The appearance of an employee at the workplace in a state of alcoholic, narcotic or other toxic intoxication is an unconditional basis for dismissal (subparagraph "b", 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, employees who appeared drunk at their workplace in work time or on the territory of the employing organization or facility where, on behalf of the employer, the employee 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 Labor Code Of the Russian Federation "on this basis, employees who were in a state of intoxication during working hours at the place of performance of labor duties (for example, on a business trip in another city) may be dismissed. 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 event of a single gross violation of labor duties by an employee, namely, his appearance at work in a state of alcoholic, drug or other toxic intoxication - it 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. The head of the structural unit where the guilty 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 testimony. From these documents it should be clear on what grounds the drunken state of the employee is determined. That is, the named documents must contain the informational characteristics of a person who is in a state drunkenness... 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 recording the state of intoxication can be drawn up by the immediate boss of the dismissed, and the head of the enterprise, and the person responsible for admitting 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 term for giving explanations starts from the next day, and days off are not included in the two-day period established by the legislation.

After that, within a month from the day the misconduct was discovered (this period does not include the employee's illness and vacation), 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 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 memorandum 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 alcohol - 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 observe 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). A disciplinary penalty 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. Prepare 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" 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

recognized the established practice of issuing two orders, on the application of disciplinary sanctions and on dismissal, not contrary to the law.

What else needs to be remembered

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.

A drunk worker negatively affects the production process. In addition, in many professions, alcohol intoxication creates an increased danger to others. Therefore, the question of the adequate condition of employees should be of concern to every employer.

Dismissal for drunkenness in the workplace - article

The current Labor Code of the Russian Federation includes drinking alcoholic beverages in the workplace to gross violations of labor discipline, for which the guilty person may be dismissed. Also, such actions are related to simply being drunk at the workplace or on the territory of the enterprise. Moreover, dismissal is possible even with a single fixation of these circumstances.

Dismissal for drunkenness - step by step instructions

So that in the future the employer does not have problems with the employee dismissed for drunkenness, it is necessary to ensure the correct procedure for dismissal.

Suspension from work

When an employee appears with signs of intoxication, officials of the employer are obliged to take measures to remove him from work. To do this, a memo from the head of the structural unit is submitted to the name of the head, which contains information that the employee is drunk. The manager is obliged to immediately issue an order to suspend him from work and take measures to prevent the citizen from performing his official duties. If the suspension does not follow, then for everything Negative consequences the work of a drunk worker will be held accountable by his supervisor. The employee must be familiar with the order of suspension, and at his request he must be given a copy of the document.

Drawing up an act of violation

Next, it is necessary to document the fact of the employee being intoxicated. For this, a special act of violation of labor discipline or an act of being in a state of alcoholic intoxication is drawn up. Uniform form of this document no, so the employer can issue it arbitrarily, but taking into account the necessary information. The act must contain:

• Name of company;
• Place, date and time of compilation;
• Data of the employee in respect of whom it was drawn up: name, position, structural unit;
• Description of signs of intoxication: the smell of alcohol from the mouth, incoherent speech, inappropriate behavior, etc.;
• Description of the circumstances of the violation detection (for example, while at the workplace);
• Time of suspension from work with reference to the order number;
• Time of referral for medical examination;
• Information about witnesses;
• Signatures of all persons present when drawing up the act.

The employee, in respect of whom the act is drawn up, has the right to give written explanations, which must be attached to the document. If the citizen refuses to sign the act, then it is necessary to reflect this fact in it by means of an appropriate entry and signatures of witnesses. The act is drawn up in two copies, one is transferred to the employee, the second to the employer.

Medical clearance

To confirm the state of intoxication, the employee must be sent for a medical examination. Such an examination can only be carried out medical institution licensed to do this. The employer is only required to take the employee to a medical facility and issue a referral for examination. Based on its results, an official conclusion is made, which contains information about the presence of alcohol in the body and its amount, and also determines the degree of intoxication.

Important: the employee has the right to refuse a medical examination, this must be reflected in the act. In this case, dismissal for drunkenness at the workplace is possible on the basis of only this document.

Getting an explanatory

Another mandatory document for a drunk is his explanatory document. Its employee must write immediately after appearing at the workplace after sobering up. In it, he must state his opinion on the circumstances of the violation of labor discipline committed by him. An explanatory one is also needed if the employee has already given written explanations when drawing up an act and his suspension from work. The explanatory note is attached to the act and is used in further consideration of the issue of applying a disciplinary sanction to an employee.

Drawing up a dismissal order

When all the documents on the violation have been collected, the manager must decide on the application of punishment to the employee for gross violation of labor discipline. Upon dismissal, an order to this effect must be issued within one month from the date of receipt of the last explanatory letter. It must indicate the reason - dismissal for the state of alcoholic intoxication at the workplace. Also, the document must contain references to the act and the medical report, if any. The employee with the order must be familiarized with the signature within three days from the date of publication. If he refuses to do this, an appropriate act is drawn up.

Making an entry in the work book

After the order, the employer only needs to make a record of the dismissal in the employee's work book. Here it is necessary to ensure the accuracy of the wording, since dismissal under the article for drunkenness significantly affects the employee's career. First of all, the frequency of detecting violations of labor discipline is indicated: single or multiple. In the latter case, the employer must have at his disposal the documents discussed above for each case. The legislation allows dismissal for drunkenness even at the first such violation.

Upon dismissal, all amounts due to the employee must be paid: salary for hours worked, compensation for unused vacation, etc. In this regard, termination of employment is no different from. But such an employee may not be paid incentive payments, for example, a bonus,.

Advice: a person who is threatened with dismissal for drunkenness, it is better to write a statement on on their own until the issuance of the order of dismissal under the article. In this case, there will be an entry in the work book about the termination of the employment contract on the initiative of the employee, which will not scare off other employers.

FAQ

Labor legislation is quite complex, so the situation of dismissal for drunkenness raises many questions both among employers and among employees. As statistics show, such queries are almost more popular than queries for.

Who shouldn't be fired for drunkenness at work?

Being drunk while on duty is one of the most serious violations. However, there are situations when an employee cannot be fired. According to the requirements of the legislation, the dismissal of a pregnant woman is not allowed, including if she is intoxicated. In this situation, the employer must draw up the entire package of documents on the fact of the employee's drunken state, carry out her suspension from work, but dismissal is not allowed.

You cannot dismiss an employee for alcohol intoxication who finds himself in such a condition due to a disruption in the production process as a result of an accident. In this case, the employee is not guilty, since the drunken state is caused by alcohol vapor poisoning (and here we are talking about harm to the health of the employee, and not about his violation of labor discipline).

What degree of inebriation can lead to dismissal?

The current legislation does not contain requirements for the degree of intoxication at which an employee can be fired. Therefore, the application of such a punishment lies entirely with the employer, and he independently decides in what situations it is possible to fire an employee who appears at work while intoxicated. Accordingly, dismissal is also possible with a slight intoxication (if there are sufficient signs of it). This circumstance should be taken into account by those employees who come to work "after yesterday". Most often, they retain individual signs of intoxication: hand tremors, the smell of alcohol from the mouth, redness of the skin. Moreover, when referring to a medical examination, an examination can show the presence of alcohol in the body. Therefore, in such situations and come to your senses, which will avoid trouble with the employer.

Is it possible to challenge dismissal for drunkenness in the workplace?

Dismissal for drunkenness is a rather unpleasant procedure for an employee, since the appearance of such an article in a work book often complicates further employment. But if there are sufficient grounds to believe that such a dismissal was unlawful, the employee has the right to go to court with a demand to cancel the employment record and recognize the dismissal as illegal. It should be borne in mind that you can go to court only within one month from the date of issue of the work book.

The basis for the cancellation of such a dismissal may be the presentation by the employee of proof that he was not intoxicated. In practice, only a medical report is accepted as such evidence. In addition, dismissal can be recognized as illegal if the employer does not comply with the procedure for registering the fact of intoxication at the workplace. Errors or absence of any document lead to the fact that the court recognizes the dismissal as illegal and reinstates the employee in office.

Another reason for the cancellation of dismissal for drunkenness is if the employer misses a month of disciplinary action. Since dismissal in this case is a disciplinary punishment, it is necessary to make a decision on it within one month from the moment of fixing this fact. In all other cases, it is quite problematic to challenge the dismissal under the article for drunkenness. And in judicial practice, there are almost no decisions in favor of the employee on reasons other than those listed above.

Can I get fired for drunkenness without a medical examination?

Dismissal for being drunk at the workplace is possible without medical confirmation of such a condition, a corresponding act is sufficient (but provided that the employee was offered to undergo such an examination, and he refused in front of witnesses). If there was no such proposal, then dismissal only in the presence of an act is not allowed. In this case, the employee must indicate in the act and in the explanatory note that he is asking to be sent to undergo a medical examination. If the employer refuses to do this, further dismissal and the use of other disciplinary measures against the employee are not allowed.

The current legislation allows the dismissal of an employee for being drunk at work (clause "b", clause 6, part 1, article 81 of the Labor Code of the Russian Federation). Even if this is the first violation, and before that the employee was not brought to disciplinary responsibility.

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

We qualify correctly

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

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

Therefore, for the correct qualification of a misconduct, you need to confirm the combination of the following circumstances:

• intoxicated worker
• finding it in this state during working hours
• presence of a drunk employee on the employer's premises or at the place where the assigned work is performed

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

We follow the dismissal procedure

Dismissal on the grounds provided for in clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation is a type of disciplinary sanction. Therefore, before issuing a dismissal order, the procedure established by Article 193 of the Labor Code of the Russian Federation must be observed. Ask the employee for a written explanation. If, after two working days, the explanatory worker has not provided, draw up an act of any form about it.

You can publish no later than a month from the date of discovery of the misconduct, not counting the time the employee is sick or on vacation. Please note that the law prohibits the dismissal of an employee at the initiative of the administration during his illness or vacation.

Arbitrage practice

CASE 1

P. filed a lawsuit to declare the dismissal illegal and reinstate him at work. He claimed that he was not drunk and did not violate anything. In addition, he believed that the employer violated the procedure for bringing to disciplinary responsibility.

At the hearing, it was established that the employer drew up an act on P.'s appearance at the workplace in a state of intoxication. On the same day P. was dismissed under nos. "B" clause 6, part 1, article 81 of the Labor Code of the Russian Federation. The act does not indicate on what grounds the employer came to the conclusion that the employee was intoxicated. Honey. the survey was not carried out. The employer did not give the plaintiff the opportunity to provide any explanations, did not investigate the circumstances of the case, and on the same day issued a dismissal order.

By a court decision, the employee's claims were satisfied.

CASE 2

M. was fired for being drunk at work. He did not agree with the dismissal and filed a claim with the court. In the statement, he indicated that on that day he was on family leave. The master called him and asked him to come to work to hand over the keys. Since M. was not going to appear at work, in the morning he drank a glass of beer, but was not drunk. At the exit from the enterprise, the guards stopped him and drew up an act of being drunk.

When the case was considered in court, M.'s testimony was confirmed. He was really on vacation without saving wages and came to the plant at the request of the master. In the explanatory letter, the employee also pointed out these circumstances. The act of finding M. in a state of intoxication was drawn up in his absence, according to the security officers.

The court reinstated the employee, finding the dismissal illegal. The employer did not prove that M. was drunk. In addition, the plaintiff was at the enterprise outside of his working hours.

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

Make sure the worker is drunk during working hours. A common mistake many employers make: security guards detain an employee at the entrance, who came to work in advance, but with signs of intoxication. An act is drawn up, and the employee leaves home. And his working time has not yet arrived, i.e. on the territory of the enterprise, this person was not drunk during working hours. And, accordingly, it is impossible to fire him for this.

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

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

When drawing up an act on the presence of an employee in a state of intoxication, indicate in detail on what grounds the employees who drew up the act came to this conclusion. Be aware that when a dismissal dispute arises, these employees are likely to be summoned to court as witnesses.

You can only be dismissed for appearing drunk at work: finding an employee in such a state outside of work, even during working hours, does not give reasons for dismissal on the basis in question. "Work" referred to in sub. "B" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation, it is recognized:

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

Sometimes the question arises about the possibility of dismissing an employee who was detained drunk at the checkpoint of the enterprise. The courts, as a rule, recognize such dismissal as legal with the following motivation: the territory of the checkpoint refers to the general territory of the employer (for example, the appeal ruling (JSC) of the Vologda Regional Court dated 08.02.2013 No. 33-507 / 2013). The dismissal of a drunk worker caught in such a state at the customer's checkpoint, in the territory of which the person works on behalf of the management, is also lawful on similar grounds (determination of the Moscow Regional Court of 12/14/2010 in case No. 33-24139).

Circumstances of the time: was the time working

In order to dismiss an employee under the signature. "B" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation, he must be drunk during his working hours, which is determined in the labor regulations, labor contracts, shift schedules. The circumstances of the time directly affect the possibility of dismissal for drunkenness at work. So, for example, if a drunk detention at the checkpoint took place before the start of the working day, then the dismissal will be recognized as illegal (for example, the JSC of the Yaroslavl Regional Court of 18.10.2012 in case No. 33-5617).

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

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

It is worth noting that the courts have a unified position regarding the situation when the employee was drunk while traveling to the place of business trip. The interior of a train, plane and other vehicle cannot be attributed to the workplace, and the travel time - to working hours. Therefore, it is impossible to dismiss such an employee for drunkenness at work (cassation ruling of the Novosibirsk Regional Court of February 24, 2011 in case No. 33-1212 / 2011).

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

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

The state of intoxication can be confirmed not only by a medical opinion, but also by other evidence. This was also indicated by the Plenum of the Supreme Court of the Russian Federation in par. 3 p. 42 of the Resolution No. 2 of March 17, 2004 (hereinafter - Resolution No. 2).

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

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

There are many court decisions that indicate the possibility of proving drunkenness without a doctor's opinion. The employer's chances of winning a dispute on the legality of dismissal increase if there is a set of evidence - an act, a report, witness statements, a memo / service note (see, for example, AO of the Arkhangelsk Regional Court of 06.02.2013 in case No. 33-539 / 2013).

Creation of a commission for drawing up an act

In some organizations, there is a permanent commission for fixing the drunken state of workers. If one is not available, then it is better to create one.

To do this, you must issue a free-form order. It is advisable to display in it:

• the basis for the order (usually a memo on the discovery of a drunk worker);
• the purpose of the commission;
• composition of the commission with indication of full name and position;
• the validity period of the commission (it is possible to create a commission without limiting the validity period, that is, on an ongoing basis).

How to draw up an act for a drunk worker?

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

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

• place, date and time of compilation;
• information about the employees who drew up the act;
• information about the employee identified in a state of intoxication;
• signs of intoxication.

On the last point: in 2016 entered into force new order medical examination to determine the fact of intoxication (approved by order of the Ministry of Health of the Russian Federation of 12/18/2015 No. 9 33n, hereinafter - the procedure). Clause 6 of this document defines the signs of intoxication, each of which is already sufficient for referral for examination, including if the employer suspects that the employee is drunk:

• unstable posture and gait;
• alcoholic smell;
• speech disorders;
• a sharp change in skin color.

These signs may be inherent in some diseases, so the employee's condition should be described in detail. Based on all the circumstances, an appropriate conclusion is drawn in the act.

The act is signed by all members of the commission, after which it is highly desirable to acquaint the violating employee with it under the signature. If he refuses to sign or, due to a state of intoxication, cannot sign the document, the act should be read aloud and the appropriate mark should be made in it.

Medical opinion as proof of the fact of intoxication

After drawing up the act, it is necessary to invite the employee to go through the examination procedure at the medical institution. According to clause 3 of the order, it can only be carried out by organizations with a license for medical activities, including, among other things, the service of examination for intoxication. A conclusion issued by a medical institution without an appropriate license will not be accepted by the court as evidence of the legality of the employee's dismissal.

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

The survey should include 5 actions (clause 4 of the order). Among them are analyzes of biological fluids, and inspection, and testing with a breathalyzer. If any action was not taken and / or not reflected in the conclusion, the court may consider the dismissal illegal.

By the time of the examination, the external signs of intoxication, recorded by the employer in the act, may disappear and, as a result, be absent from the doctors' report. There is arbitrage practice, according to which the dismissal in such situations is recognized as lawful. In this case, the time elapsed from the drawing up of the act to the medical examination was taken into account (for example, the AO of the Yamalo-Nenets District Court of 10.24.2013 in case No. 33-2269 / 2013).

At the same time, if such signs are not described in the act (or the act is absent), and the examination revealed only the fact of drinking alcohol (without external signs of intoxication), the dismissal may be recognized as illegal (for example, JSC Primorsky Regional Court dated 09.07.2015 in the case No. 33-5668). Note that this confirms the need in all cases of the fastest drawing up of an act with detailed description the employee and his condition.

Suspension from performance of labor duties before dismissal for drunkenness

The employer, after establishing the fact of intoxication, is obliged to remove the offender from work (part 1 of article 76 of the Labor Code of the Russian Federation). The time of suspension will not be considered absenteeism, but the salary for this time will not be calculated.

Suspension must be formalized by an order, a unified form of which does not exist. It is advisable to include in it:

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

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

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

How to get fired for drunkenness in the workplace? Dismissal order (sample)

Download order form

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

Before making a decision on dismissal, an explanatory note should be requested from the employee (part 1 of article 193 of the Labor Code of the Russian Federation). Failure to comply with this requirement entails the recognition of the dismissal as illegal (JSC St. Petersburg City Court dated 09.23.2014 No. 33-14346 / 2014).

This is best done after the end of the suspension period. If an explanation is requested immediately after the discovery of a drunk at work, the court may find a violation, indicating that the employee's intoxication resulted in his inability to write a correct explanation.

The explanatory form of the demand has not been established. It is still recommended to draw up it in writing and hand one copy to the employee against signature, and in case of refusal to sign it, draw up an act.

After 2 working days (it is at this time that the explanatory note should be written), the employer has 2 options for action:

1. If an explanation is not provided, then an act is drawn up about this. A written request for an explanation and an act of failure to provide it will be enough to dismiss.
2. If the employee wrote an explanatory note, the reasons for the misconduct indicated by him should be assessed and, taking into account its severity, determine the type of disciplinary sanction. It is possible that the worker was poisoned by toxic fumes at work, as a result of which toxicological intoxication occurred.

IMPORTANT! The employer should remember that by virtue of Art. 261 of the Labor Code of the Russian Federation, a pregnant woman cannot be fired for the offense under consideration. Therefore, it will be necessary to apply a different type of penalty to her (JSC of the Khabarovsk Regional Court dated 05/08/2015 in case No. 33-2767 / 2015).

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

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

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

Thus, the Tverskoy Regional Court, in its decision of 03/10/2015 in case No. 33-687, recognized the dismissal as illegal, motivating it with the following:

1. The employee has been working at the enterprise for a long time.
2. Disciplinary sanctions have never been applied to an employee before.
3. The employee's age is close to retirement.
4. There were no negative consequences of the misconduct for the employer.

Thus, before deciding to fire an employee for being drunk at work, one should reassess the situation and make sure that there are mandatory conditions for terminating the employment contract, such as:

• sufficient evidence of intoxication;
• establishing the employee's guilt in the onset of intoxication;
• drunkenness in the workplace and during working hours.

Dismissal for drunkenness is possible only with the combination of these facts, one of them is not enough. In addition, the employer should consider imposing a non-termination penalty based on the employee's profile.

Dismissal for appearing at work while intoxicated

The current legislation currently provides for several grounds for terminating an employment contract at the initiative of the employer; they are all enshrined in Art. 81 of the Labor Code (LC) of the Russian Federation. One of these grounds is provided for in paragraphs. "b" clause 6 of Art. 81 of the Labor Code of the Russian Federation, termination of an employment contract concluded for an indefinite period, as well as a fixed-term employment contract before its expiration at the initiative of the employer in the event of an employee at work in a state of alcoholic, narcotic or other toxic intoxication.

On this basis, according to the explanation given in the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", employees who were during working hours at the place of performance in a state of alcoholic , narcotic or other toxic intoxication. Dismissal on this basis may also follow when the employee during working hours was in such a state not at his workplace, but on the territory of this organization, or he was on the territory of the facility, where, on behalf of the employer, he was supposed to perform a labor function.

The Labor Code (LC) of the Russian Federation classifies the state of alcoholic, narcotic or other toxic intoxication as a single gross violation of labor duties.

Consequently, the employer must find out whether there is guilt in the employee's actions, i.e. voluntarily bringing oneself into a state of alcoholic, narcotic or toxic intoxication (as opposed to taking drugs containing narcotic substances, as prescribed by a doctor; from alcoholic, narcotic or toxic intoxication associated with a violation technological process; from taking the listed substances by mistake).

Note. Medic commentary

Three degrees of alcoholic intoxication are conventionally distinguished: light alcoholic intoxication, moderate intoxication and severe alcoholic intoxication. The alcohol content in the blood with light intoxication, as a rule, is 0.5 - 1.50 / 00, with moderate intoxication - 1.5 - 2.50 / 00, with severe - 2.5 - 30/00. With an increase in blood alcohol content to 3-50/00, severe poisoning develops with possible lethal outcome... A higher concentration of alcohol in the blood is considered fatal.

According to Art. 192 of the Labor Code of the Russian Federation for the commission of a disciplinary offense through the fault of an employee, the employer has the right to apply the following disciplinary sanctions:

Comment;

Rebuke;

Dismissal under the relevant articles (Article 81 of the Labor Code of the Russian Federation).

In pp. "b" clause 6 of Art. 81 of the Labor Code of the Russian Federation introduced the concept of "state of intoxication".

In medicine, the following conditions are distinguished, associated with the use of alcohol or other narcotic and psychotropic drugs and substances by a person:

1. Sober, there are no signs of alcohol consumption.

2. The fact of alcohol consumption has been established; signs of intoxication have not been identified.

3. Alcoholic intoxication.

4. Alcoholic coma.

5. State of intoxication caused by narcotic or other substances.

6. Sober, there are functional disorders requiring dismissal from work with a source of increased danger for health reasons.

Figures and facts. Impaired coordination of movements and weakening of attention after taking even small doses of alcohol reduce labor productivity among skilled workers by an average of 30%, and with a moderate degree of intoxication - by 70%. Taking 30 ml of vodka significantly increases the number of mistakes made by typesetters, typists, operators; when taking 150 ml of vodka from diggers and bricklayers, muscle strength decreases by 25% and labor productivity decreases.

Under a one-time gross violation of labor duties, for which an extreme measure of disciplinary responsibility can be applied to the employee - dismissal under paragraphs. "b" clause 6 of Art. 81 of the Labor Code of the Russian Federation, - only the conditions specified in positions 3 - 5 above are covered. Other conditions associated with the use of alcohol and not falling under the concept of "alcoholic intoxication" may qualify as disciplinary offenses and entail the application of such disciplinary sanctions as a remark and a reprimand, including repeatedly.

Only medical workers can establish what kind of condition occurs and only as a result of a number of procedures carried out as part of a medical examination, the results of which must be recorded in a medical report. To do this, employers must be guided by general rules medical examination of citizens, which are contained in paragraph 2 of the Temporary Instruction of the USSR Ministry of Health dated 09/01/1988 N 06-14 / 33-14 "On the procedure for medical examination to establish the fact of alcohol consumption and intoxication."

Despite the fact that a survey is a legally perfect way of determining the state of alcoholic intoxication and its degree, it is very difficult for most employers to use it. Indeed, according to Art. 33 of the Law of the Russian Federation on the protection of the health of citizens of July 22, 1993 N 5487-1 (as amended on June 30, 2003), a citizen has the right to refuse medical intervention or demand its termination.

The most streamlined procedure for establishing the state of alcoholic intoxication exists in transport organizations, the electric power industry and in other especially dangerous industries. In such organizations, before admitting an employee to work, the doctor must conduct a medical pre-trip, pre-flight or pre-shift examination. The results of such an examination are either recorded in special journals, or recorded in "protocols of sobriety."

Since the breakdown of ethyl alcohol in the body is a transient process, it is recommended that a drunk worker be delivered for a medical examination within two hours from the moment signs of alcohol consumption are detected (for example, drinking 50 g of vodka makes it possible to detect alcohol vapors in exhaled air after 1 - 1.5 hours , 100 g of vodka - within 3 - 4 hours; 100 g of champagne - within an hour; 500 g of beer - within 20 - 45 minutes).

Medical examination should be carried out in specialized offices of narcological dispensaries by psychiatrists-narcologists and doctors of other specialties, who have been trained both directly in institutions and with departure in vehicles specially equipped for this purpose. Some of the ambulances, in which the examinations are carried out, are a mobile medical laboratory, some substations of the ambulance medical care"have special licenses for given view medical services, and the devices with which the research is carried out are certified. When conducting laboratory tests, only methods and devices approved by the Ministry of Health and Social Development of Russia should be used.

Failure to comply with this condition deprives the medical opinion legal force... In the event of a trial, the court will declare it inadmissible and will not consider it as evidence. However, by a court decision, the medical professional who performed the examination can act as a witness on the part of the employer.

On the basis of a medical examination, a conclusion is formulated, which characterizes the state of the subject at the time of the examination (not only confirmation of the fact of alcohol consumption by the employee, namely, the state of intoxication). The results of the survey are reported to the examinee immediately after the end of the survey. Persons who deliver the examined person to determine the fact of alcohol consumption or intoxication are given a medical examination protocol. In the absence of an accompanying person, the examination protocol is sent by mail to the address of the organization that sent the citizen for examination (in this case, the employer).

Note. The examination of alcohol intoxication is based on a clinical assessment of the condition based on the analysis of behavior, as well as autonomic and neurological disorders. Objective confirmation of clinical assessment is the determination of alcohol content in blood, urine or saliva by standard laboratory methods... Various types of indicator devices are also used to detect alcohol in the exhaled air. Examination of alcoholic intoxication is carried out on the proposal of officials (employees of the Ministry of Internal Affairs, administration at the place of work). In some industries (transport companies), sobriety control is a clause of the labor agreement between the employee and the administration.

The doctor (paramedic) performing the examination draws up a protocol of the medical examination in the prescribed form in two copies. After completing the registration of the protocol, the doctor (paramedic) invites the examinee to make a detailed record of familiarization with the results of the examination.

Personnel Management Dictionary. A disciplinary offense is an offense committed in the field of official relations and infringing on the mandatory procedure for the activities of certain groups of people: workers, employees, military personnel, students.

An employee's refusal from a medical examination is documented in medical documentation and signed by the person who refused the examination, as well as by the medical worker. Subsequently, this extract from medical records can be used by the employer.

The courts, guided by clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", accept as evidence of a state of intoxication not only medical reports, but also other evidence: memoranda, witness testimony, act about the appearance of an employee in a state of intoxication. In this case, the main document will be a correctly drawn up act.

The act is drawn up in free form. If, in the company, there are frequent cases of employees appearing at the workplace in a state of alcoholic intoxication, it is possible to develop a special form for such an act with information partially entered into it, which, if necessary, can be simply and quickly filled out. The indispensable details of the act are the date, place and exact time its compilation, the names and titles of at least two independent witnesses (it is better if they are employees of other departments).

The legislation does not establish who is entitled to draw up an act on the appearance of an employee at work in a state of intoxication. Since control over the observance of labor discipline, as a rule, is entrusted to employees of the personnel service, it is they who constitute such an act. It is recommended to include the head of the structural unit of the organization in the composition of the commission, subordinate to which the offending employee is, an occupational health and safety specialist and a lawyer. Other officials can be included.

When drawing up the act, the commission should describe in detail the external signs of intoxication that are observed in the employee (especially if there is no other evidence besides the act). Similar signs are:

The smell of alcohol in the breath;

Fumes from the mouth;

Impaired coordination of movements;

Instability of position (up to a fall);

Staggering gait;

Tremor (trembling) of the fingers;

Irritability, aggressive behavior;

Lack of concentration of attention;

Inappropriate reaction to words and actions;

Lack of understanding of issues;

Incoherent speech;

Chanted shade of speech;

Swearing and obscene expressions addressed to others.

The act, which states the appearance of an employee at work in a drunken state, is drawn up on the same day, and is presented for review the next day. The employee must be familiarized with the act against receipt, and also invite him to submit his explanations. However, sometimes the following entry appears in the act: "It was not possible to acquaint the employee with the act due to the employee's misunderstanding of the appeals addressed to him."

An employee who appears at work in a state of alcoholic intoxication must be requested to provide an explanation in writing. Requests for explanations can be made both at the moment of finding an employee in a state of intoxication, and after that. If the employee refuses to give an explanation, it is necessary to draw up a commission act (at least three people) about the refusal to give an explanation.

When drawing up this act, corrections and erasures are not allowed. Upon dismissal of the guilty employee under paragraphs. "b" clause 6 of Art. 81 of the Labor Code of the Russian Federation, drawing up an act is mandatory. When issuing a dismissal order on this basis, a reference to the act is mandatory.

In accordance with Art. 76 of the Labor Code of the Russian Federation, the employer must remove from work an employee who appears at work in a state of intoxication for the entire period of time until the circumstances that were the basis for the suspension from work or non-admission to work are eliminated.

If the fact of the appearance of an employee in a state of intoxication is confirmed by a medical certificate, then it must indicate the time after which the level of alcohol, narcotic drugs and psychotropic substances in the blood will drop to a norm that does not interfere with the performance of work.

The employer's decision to suspend an employee from work (prohibition to work) is formalized by an order of the head of the organization.

The order lists the circumstances that served as the grounds for the employee's suspension, as well as documents that confirm the existence of these grounds, and also the period for which the employee is suspended from work must be indicated. In the order, in addition, it is advisable to give an order to the accounting department to suspend the calculation of wages for the period of suspension. This order is subject to approval by the head of the legal department or the company's lawyer and chief accountant. The employee must be familiarized with the order against receipt; upon refusal to sign, an appropriate act is drawn up.

For how long is an employee who shows up at work in a state of intoxication suspended? Part 2 of Art. 76 of the Labor Code of the Russian Federation, it is established that the employer suspends (does not admit to work) the employee for the entire period of time until the circumstances that were the basis for the dismissal from work or prohibition to work are eliminated.

In numerous comments of the Labor Code of the Russian Federation, an employee who appears in a state of intoxication is recommended to be suspended from work for one day. This advice has been moved from Art. 38 of the Labor Code of the Russian Federation, according to which the administration of the enterprise was instructed not to allow an employee who appeared at work drunk, in a state of narcotic or toxic intoxication, to work on that day (shift). In fact, everything is much more complicated.

Production processes in Russia have undergone significant changes over the past decade - the degree of automation technological operations in individual industries has increased significantly. The Labor Code of the Russian Federation was adopted at a time when the emphasis was placed only on the mechanization of work and manual labor, and, therefore, the time for "sobering up" was allotted "until tomorrow" - just as much was required to restore the ability to hold a hammer in hands. Although, if you look at the local regulations large enterprises where the work was automated and the slightest negligence production dispatcher could lead to accidents, the management took up to two or three days to rid the body of alcohol (unless, of course, they did not fire them right away).

Do not make mistakes, do not "enter the position" of the employee, removing him for one day. Health care legislation operates with the concept of the severity of intoxication. Alcohol intoxication of moderate and mild degrees of special therapy does not require, and you can really talk about sobering up the next day. As for the severe degree of intoxication, then, subject to medical intervention, the duration of treatment is 2 days.

Only after carrying out medical procedures, the employee, after 2 days, will be able to fully control his actions. If we are talking about alcohol abuse (use with harmful health effects), chronic alcoholism, then it will take from 10 to 25 days for treatment and removal from alcohol intoxication. With narcotic or toxic intoxication, it is even more difficult. Therefore, try to still get a medical certificate, which will indicate the period after which the level of alcohol, narcotic and psychotropic substances in the blood will drop to the established norm.

What document is the suspension from work?

The Labor Code of the Russian Federation does not resolve the procedural issues of suspension from work of an employee who appears in a state of intoxication; does not indicate on the basis of which administrative document the suspension should be carried out; does not specify which official should issue such a document.

If an employee comes to work in a state of intoxication, what should the head of the structural unit (the immediate boss of this employee) do: send information to the name of the head of the organization and wait for his decision, or act independently? It all depends on whether it provides job description the chief's authority to remove an employee from work (not to be allowed to work). If he is empowered to do so, then his demand to stop working is legal and binding on the employee. Then the head of the department (shop, site, etc.) draws up a memo (report) and immediately sends it to the management. In parallel with this, he invites employees of the personnel department and other specialists to draw up an act on the appearance of an employee at work in a state of alcoholic intoxication. All these documents (memo, report, act) are the basis for the publication by the head of the organization or his deputy of a written order (instruction) to dismiss the employee from work. The order (instruction) must be drawn up in any case, since it is on its basis that the employee is not paid wages.

What to put on the time sheet for an employee suspended from work due to alcohol intoxication? If the suspension from work occurred at the beginning of the working day, even before the time sheet was filled, then on the basis of the order for suspension, the report must be marked with "NB" (suspension from work / non-admission to work without payment) and zero hours worked. If the employee was dismissed after the “turnout” was put on the report card, then in the hours worked column it is necessary to put as many hours as the employee actually managed to work before the dismissal.

Since efficiency is important in this matter, care should be taken to "fine-tune" the scheme and system of interaction of linear structural divisions with the personnel department and directorate at the stage of development and introduction of general local regulations in the organization.

Should I be fired? Suspension from work of an employee who appears in a state of intoxication, in accordance with the Labor Code of the Russian Federation, is not a disciplinary penalty. The requirement of Art. 76 of the Labor Code of the Russian Federation is a condition for ensuring the safety of an employee, as well as preventing possible accidents and disruptions in the production process.

Nevertheless, the state of intoxication according to paragraphs. "b" clause 6 of Art. 81 of the Labor Code of the Russian Federation is qualified as a gross violation of labor duties, and, therefore, a disciplinary penalty may be imposed for appearing at work in a state of alcoholic intoxication.

An extreme disciplinary measure is the termination of an employment contract at the initiative of the employer. The manifestation of such an initiative is not an obligation, but the right of the employer, therefore, he can independently determine the measure of disciplinary sanction: either make a remark (for the first time), or pronounce a reprimand (for the second) and, finally, dismiss when he sees fit. Providing in Art. 81 one-time appearance at work in a state of intoxication, legislators provided the opportunity to fire an employee the first time.

In practice, often, in order not to create problems for the employee with subsequent employment, they take a letter of resignation from him of his own free will and fire him on the appropriate grounds. However, at the same time, it is necessary to keep all documents confirming the fact that the employee is at the workplace in a state of intoxication, even after his dismissal of his own free will. This will be quite reliable "insurance" in case the dismissed employee submits a claim to the court for reinstatement at work, since the letter of resignation was written under pressure, and the dismissal was due to the nagging of the management.

So, if the decision to dismiss an employee for being drunk at work is nevertheless made, you need to collect all the documents available on this case and, on their basis, issue an order to terminate the employment contract in unified form No. T-8. To do this, the following documents must be available, samples of which are given in the section "Experience of organizations: corporate documents":

The act on the appearance of an employee at the workplace in a state of intoxication (Appendix N 1);

Memorandum addressed to the head of the company with a description of the disciplinary offense and the resolution "Dismiss" (Appendix No. 2);

Medical examination protocol;

Order (instruction) on the suspension of an employee from work (Appendix No. 3);

An employee's explanatory note or an act of refusal to give explanations (Appendix No. 4).

After the issuance of the order (Appendix N 5), an entry is made in the dismissal log (Appendix N 6) and the work book is filled in, in which you need to make an entry with reference to paragraphs. "b" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation (Appendix N 7).

Statistics. Absenteeism for heavy drinkers ranges from 35 to 75 working days a year. According to the American telephone company Bell, absenteeism is 5 times more common among heavy drinkers than among non-drinkers. Every year the French industry loses 8 million working days due to "alcohol" diseases. Among industrial workers in the United States, there are more than 2 million patients with chronic alcoholism. Temporary disability from injuries, "alcoholic" diseases, as well as exacerbations chronic diseases associated with alcohol consumption in the United States is about 30 million days a year. 40% of British companies cite alcohol abuse as one of the main reasons for the systematic absence of workers from the workplace. According to the Occupational Health and Safety Inspectorate, workers in the UK are absent 14 million working days every year due to drunkenness.

Senior Lecturer

Department of Management

Moscow Institute of Tourism

and hospitality

"Personnel officer. Personnel record keeping", 2008, N 3