated 01.06.2011 No. 1493-6-1, said that in order to register a dismissal for committing a disciplinary offense, it is enough to issue an order to terminate an employment contract in form No. T-8, in which a memorandum and explanatory notes are indicated as the basis. employee. At the same time, the Federal Service

acknowledged the established practice of issuing two orders, on the application of disciplinary sanctions and on dismissal, which do not contradict the law.

What else you need to remember

Termination of an employment contract with an employee under sub. "B" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation is made at the initiative of the employer.

Drunkenness is a controversial and unpleasant reason for dismissing an employee. The fact of being drunk at the workplace will have to be proven. It is difficult to find out about drinking alcoholic beverages and intoxication. You will need witnesses, medical certificates, evidence about the workplace, time, and other nuances. It will not be possible to facilitate the unpleasant procedure, because it is illegal to force the offender to undergo a narcological examination.

Many leaders prefer to solve the problem peacefully and quickly, offering to write a statement of their own free will. In the event that dismissal under the article for drunkenness is inevitable, the law requires full compliance with the established norms. If any controversial issues arise, the employee has the right to go to court by filing a claim for illegal dismissal... Violation of the requirements of the Labor Code serves as the basis for the reinstatement of the employee in office, payment of compensation.

According to the Labor Code of the Russian Federation, the employer can terminate contract of employment v unilaterally in case of gross violation of his duties by an employee. The rules governing the right of a leader to dismiss under the article for drunkenness are enshrined in Art. 76 (paragraph 3), 81 part 1 (paragraph 6). Even a one-time drunk job can result in dismissal.

The law considers intoxication not only alcohol intoxication. The basis for termination of an employment contract is a change in the psychological, behavioral functions of an employee caused by any toxic effects, incl. narcotic. The sanction is applied not for drinking alcohol during working hours, but for the fact of intoxication.

Dismissal is considered legal (subparagraph "b" of clause 6 of article 81) if during working hours the employee:

• appeared at a fixed workplace drunk;
• is drunk on the territory of the enterprise;
• in a state of intoxication began to work on a business trip or at the facility where he was sent on behalf of the head.

The state of intoxication is accompanied by the loss of a real assessment of what is happening, various physiological and psychological disorders. Therefore, the Law provides for the right of a manager to terminate a contract with a drunkard in cases of disclosure of any secret (official, commercial), personal information about employees, the danger of the consequences of a safety violation.

The Labor Code enshrined the rights of not only the employer, but also the employee.

In case of disagreement with the dismissal, the latter must apply to the court within one month after receiving the work book or order (Article 392).

What is considered a workplace and working time?

Starting to prepare an order, the manager must remember: dismissal under the article for drunkenness closes career employee. Legal practice shows that dismissed employees go to court in most cases. Demanding the cancellation of the order, they try to prove their innocence. Inaccuracies in the execution of documents confirming the fact of violation of the Labor Code serve as the basis for an acquittal. Therefore, knowledge of the nuances proper preparation documents will help you avoid mistakes.

The key issue in the evidence base is the issue of workplace and time. Dismissal under the article for drunkenness is possible only in one case - if the intoxication was a consequence of the use of alcohol or drugs directly at the workplace assigned by the order. The concept is interpreted as follows:

1. The employee must be assigned a space to perform work duties during the established working hours. The stationary point is the machine desk, greenhouse, cash desk, shop counter, other places.
2. A workplace is a transport, conveyor, any other equipment, for the movement and operation of which a specific employee is responsible: driver, dispatcher, operator, worker, etc.
3. The concept of the territory of an enterprise means a dedicated place for a factory, office, warehouse, pharmacy, etc.
4. The area of ​​responsibility assigned to the employee: a section of railway tracks, forest land, roads, residential buildings, etc. Employees who walk around the territory can be dismissed under Article 81: inspectors, foresters, controllers, and other employees. Be sure to have an approved instruction, report card or outfit.
5. A workplace is considered to be any object where the employee is sent on behalf of the manager, as well as a business trip.

The Labor Code obliges managers to set boundaries for working hours and lunch breaks. Recorded drunkenness of an employee only during this period of time serves as the basis for a violation order labor discipline followed by dismissal.

If the punishment follows the appearance of drunk after work, the court will declare the decision of the management unlawful.

What degree of inebriation can lead to dismissal?

The reason for dismissal cannot be the fact of drinking alcoholic beverages... For this violation, you can be suspended from work, reprimanded. Only the state of intoxication of an employee recorded during working hours is considered legal basis to draw up an order. The first thing to do is prove your blood alcohol concentration.

Doctors carry out the examination of the degree of intoxication. To diagnose the first stage, it is enough to identify 0.5 ppm.

Article 81 of the Labor Code of the Russian Federation does not apply to the following categories of citizens:

1. Minor workers. The issue of punishment is decided jointly with the commission on juvenile affairs.
2. Pregnant women. The punishment for violation of labor discipline in this case is explained by Art. 192 TC.
3. Workers who are intoxicated due to circumstances and through no fault of their own. For example, due to a violation of safety rules, a state close to intoxication was caused by poisonous vapors, evaporation of ether, solvents, and other substances.
4. Employees taking non-narcotic drugs that cause symptoms of inebriation.

How is drunkenness recorded?

The fact of the employee's drunken state is recorded in a memorandum. The document is addressed to the employer or the head of the department in order to inform about the incident. The created commission starts further measures.

First of all, an examination is carried out, which is carried out by a health worker. If the offender does not agree to go through the procedure, the refusal is recorded in an act that reflects the following:

• Full name of the employee who violated labor obligations;
• name, details of the organization;
• time of sending for examination;
• the time of refusal from the survey;
• Name and signatures of two witnesses confirming the refusal;
• signature and position of the employee who drew up the act.

Objections are described in a separate explanatory note.

How to avoid getting fired?

There are two ways to get away from the unpleasant procedure and its consequences:

1. Ask the manager for another punishment (deprivation of bonuses, benefits, reprimand, etc.). The decision is made by the employer, who may not dismiss under the article even if all supporting documents are available.
2. Resign at personal request. Typically, the manager grants the request and signs the statement.

Step-by-step dismissal

To comply with the law in the procedure for dismissal for drunkenness in the workplace, it is necessary to know the sequence of the established legal rules, to exclude the possibility of error. Articles 193 and 81 of the Labor Code, comments to the articles describe the established norms for disciplinary sanctions. The suspicion must be confirmed by two employees from other departments of the enterprise. You will need the help of the legal department and a health and safety representative.

1. Suspend a drunk employee from work, referring to Art. 76 and 81 of the Labor Code of the Russian Federation. In case of untimely action, responsibility for the result of the behavior of the perpetrator is assigned to the employer (Article 81).
2. Draw up an act on the presence of a drunk employee in the workplace, describing the symptoms of intoxication.
3. Take an explanatory note written by the hand of the offender. The employee's refusal is formalized in a separate act.
4. Send for examination to a narcological dispensary or call a special team of doctors with necessary equipment... The law prohibits emergency doctors from performing this procedure. Confirmation of the fact of intoxication should be carried out quickly, because over time, ethanol is absorbed by the body. Tests may not show the presence of alcohol in the blood.
5. An explanatory note is drawn up by the employee in a sober state, but no later than two days after the incident. The 48-hour rule applies to the employee's refusal to write an explanatory statement, which is drawn up not at the time of refusal, but after the specified time.
6. The prepared documents are handed over to the employer for the issuance of an order (form T-8). Three days are allocated for familiarization with the order, delivery of a copy. A separate clause specifies all documents of the investigation under the column "grounds".
7. All actions must be performed within a month. After the expiration of the period, the order is null and void.
8. Issue a record of dismissal under the article for drunkenness in the work book.
9. On the day of dismissal, the employee must write an application for the issuance of a work book, all documents in the case.
10. The final payment is made by the accounting department.

Payments and compensation

The Labor Code of the Russian Federation (Article 140) requires payment of settlement funds upon the dismissal of any employee. But the Law stipulates special conditions for persons dismissed under Article (Article 181.1). This category of workers is not provided with compensation and other types of payments.

How to dispute?

The right to challenge the dismissal order under the article for drunkenness is assigned to the employee by the Law (Article 392 of the Labor Code). The decision can be appealed in court by filing an application no later than one month after receiving the work book and the issued order. Documents received upon dismissal are attached to the claim.

The plaintiff has the right to provide witnesses on his part and documents confirming his innocence. Having considered the case, the court will issue an objective opinion.

Suspension from work

Correctly formalized suspension from work is one of the factors in the recognition by the court of the legality of the manager's decision. Three nuances, stipulated by the Labor Code (Articles 76, 229), require attention.

1. Suspension is the first mandatory action employer.
2. For the category of employees who are allowed to work after talking with a doctor, a medical examination is carried out before starting work.
3. At emergency, damage to the company or injury, a drunk employee is sent to the hospital without fail.

Can an innocent person be fired?

A drinker is always at risk of receiving an offer from an unscrupulous employer to write a statement and leave of his own free will. The argument is the threat of dismissal under the article for drunkenness. Usually, intimidation is a word that has no continuation. Leaders are aware of the complexity of the issue, the paperwork, the human right to go to court, which will expose the fraud.

In the event that the order of dismissal is still issued, it is worth starting the fight for reinstatement at work. Having applied to the court, the applicant's position will be supported by testimony and the absence of a medical report on intoxication. The trial of such situations ends with the reinstatement of the employee in office and the issuance of a decision on compensation.

The manager is obliged to pay compensation in the amount of wages from the moment of dismissal. The applicant has the right to claim monetary compensation for vacation and non-pecuniary damage.

Experienced lawyers argue that theoretically it is possible to fire an innocent person. But in practice, such cases end in ninety-nine cases out of a hundred with the victory of the employee who applied to the court.

Your Narcologist warns: If drunkenness in the workplace entailed negative consequences

Alcohol is a psychoactive substance that inhibits the central nervous system. British professor, world-renowned neuropsychiatrist David Nutt compiled a scale of dangerous recreational drugs. He thinks alcohol is stronger than drugs. Therefore, a drunk worker is dangerous for the company and colleagues.

Inappropriate behavior can lead to an emergency. Violation of labor discipline requires an investigation, taking measures in accordance with the Law. The manager is responsible for the actions of an employee who works in a state of intoxication. Therefore, you should not create problems for yourself, trouble at work, ruin your reputation.

Dismissal for appearing at work while intoxicated is regulated by the Labor Code of the Russian Federation and other regulatory legal acts.

The practical implementation of this type of dismissal is widely represented in judicial practice.

Drunkenness causes significant harm to health and work efficiency. According to statistics, absenteeism among drinking workers reaches 35-75 days annually. Alcohol abuse accounts for up to half of the absence of workers from the workplace.

A drunk worker is a safety hazard. The number is increasing industrial accidents and workplace injuries.

Dismissal for appearing at the workplace in a state of intoxication is an extreme measure provided for by labor law.

Legal basis

The legal basis for dismissal for appearing at the workplace while drunk are Articles 76, 81, 192, 193 of the Labor Code of the Russian Federation.

On the basis of this, it is possible to dismiss an employee who appeared at the workplace during working hours in alcoholic, narcotic, other toxic intoxication or was in the same condition on the territory of the organization or at the facility where he was supposed to perform the work. This is enshrined in paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" dated 17.03.2004 No. 2.

Alcoholic, narcotic and other toxic intoxication can be confirmed by a medical report and other types of evidence that must be evaluated by a court. Other evidences include the statement that the employee was at work in a state of intoxication, the reports of employees who discovered the employee in a state of intoxication, an explanatory note from the employee himself, in which he confirms his being in a state of intoxication at work.

Currently, Russian legislation provides for several grounds for dismissal (termination of an employment contract) at the initiative of the employer, enshrined in Article 81 of the Labor Code of the Russian Federation. One of the options is dismissal (termination of a fixed-term employment contract before the expiration of the employment contract concluded for indefinite term) at the initiative of the employer in the event of the appearance of the employee in alcoholic, drug or other toxic intoxication at work. This basis is provided for by subparagraph "b" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation.

Article 192 of the Labor Code of the Russian Federation establishes the employer's right to apply the following penalties in the event of a misconduct:

• comment;
• rebuke;
• dismissal on appropriate grounds (Article 81 of the Labor Code of the Russian Federation).

Actions when fixing a drunken state

1. An act is drawn up on the presence (appearance) of the employee at the workplace in alcoholic intoxication. This act is not unified and is drawn up in any form. The act must be certified by the signatures of at least 2 witnesses.
2. An order is issued to suspend the employee from work. This order is not unified and is drawn up in any form.
3. Written explanations will be required from the employee about the fact of the appearance in a state of alcoholic intoxication at work. A notification is given about the provision of a written explanation for the fact of appearance in a state of alcoholic intoxication at work. Article 193 of the Labor Code of the Russian Federation provides for 2 working days for the submission of an explanatory note indicating the reasons for absence from work. If, at the end of 2 working days, a written explanation is not provided, then an act of refusal to provide an explanation is drawn up. It is certified by the signatures of 2 witnesses.
4. A memorandum is drawn up on the fact of the appearance in a state of alcoholic intoxication at work. The memo is prepared by the direct supervisor in any form. It is supplemented by an act on the appearance in a state of alcoholic intoxication, an explanatory note from the employee or an act on the employee's refusal to provide a written explanation.

Dismissal actions

1. A work book is issued. An entry is made in the Record Book of the movement of work books and inserts to them. On the day of dismissal (the last day of work), the employer must issue the employee a work book with a note of dismissal. The receipt of a work book is confirmed by an entry in the Book of accounting for the movement of work books and inserts to them. If on the day of dismissal it is impossible to issue a work book due to the employee's refusal to receive a work book, then the employer sends a notification to the employee about the need to receive a work book or agree to send it by mail. Sending a work book by mail to the address specified by the employee, is possible only with his consent. According to article 84.1 of the Labor Code of the Russian Federation, the employer is obliged to issue a work book no later than 3 working days from the date of the employee's request in writing.
2. If the employee submits a written application, a certificate of wages for the last 2 years and certified copies of documents related to the work.

The degree of alcohol intoxication

The Labor Code of the Russian Federation classifies the appearance at the workplace in a state of intoxication as a one-time gross violation of labor duties. On this basis, the employee can be fired.

It is necessary to find out whether the employee is guilty of being drunk at the workplace, that is, whether it was voluntary to bring himself into alcoholic and other intoxication.

It is possible that the employee is not guilty when this condition was the result of taking drugs that contain narcotic substances, as prescribed by a doctor, violations technological process taking psychotropic substances by mistake.

The concept of "alcoholic intoxication" is conventionally divided into 3 degrees: slight intoxication, intoxication medium and heavy intoxication. In case of mild intoxication, the blood alcohol content, as a rule, is 0.5-1.5 ‰. With an average degree - 1.5-2.5 ‰, with severe intoxication - 2.5-3 ‰. With a high blood alcohol content of up to 3-5 ‰, severe poisoning occurs, which can be fatal. Higher concentration is considered fatal.

In medical practice, the following conditions are distinguished that characterize this concept.

1. No signs of alcohol consumption, sober.
2. The fact of drinking alcohol was established, but signs of intoxication were not identified.
3. Alcoholic coma.
4. A state of intoxication due to the effects of drugs or other substances.
5. Sober, but there are functional disorders, which requires removal for health reasons from work with a source of increased danger.

After taking even small doses of alcohol, there is a violation of coordination of movements and a weakening of attention. For skilled workers, labor productivity is reduced by an average of 30%. 70% performance drops at moderate. The consumption of 30 ml of vodka increases the number of errors in typists, typesetters, operators. The consumption of 150 ml of vodka by bricklayers and excavators reduces their muscle strength and labor productivity by 25%.

Dismissal under subparagraph "b" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation due to a single gross violation of labor duties can be carried out only if the conditions specified in positions 3, 4 and 5 are established. Other conditions that are associated with the use of alcohol and do not fall under the definition " alcoholic intoxication ”, can qualify as disciplinary offenses... They may result in disciplinary action such as reprimand and reprimand.

Duration of alcohol action and signs of intoxication

It should be noted that, in view of the rather fast cleavage ethyl alcohol in the body, it is recommended that a drunk worker be delivered for a medical examination within 2 hours from the moment signs of intoxication are detected.

The approximate time for detecting alcohol vapors in the exhaled air when taking 50 g of vodka is 1-1.5 hours, 100 g of vodka - 3-4 hours, 100 g of champagne - 1 hour, 500 g of beer - 20-45 minutes.

Signs of intoxication are:

• impaired coordination of movements;
• the smell of alcohol in the exhaled air;
• fumes from the mouth;
• instability of the situation;
• staggering gait;
• irritability;
• aggressive behavior;
• trembling of fingers;
• misunderstanding of issues;
• lack of concentration of attention;
• incoherent speech;
• chanted shade of speech;
• inadequate reaction to actions and words;
• swearing, obscene expressions.

The drunken state of an employee can only be established by medical workers and only as a result of certain procedures within the framework of a medical examination. Its results must be recorded in a medical report. General rules medical examination is described in clause 2 of the Temporary Instruction of the USSR Ministry of Health No. 06-14 / 33-14 dated 09/01/1988. "On the procedure for medical examination to establish the fact of alcohol consumption and intoxication."

Employers experience difficulties in conducting it, despite the legal impeccability of the certification procedure. Since according to Article 33 of the Law on the Protection of Citizens' Health No. 5487-1 of 22.07.1993. a citizen has the right to refuse the examination or demand its termination.

The procedure for establishing the state of alcoholic intoxication has been efficiently debugged in the organizations of the electric power industry, transport and other especially dangerous industries. In such organizations, before starting work, a medical pre-shift, pre-trip or pre-flight examination is mandatory. Its results are recorded in a special journal or recorded in "protocols of sobriety."

Medical examination is carried out by psychiatrists-narcologists in specialized offices of narcological dispensaries and by doctors of other specialties who have passed special training... Some of the types of ambulances that are examined are mobile medical laboratories. Individual substations of ambulance medical aid have special licenses for given view medical services, and their devices are certified.

When conducting research, only devices and methods approved by the Ministry of Health and Social Development of the Russian Federation should be used. In case of non-observance of this condition, the medical report is null and void. In the event of a judicial review of the case, the court recognizes such a conclusion inadmissible, and this will not be considered as evidence. However, the health worker who performed the assessment will be able to act as a witness for the employer.

As a result of a medical examination, a conclusion is formulated that characterizes the state of the employee at the time of the examination. Not only the fact of alcohol consumption is confirmed, but the very state of intoxication itself. After the survey, the results are reported immediately. The medical examination protocol is handed over to the persons who delivered the employee. In the absence of an accompanying person, the survey protocol is sent to the organization by mail.

At the heart of the examination of intoxication is a clinical assessment of the condition, which is based on the analysis of behavior, neurological and autonomic disorders. Determination of alcohol content in urine, blood, saliva by laboratory methods is an objective confirmation of clinical assessment. Various indicator devices are also used to detect alcohol in exhaled air. Examination for alcohol intoxication is carried out on the proposal of officials (administration at the place of work, employees of the Ministry of Internal Affairs). At transport enterprises and some industries, sobriety control functions, which is separately recorded in the labor agreement.

The doctor who performs the examination draws up a medical examination protocol in 2 copies. After filling out the protocol, the doctor invites the examinee to make a record of familiarization with the results.

Refusal to be examined is documented in medical documents and signed by the person who refused the examination, and health worker... Further, an extract from medical documents can be used by the employer.

According to paragraph 42 of the Plenary Resolution The Supreme Court RF No. 2 dated 17.03.2004. "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" as evidence of the state of intoxication can be used not only medical reports, but also other evidence: an act on the appearance of an employee in a state of intoxication, witness testimony and memoranda. But the main document is a properly executed act, which is drawn up in free form.