What an article for drinking in the workplace. Dismissal procedure for appearing at work in a state of intoxication

Date of: 16.10.2019

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

Legal grounds for dismissal for drunkenness

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

Attention!

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

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

Where to begin

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

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

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

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

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

Attention!

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

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

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

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

The deed must also include:

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

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

Suspension from work

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

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

Sample order.

We demand an explanation

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

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

Attention!

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

We impose a penalty

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

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

We dismiss and issue labor

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

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

The current legislation allows the dismissal of an employee for being at work in a state of intoxication (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, in 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 part of the enterprise, or at the facility where he was supposed to perform the assigned task can be dismissed for being in a state of intoxication.

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

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

worker's state of intoxication
being in such a state during working hours
the presence of a drunk employee on the territory of the employer or at the place of performance of the assigned work

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

We comply with the dismissal procedure

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

You can publish later than a month from the day the misconduct was discovered, not counting the time the employee was 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 to 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 court session, it was established that the employer had drawn up an act on P.'s appearance at the workplace in a state of intoxication. On the same day, P. was fired under paragraphs. "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 in a state of intoxication. Honey. examination 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 the decision of the court, the claims of the employee were satisfied.

CASE 2

M. was fired for appearing at work in a state of intoxication. He did not agree with the dismissal and filed a lawsuit. In the application, he indicated that he was on leave that day for family reasons. 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, he drank a glass of beer in the morning, but he was not drunk. At the exit from the enterprise, the guards stopped him and drew up an act of being in a state of intoxication.

During the consideration of the case in court, M.'s testimony was confirmed. He really was on vacation without saving wages and came to the plant at the request of the master. In the explanatory note, 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 guards.

The court reinstated the employee, recognizing the dismissal as illegal. The employer did not prove that M. was drunk. In addition, the plaintiff was at the enterprise during non-working hours for him.

People almost always appeal against 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 for the court.

Make sure the employee was intoxicated during work hours. A common mistake of many employers: security detains an employee at the entrance who came to work in advance, but with signs of intoxication. They draw up an act, and the employee leaves home. And his working time has not yet come, i.e. on the territory of the enterprise, this person was not in a state of intoxication during working hours. And you can't fire him for it.

A similar situation: an employee stayed late at work and gets drunk already. And in court then he will claim that he drank after the end of working hours. If the employer fails to prove otherwise, 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 employee being 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 in the event of a dismissal dispute, these employees will most likely be subpoenaed as witnesses.

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

Arguments, facts, acts

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

In paragraph 42 of the Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation” (hereinafter referred to as the Resolution) states that alcohol or drug or other toxic intoxication can be confirmed both by a medical report and other types of evidence, which must be assessed accordingly by the court. Thus, a medical examination and conclusion is not the most important document in fixing the state of alcoholic intoxication. A competently drawn up act on the appearance of an employee at work in a state of intoxication, an act of refusal to undergo a medical examination, testimony of witnesses - all this will become the basis for the removal of the offending employee from work, and then for his dismissal under paragraphs. "b" p. 6. Part 1 of Art. 81 of the Labor Code of the Russian Federation, even though a medical examination as such was not carried out. Moreover, drunken workers themselves often refuse to carry out medical manipulations.

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

The "author" of the act on the appearance of an employee at work in a state of intoxication can be any official who monitors the observance of labor discipline: from a personnel service specialist to the immediate supervisor of the employee. Regulations there is no unified form of this document, so each organization develops it independently. In order to avoid problems in the future during the trial, if this happens, the following information must be indicated in the act (see Appendix 1):

Signs of alcohol intoxication:

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

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

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

On practice

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

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

The court found that K. during his work shift on 03.04.2012 at 07:50. was at her workplace in a state of alcoholic intoxication, which is confirmed by an act drawn up by the head of the GOBP OOB, a medical examination protocol for K. to establish the fact of alcohol consumption and intoxication dated 04/03/2012, drawn up at the Moscow Scientific and Practical Center for Narcology, where she was taken for examination, which she refused to pass.

Refusing to satisfy the claims, the court, having examined and evaluated the evidence collected in the case, came to the conclusion that the employer had grounds for dismissing the plaintiff on the grounds of paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, since she did not refute the information about the state of alcoholic intoxication, reflected in the employer's act, and did not provide evidence of the intake of medicinal alcohol-containing preparations during the specified period of time.

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

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

In no case should an employee be forced to undergo a medical examination and use force if he refuses. The reason for refusing to undergo a medical examination, indicated by the employee, is recorded in a new act, which is drawn up according to the same rules and taking into account the same information as the act of being in a state of intoxication, or this can be reflected in the first act. The act of refusal of the medical examination is provided to the employee for review: he either puts his signature or refuses to sign, which should also be recorded in this document.

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

testimonies of witnesses (for example, other employees of this organization, representatives of the security service);
memorandums, which also record the behavior and condition of the "guilty";
doctor's testimony, if the employee agreed to a medical examination.

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

On practice

L. worked as a ticket clerk and was fired under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation (for a single gross violation by an employee job duties- appearing at work in a state of intoxication). From the act dated 17.08.2011, drawn up by the head of the Kiev direction of JSC "Central Suburban Passenger Company" K. I., as well as employees of the private security company "Fortress" M., U., it follows that at 03 h. 45 min. in the building of the Kievsky railway station in the ticket office of the suburban hall, ticket cashiers L., Ya., O., Sh., G., E. were at the workplace in a state of intoxication. This state was determined by the following signs: the smell of alcohol from the mouth, unsteady gait, cloudy eyes, incoherent speech. In accordance with an extract from the register of outpatients at the medical center of the Kiev railway station for August-September 2011, on August 17, 2011, the doctor on duty K. M. and the paramedic V. on duty in the period from 04 h. 10 min. until 04 h 55 min. took samples for alcohol from ticket tellers L., Ya., O., Sh., G., E. with the help of the AG-1200 indicator apparatus. The alcohol test of all employees was negative. According to the act of 17.08.2011, employees L., Ya., O., Sh., G., E. refused to go to the medical examination. According to the minutes of the operational meeting with the Deputy General Director for passenger traffic OJSC “Central Suburban Passenger Company” dated 08.18.2011 No. 77 / tsok, employees Y., Sh., G., E. confirmed the fact of alcohol consumption by all ticket cashiers, cashiers L., O. disputed this fact. The court of first instance, when deciding on the case and reinstating L. at work, indicated that the medical examination conducted at the medical center of the Kievsky railway station, the fact of using alcoholic beverages ticket tellers L., Ya., O., Sh., G., E. did not confirm that the testimony of witnesses is evaluative and inconsistent, and therefore there are sufficient grounds for bringing L. to disciplinary liability in the form of dismissal under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, the employer did not have. The panel of judges considered the conclusions of the court to be erroneous, contrary to the norms of substantive law and inconsistent with the established circumstances of the case. Giving priority to the results of the case medical examination 17.08.2011, the trial court did not take into account that it could not be admissible evidence, t.to. the examination was carried out with gross violations of the Temporary Instruction on the procedure for a medical examination to establish the fact of alcohol consumption and intoxication, approved by the USSR Ministry of Health on September 1, 1988 No. 06-14 / 33-14, which is currently in force. According to this Instruction, a medical examination to establish the fact of alcohol consumption and the state of intoxication is carried out in specialized rooms of narcological dispensaries (departments) by psychiatrists-narcologists or in medical institutions by psychiatrists-narcologists and doctors of other specialties who have been trained, both directly in institutions, and with departure in cars specially equipped for this purpose. The sequence of actions of the doctor on duty K. M. and the on-duty paramedic V., the procedure for conducting a medical examination and processing documents do not meet the above criteria, respectively, an extract from the journal cannot be a sufficient basis for concluding that L. has no signs of intoxication on 17.08.2011. Testimony of witnesses who are not in official or other dependence on the defendant, warned of criminal liability, in fully are consistent with the testimony of employees of JSC "Central Suburban Passenger Company"<…>and in conjunction with the acts of 08/17/2011, the protocol of the operational meeting of 08/18/2011, other written materials of the case confirm the fact that L. was intoxicated on 08/17/2011. Taking into account the above evidence, the panel of judges came to the conclusion that the plaintiff's state of alcoholic intoxication was confirmed, and the employer had sufficient grounds to bring her to disciplinary liability (appellate ruling of the Moscow City Court dated July 26, 2013 No. 11-23618 / 2013 ).

Suspension from work

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

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

Dismissal as a measure of disciplinary action

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

disciplinary action applied no later than one month from the day the misdemeanor was discovered. At the same time, neither the time of illness of the employee, nor the period of his stay on vacation are taken into account;
Before applying a disciplinary sanction, the employer must request a written explanation from the employee.

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

In any case, it is necessary to request a written explanation from the offender. It happens that the employer asks to provide it orally, and the employee also verbally refuses. An employee is fired under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, and already in the proceedings for reinstatement, as an argument for illegal dismissal, the former employee refers to the fact that the head did not even take an interest in the reasons and circumstances, which is absolutely necessary in accordance with Part 5 of Art. 192 of the Labor Code of the Russian Federation to assess the severity of the offense committed. In order to protect yourself from such false accusations in the future, it is recommended to require the employee to explain being drunk by giving him a written notice (see Appendix 3), which should also indicate the period (two working days) during which an explanatory note should appear from an employee. If, after two working days, he does not provide the specified explanation (or refuses to deliver the notification), then it is also necessary to draw up an appropriate act (part 1 of article 193 of the Labor Code of the Russian Federation).

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

On practice

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

K. considers dismissal under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation illegal, since the medical examination was carried out in violation of the established procedure, imposing a disciplinary sanction in the form of dismissal, the employer did not follow the procedure for its application, established by Art. 193 of the Labor Code of the Russian Federation. Resolving the stated requirements, the court of first instance came to the conclusion that the employer had grounds for terminating the employment contract with the plaintiff on the grounds of paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, since the plaintiff was during working hours on May 24, 2012 at 09:30. at the workplace - in the premises of the foreman at the site in the village. Sivaki was at the same time in a state of intoxication.

This conclusion of the court is confirmed by the act dated 05.24.2012 No. 3, drawn up by the foreman of the site S. E. (case sheet 93 volume 1), which reflects the signs of the plaintiff's intoxication - the smell of alcohol, impaired coordination of movements, instability of posture, as well as an act of medical examination of the plaintiff from 24.05.2012 for alcohol intoxication, drawn up paramedic ambulance hospital village. Sivaki M., confirming the fact of K.'s alcoholic intoxication, with which the plaintiff was acquainted on May 24, 2012, had no comments on the act (case file 97 volume 1). Plaintiff did not present any evidence to refute the conclusions of the court. The plaintiff does not appeal against the decision of the court in this part.

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

However, the panel of judges could not agree with this conclusion of the court, since it contradicts the materials of the case. So, the court, resolving the claims made by the plaintiff, did not take into account the act dated 05.24.2012 No. 3 on the employee being in a state of intoxication at the workplace, in which K. explained this by the fact that he “rested” (case sheet 93 volume one). The plaintiff signed this act, and he did not have any comments on the act. The plaintiff did not challenge the content of the act.

In addition, the court did not take into account that before the defendant issued an order to terminate the employment contract with the plaintiff on May 29, 2012, two working days had passed (May 25 and 28, 2012) from the moment the plaintiff received a request for a written explanation - 05/24/2012 , the plaintiff did not provide an explanation, 28.05.2012 left the base in the village. Sivaki did not appear there again, which was not disputed by the plaintiff during the consideration of the case.

Based on the evidence presented by the parties, the court concluded that the employer complied with the requirements of Art. 193 of the Labor Code of the Russian Federation, the plaintiff gave an explanation on the circumstances of being in a state of intoxication on May 24, 2012, indicating in the act of May 24, 2012 No. 3 that he was resting. Despite the plaintiff's explanations on May 24, 2012, the defendant gave K. the opportunity to give detailed explanations, however, the plaintiff did not exercise his right, about which an act was drawn up on 26.05.2012.

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

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

The order (instruction) of the employer on the application of a disciplinary sanction (in this case, this is an order to dismiss) is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee was absent from work.
The form of the dismissal order depends on the rules of the document flow of a particular organization. According to federal law dated 06.12.2011 No. 402-ФЗ “On Accounting”, forms of primary accounting documents contained in albums of unified forms of primary accounting documentation, approved. Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1 are not mandatory for use from January 1, 2013. In Art. 9 of this law provides that the forms of primary accounting documents are approved by the head of an economic entity on the proposal of an official who is entrusted with accounting. Therefore, organizations have the right to use the forms of primary accounting documents developed by them independently. All required details of the primary accounting document are listed in Part 2 of Art. 9 of the above law. However, this law also does not cancel the application of the usual unified forms. Therefore, if it is more convenient for an organization to fill out unified forms, approved. By the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1, they can also be used, having previously approved these samples by order of the head of the organization. An example of drawing up an order to dismiss a unified form No. T-8 is given in Appendix 4.

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

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

Attachment 1

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

Annex 2

Sample letter of dismissal from work

Annex 3

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

Appendix 4

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

Annex 5

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

E Catherine Roschupkina- expert of the magazine "Kadrovik"

How to fire an employee and save your reputation? One of the unpleasant reasons to fire an employee is dismissal for drunkenness. This is a common situation these days. 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 turns a blind eye to drunkenness at work for some time. Especially if the employee good specialist and promising personality. But everything has a limit. An employee who regularly abuses alcohol will soon lose his professionalism and can cause irreparable harm to the company's image.

If an employee came 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 holding a warning conversation for preventive purposes. Otherwise, this fact will be considered unnoticed and will entail repetition. Drunkenness in the workplace will progress, which will negatively affect the atmosphere in the team, and perhaps other employees will begin to follow the example. If such an immoral person appeared at work, it is necessary to stop her illegal actions.

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

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

How to fire an employee for drinking at work

The 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 in the direction of 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 of his working hours, then you can limit yourself to a warning. In the case of an irregular working day, 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 at a checkpoint, this is also not considered a reason for dismissal. It is impossible to dismiss a minor employee without the consent of the state labor inspectorate and the commission on minors. It sounds rather strange, but it is impossible to dismiss a pregnant woman in a state of intoxication according to the article of the Labor Code. The Labor Code spells out how to dismiss an employee and how he can protect himself upon dismissal.

The actions of the employer are not very different if the territory in which the organization is located is Ukraine. In this case, the article of the Labor Code changes 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 single mothers who are intoxicated and have a child under the age of 14 or a disabled child from losing their jobs. The same applies to fathers who raise a child without a mother or a mother who 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 Labor Code of Ukraine.

Please note right away that intoxication is a medical concept, and an ordinary person is not entitled to draw an unambiguous conclusion. Without being a specialist, it is difficult to establish, since many of the symptoms of intoxication are characteristic of other conditions: great excitement, stress, high temperature, poisoning, etc. Only a medical examination can help in resolving this issue.

How to correctly record the state of intoxication of an employee

The immediate supervisor of the employee who appeared 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 internal investigation, which draws up an act and sends it for a medical examination.

Drawing up an act upon dismissal for drunkenness

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

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

The act is drawn up in two copies and given to all participants against signature. An employee can win a court case 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 one 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, the duties of employees do not include passing a medical examination for alcohol intoxication; it is impossible to force him to do this according to the law. And yes, there is a fee for this process. 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 further try to recover damages from him. Send the violator to the procedure to determine the degree of intoxication as soon as possible, because the signs may disappear within a few hours. As a result of visiting the doctor, a protocol will be drawn up in the form No. 155 / y, the conclusion of which gives the right to dismiss under subpara. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation.

A dismissal order is prepared, signed by the head of the company, and the employee is immediately removed from the work performed. A sample order can be found online. 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 employer insurance against unnecessary costs. Working time after suspension from work for drunkenness is not paid and is not included in the vacation record. In order for everything to be 100% legal, make an entry in the time sheet, putting down the letter code "NB" or numeric code"35". This will be grounds for non-payment of wages.

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

How to punish an employee for drinking at work

If a drunk worker behaves aggressively, tries to use force, feel free to call the police or an ambulance medical care. After compiling the documents described above, a decision is made what will be the next step - dismissal for drunkenness or forgiveness of 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 intoxication, the article of the Labor Code on the basis of which this happened is indicated.

According to the Labor Code, on the day of dismissal, the employer must pay the employee for wages and unused vacation days and issue him a work book. Naturally, in this case, the 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 on dismissal by agreement of the parties.

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

The consumption of alcoholic beverages is allowed corporate parties in restaurants, cafes, outdoors. It would be nice if such events would also be non-alcoholic in nature. But if this cannot be avoided, diversify your leisure time with sports competitions, a cultural program. This will bring novelty to the collective holiday and reduce the time for drinking alcohol. The procedure for dismissal under the article for drunkenness is not a very pleasant procedure. Therefore, it is better to spend your working time on more productive things. Take care of healthy way the life of his team, and he will definitely respond with excellent results.

Thanks for the feedback

Comments

Megan92 () 2 weeks ago

Has anyone managed to save her husband from alcoholism? Mine drinks without drying up, I don’t know what to do ((I thought of getting a divorce, but I don’t want to leave the child without a father, and I feel sorry for my husband, he’s a great person when he doesn’t drink

Daria () 2 weeks ago

I have already tried so many things and only after reading this article, I managed to wean my husband from alcohol, now he doesn’t drink at all, even on holidays.

Megan92 () 13 days ago

Daria () 12 days ago

Megan92, so I wrote in my first comment) I will duplicate it just in case - link to article.

Sonya 10 days ago

Isn't this a divorce? Why sell online?

Yulek26 (Tver) 10 days ago

Sonya, what country do you live in? They sell on the Internet, because shops and pharmacies set their markup brutal. In addition, payment is only after receipt, that is, they first looked, checked and only then paid. And now everything is sold on the Internet - from clothes to TVs and furniture.

Editorial response 10 days ago

Sonya, hello. This drug for treatment alcohol addiction really is not sold through the pharmacy chain and retail stores in order to avoid inflated prices. Currently, you can only order official website. Be healthy!

Sonya 10 days ago

I'm sorry, I didn't notice at first the information about the cash on delivery. Then everything is in order for sure, if the payment is upon receipt.

Margo (Ulyanovsk) 8 days ago

Has anyone tried folk methods to get rid of alcoholism? My father drinks, I can not influence him in any way ((

Andrey () A week ago

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

Dismissal for alcohol intoxication is a logical reaction of any leader who has the right to both immediately terminate the employment relationship with a subordinate and to make a preliminary remark or reprimand to him. In any case, drunkenness is a serious reason for the delinquent employee to be suspended from duty on the day the misconduct was committed.

In general, the procedure for dismissal for drunkenness at the workplace is practically the same as the usual termination of an employment contract at the initiative of the employer, with the exception of some points: it must have Required documents proving the guilt of the dismissed employee.

From a medical point of view, there are several degrees of intoxication: light, medium and heavy, this is due to the percentage of alcohol in the blood:

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

Most often, the presence of more than 5% of alcohol in the blood causes serious alcohol poisoning or even to whom, which poses a particular danger to the health of the worker himself and can lead to lethal outcome. To prevent this, you need to immediately call an ambulance upon detection of a misconduct, and postpone the proceedings for a day when you can have a constructive conversation with the offending employee, and nothing will threaten his life. Drawing up an act on the employee being drunk in such a situation can be done on the same day, because the most important thing is that it be signed by at least two witnesses.

Legal basis

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

Art. 76 of the Labor Code of the Russian Federation, according to which the employer is obliged to remove from work an employee who appears in a state of intoxication. This measure is mandatory, and the manager must apply it at the time of discovery of misconduct.
Art. 81 of the Labor Code of the Russian Federation directly indicates that the head has every right to dismiss a subordinate if he came to work drunk. It is not necessary to make a preliminary remark or reprimand in this case, because just one gross violation is enough for dismissal, even if the employee has not previously been subjected to disciplinary sanctions.
Art. 192 of the Labor Code of the Russian Federation gives employers the right to apply any of the disciplinary sanctions (reprimand, reprimand or dismissal) against their subordinates who came to the organization drunk. Which one to choose depends directly on the desire of the leadership.

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

Before dismissing an employee, the manager must request an explanatory note from him. If it was not provided within two days, then he draws up the corresponding act. Failure to submit an explanatory note is not grounds for suspending the procedure for terminating an employment contract.
An employer may dismiss a subordinate not later than one month after the misdemeanor was discovered. An exception is when an employee is on vacation or on sick leave - this time is not taken into account.
Having issued an order to apply a disciplinary sanction, the head is obliged to familiarize the employee with whom it was drawn up against signature within three days.

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

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

To begin with, the director must record the fact that the subordinate is on the territory of the organization in a state of intoxication. For this, an act is drawn up and signed by two witnesses. Reports and complaints from other employees may be attached to the case.
The head issues an order to remove his employee from work, then requires an explanatory note from him.
Next, a memorandum in any form is prepared. It should reflect the grounds for dismissal and directly describe the situation itself.

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

Step-by-step instruction

In order to properly terminate an employment contract due to the appearance of an employee in a state of intoxication in an organization, you must do the following:

Draw up an act confirming that the employee is in a state of intoxication. This can be done by both the manager himself and the person responsible for the pass to the facility. After writing the act, it is necessary to enlist the signatures of two witnesses. It is desirable that they are not directly related to the delinquent employee and work in another department or division. Also, witness statements can be recorded in a memorandum.
After drawing up the act, the manager must demand an explanatory note from the subordinate, having previously issued an order demanding that it be provided within two days, and familiarizing the employee with it against signature.
After receiving an explanatory note, the employer has a month to decide which disciplinary sanction to apply to the employee: a remark, a severe reprimand or dismissal. If, after two days, an explanatory note has not been provided, then an appropriate act is created and certified by the signatures of two witnesses. It should be noted that weekends holidays are not taken into account, and if the perpetrator has not been able to explain his misconduct in writing, this cannot in any way prevent his dismissal.
Further, the employer draws up a memorandum in any form, and it is supported by other documents: an act on appearing at work in a state of intoxication, an explanatory note for the employee himself, or an act on his refusal to provide written explanations.

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

The head draws up an order for dismissal for drunkenness, the sample of which is established by the Decree of the State Statistics Committee of 01/05/2004 No. 1 and is filled out in the T-8 form. If several people are subject to dismissal, then another form is used - T-8a.
The issued order is recorded in the appropriate journal.
An employee of the personnel department signs a note-calculation according to the Decree of the State Statistics Committee of 05.01.2004. No. 1 form.
Directly on the day of dismissal, a full payment is made to the employee: a salary is issued for the time worked, compensation for unused vacation and other payments provided for by labor legislation or a collective agreement.
Information about the dismissal is entered into the employee’s personal card, then they are certified by his signature and the signature of an employee of the personnel department. If the dismissed person refuses to sign on the card, then an appropriate entry about this is made on it.
The workbook is filled out. The dismissed employee must sign it.

Dismissal under the article for drunkenness: entry in the work book

As you know, the correct filling of documents has great importance, and no errors are allowed here. To properly issue a work book, you should use a simple instruction:

Enter in the first column serial number records.
Next, enter the date of dismissal: day, month and year in numbers.
Information is entered in the next column “Information about hiring ...”: the reason and a link to an article in the Labor Code of the Russian Federation. Example: " Labor contract terminated at the initiative of the employer in connection with the appearance at work in a state of intoxication, paragraphs. b p. 6 art. 81 of the Labor Code of the Russian Federation.
After the reasons, in the next column “Name, date and number of the document ...”, data on the document that is the basis for making these entries is indicated - the dismissal order.
In conclusion, the head or employee of the personnel department, after all the entries, puts the seal of the organization and his signature, then issues a book to the dismissed employee, who, in turn, also signs on the same sheets.

After issuing a work book, an employee of the personnel department must make an entry about this in the Book of Movement work books. If the dismissed person cannot receive this document due to absence from the workplace, the employer needs to send a notification by mail about the need to come to the organization and pick up the documents, or give their consent to the postal item. There are frequent cases when former employees do not give an answer, but after a while they come to the company on their own for their documents, and then the manager is obliged to issue them no later than 3 days after receiving a written request.