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Dismissal for alcohol intoxication step by step instructions. Medical examination and act of violation. Dismissal for drinking - step by step instructions

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

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

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

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

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

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

How to get fired for drinking at work

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

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

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

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

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

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

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

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

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

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

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

Other nuances of the dismissal procedure for intoxication

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

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

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

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

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

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

You can only be fired for appearing drunk at work: finding an employee in such a state outside of work, albeit in work time, does not give reasons for dismissal on the grounds in question. The "work" referred to in sub. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, it is recognized:

  • directly workplace employee
  • the territory of the employer 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 an enterprise. The courts, as a rule, recognize such a 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 (AO) of the Vologda Regional Court dated February 8, 2013 No. 33-507 / 2013). The dismissal of a drunk employee caught in such a state at the checkpoint of the customer organization, on the territory of which the person works on behalf of the management, is also lawful on similar grounds (decision of the Moscow Regional Court dated 12/14/2010 in case No. 33-24139).

Circumstances of time: was the time working

In order to dismiss an employee under sub. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, he must be drunk precisely during his working hours, which is determined in the rules work schedule, labor contracts, shift schedules. Circumstances of time directly affect the possibility of dismissal for drunkenness at work. So, for example, if the detention drunk at the checkpoint took place before the start of the working day, then the dismissal will be declared illegal (for example, JSC of the Yaroslavl Regional Court dated 10/18/2012 in case No. 33-5617).

Considering this requirement law, it is impossible to dismiss an employee on the grounds under consideration who:

  • during a lunch break he drank alcohol at work, after which (until the end of the break) he left work;
  • 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 an employee was drunk while traveling to the place of business trip. The cabin of a train, aircraft or other vehicle cannot be classified as a workplace, and the travel time cannot be classified as working time. Therefore, it is impossible to dismiss such an employee for drunkenness at work (cassation ruling of the Novosibirsk Regional Court dated 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 the employee is drunk, it is recommended, first of all, to record the fact of intoxication. The presence of evidence of such a state of an 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 pointed out by the Plenum Supreme Court RF in para. 3 paragraph 42 of the resolution of March 17, 2004 No. 2 (hereinafter referred to as Resolution No. 2).

Sometimes it is not possible to conduct an examination for objective reasons. For example, there is no medical institution of the corresponding profile nearby, or an employee is against the examination, and it is possible only if voluntary consent is given (as well as any medical procedure performed without vital indications).

IMPORTANT! It is recommended to start by drawing up an act of appearing 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 and during its implementation).

There are many judgments, testifying to the possibility of proving intoxication without the opinion of doctors. The employer's chances of winning a dispute about the legality of dismissal increase if there is a set of evidence - an act, a report, testimonies of witnesses, a memorandum / memo (see, for example, JSC of the Arkhangelsk Regional Court dated February 6, 2013 in case No. 33-539 / 2013).

Creation of a commission to draw up an act

In some organizations, there is a permanent commission to fix the drunken state of employees. If there is none, then it is better to create it.

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

  • the basis for the order (usually this is a memorandum on the discovery of a drunk worker);
  • the purpose of the commission;
  • the composition of the commission indicating the full name and positions;
  • 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 on an employee in a state of intoxication?

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

The form of the act is not 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 came 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 December 18, 2015 No. 9 33n, hereinafter referred to as the procedure). Clause 6 of this document defines the signs of intoxication, each of which is already enough to be sent for examination, including if the employer suspects that the employee is drunk:

  • unstable posture and gait;
  • alcoholic smell;
  • speech disorders;
  • abrupt 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 in the act, an appropriate conclusion is made.

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

Medical conclusion as proof of the fact of intoxication

After drawing up the act, it is necessary to offer the employee to undergo an examination in a medical institution. According to clause 3 of the procedure, it can only be carried out by organizations with a license for medical practice, which includes, 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 dismissal of an employee.

If the employee agrees to the procedure, he is given a referral (subclause 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 examination, and checking 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 in the conclusion of doctors. There is judicial practice according to which dismissal in such situations is recognized as lawful. This took into account the time elapsed from the preparation of the act to the medical examination (for example, JSC of the Yamalo-Nenets District Court dated October 24, 2013 in case No. 33-2269 / 2013).

At the same time, if such signs are not described in the act (or there is no act), and the examination revealed only the fact of drinking alcohol (without external signs intoxication), dismissal may be declared illegal (for example, JSC Primorsky Regional Court dated 07/09/2015 in case No. 33-5668). Note that this confirms the need in all cases for the speedy preparation of an act with detailed description employee and his condition.

Suspension from work duties before dismissal for drunkenness

The employer, after establishing the fact of intoxication, is obliged to remove the violator 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 wages will not accrue during this time.

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

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

According to part 2 of Art. 76 of the Labor Code of the Russian Federation, an employee cannot be allowed to work during the period of preservation of the circumstances for which he was removed. 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 pass for several days.

IMPORTANT! If the employer, having established the fact of intoxication, nevertheless allowed the violator to work, then liability 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 violating 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

Getting fired for drunkenness at work is nothing but a measure disciplinary action. 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 of the St. Petersburg City Court dated September 23, 2014 No. 33-14346 / 2014).

It is best to do this after the end of the suspension period. If you request an explanation immediately after discovering a drunk at work, the court may find a violation, indicating that the employee's intoxication caused his inability to write a correct explanation.

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

After 2 working days (it is during this period that the explanatory note should be written), the employer has 2 options:

  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 sufficient for dismissal.
  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 employee was poisoned by toxic fumes at work, resulting in toxicological intoxication.

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 misconduct in question. Therefore, it will be necessary to apply a different type of penalty to it (JSC of the Khabarovsk Regional Court of 05/08/2015 in case No. 33-2767 / 2015).

There is nothing difficult in drawing up a dismissal order for drunkenness. A sample 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 it that acts as a disciplinary sanction. That is, there is no need to issue a separate order to bring to disciplinary responsibility.

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

Courts do not always recognize dismissal as proportionate to the severity of such an offense as appearing drunk at work. Therefore, in each specific case, the employer should pay more attention to the explanations provided by the delinquent employee, as well as evaluate the previous behavior of the offender and his attitude to work in general. This was pointed out by the Plenum of the Armed Forces of the Russian Federation (clause 53 of Resolution No. 2), this is also mentioned in Part 5 of Art. 192 of the Labor Code of the Russian Federation.

So, the Tverskoy Regional Court, in its decision dated March 10, 2015 in case No. 33-687, declared the dismissal illegal, citing the following:

  1. The employee has been with the company for a long time.
  2. Disciplinary sanctions against the employee have never been applied before.
  3. The employee is close to retirement age.
  4. There were no negative consequences of misconduct for the employer.

Thus, before making a decision to dismiss an employee for appearing drunk at work, one should re-evaluate the situation and make sure that mandatory conditions to terminate an employment contract, such as:

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

You can be fired for drunkenness only if these facts are combined, one of them is not enough. In addition, the employer should consider imposing a non-termination penalty based on the characteristics of the employee.

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”, paragraph 6, part 1, 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 be reinstated at work and even receive compensation for forced absenteeism.

Under the basis specified in sub. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, employees who appeared in a state of intoxication at their workplace during working hours or on the territory of the employer organization or facility where, on behalf of the employer, the employee was supposed to perform a labor function, fall under the category. In accordance with paragraph 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 of the Russian Federation of the Labor Code of the Russian Federation”, employees who were during working hours at the place of performance of labor duties (for example, on a business trip in another city) in a state of intoxication. It does not matter whether the employee was suspended from work in connection with the specified condition.

Rules for terminating an employment contract

Terminate the employment contract with the employee under sub. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation - in the event of a single gross violation by an employee of labor duties, namely, his appearance at work in a state of alcoholic, narcotic 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 Art. 76 of the Labor Code of the Russian Federation. The head of the structural unit where the delinquent employee works issues an appropriate order (instruction) on this occasion.

Then the fact that the employee appeared at work drunk must be documented.

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

Note!

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

An act fixing the state of intoxication can be drawn up by the immediate supervisor of the dismissed person, and the head of the enterprise, and the person responsible for admitting a particular employee to work. And testimonies can be recorded in memorandums and other similar documents.

The day after the employer established and documented that the employee was in a state of intoxication, a written explanation must be requested 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 needs to provide explanations. With this order, the employee is introduced 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 period for giving explanations starts from the next day and the two-day period established by law does not include weekends.

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

Important!

Upon dismissal under sub. "b" p. 6 h. 1 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: how much the state of intoxication affected the employee's performance of his labor function. This may be expressed in the fact that the employee has created a threat to himself and third parties.

If a decision is made to part with the employee, it is necessary to prepare a memo addressed to the manager who has the right to hire and dismiss employees, describing the employee’s disciplinary offense, a draft order on his dismissal under subparagraph "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation. TO memo and the order must attach a complete package of documents:

An act on the appearance of an employee at the workplace in a state of intoxication;

Protocol of medical examination;

Order (instruction) 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 came to work with signs of another, non-alcoholic intoxication, the procedure will be the same. In the relevant act, it is also necessary to describe the state of intoxication of the employee.

It is important to know that under the influence of drugs on the body, inhibition of reactions is observed or, conversely, increased anxiety, constriction or dilation of the pupils, impaired coordination of movements in the absence of the smell of alcohol.

Toxic intoxication in general resembles alcohol intoxication - the same lack of 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 under sub. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation refers to the type of disciplinary sanctions, therefore, it is necessary to follow the procedure for applying penalties in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness, being on vacation, as well as the time required to take into account the opinion representative body workers. It is important to bear in mind that the moment of detection of absenteeism is not the day on which the absence of the employee was discovered, but the moment the reasons for his absence are clarified, that is, the date the explanation was received.

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 sanction cannot be applied later than six months from the date of the misconduct (and not detection!) (Part 4, Article 193 of the Labor Code of the Russian Federation).

In this case we are talking on dismissal for a committed disciplinary offense (part 2 of article 192 of the Labor Code of the Russian Federation). We present the required algorithm.

1. We collect documents confirming the fact of committing guilty acts by the employee (medical report, official, memorandums, acts). An example of the act is given on p. 98.

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

3. We demand a written explanation from the employee about 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 act of refusal to provide an explanation is given on p. 100. An employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction (part 2 of article 193 of the Labor Code of the Russian Federation).

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

5. We issue an order (instruction) on the application of a disciplinary measure 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 to apply a disciplinary sanction 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 No. 1 dated 05.01.2004). We give the employee to familiarize himself 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 letter of resignation 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: appearing at work in a state of intoxication (subparagraph “b”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation) and the employee’s personal card (form No. T-2). A sample entry in the 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 (Art. 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 to apply a disciplinary sanction. This document is drawn up to justify the termination of the employment contract.

Please note that Rostrud, in a letter dated 06/01/2011 No. 1493-6-1, said that in order to formalize a dismissal for committing a disciplinary offense, it is sufficient to issue an order to terminate the employment contract in the form No. T-8, which indicates a memorandum and explanatory notes as the basis worker. At the same time, the Federal Service

recognized the established practice of issuing two orders, on the application of a disciplinary sanction and on dismissal, which does not contradict the law.

What else to remember

Termination of an employment contract with an employee under sub. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation is carried out at the initiative of the employer.

People often wonder if they can be fired for drinking in the workplace. It all depends on when exactly the person was caught at the workplace in a state of intoxication: during non-working or during working hours. Dismissal under the article for drunkenness is possible only if there are witnesses that the employee came to work drunk or this fact is confirmed by a medical examination.

Imagine this situation: the end of the working day, a colleague has a birthday. Gathered, sat, drank. Is it possible to qualify this as drunkenness at work and use it as a dismissal under the article? If working time has already ended, it will be illegal.

But if the working day is still going on, a person, in accordance with the current labor legislation, can be charged with two charges:

  1. Drinking alcoholic beverages at the workplace;
  2. Presence at work in a state of intoxication.

These two reasons are sufficient grounds to fire an employee for drunkenness. And if the manager decides to get rid of the employee, he can begin to spin this case towards dismissal for appearing at work in a state of intoxication. In doing so, he will refer to Art. 81.6b of the Labor Code, which prohibits coming to work drunk even once.

To issue a dismissal order for drunkenness, you must have on hand documents confirming the appearance of an employee at work drunk. One of such evidence that the court takes into account, in addition to the conclusion of a medical expert, is an act on the employee being in a state of intoxication at the workplace.

There is also an answer to the question of how to dismiss an employee for drunkenness if he has not done an examination. It is enough that this event be confirmed in writing by two colleagues in free form (samples of the act can be found on the Internet).

One of the answers to the question of how to avoid being fired for drunkenness, if the boss firmly wants to fire a person, is to try to write a statement of your own free will.

Perhaps the boss will go forward, since being fired for drinking alcohol at work is a very troublesome task that requires fiddling with a whole bunch of certificates and papers. Another option would be to try to replace the dismissal for drunkenness with a disciplinary action. This can succeed if the person working is a particularly valuable and skilled worker.

Thus, it is obvious that it does not hurt for employees to be well aware of which days the company has declared as public holidays and non-working days. This will make it possible not to be afraid of any inconsistencies with the celebration, since everyone has the right to rest.

If a reprimand is made

It also happens that a person simply does not have a relationship with his superiors, but he does not want to fire him. But for appearing drunk, he can reprimand, adhering to the rules established by law. First of all, he must explain to the employee what his violation is. This step is usually performed orally. For example - drinking drinks and drunkenness.

The supervisor is also required to propose in writing this person who has committed an official misconduct, write explanatory note. This is important to do if an employee believes that they are being wrongfully accused and are going to defend their rights in the future. After the employee has a written request from his superiors, in accordance with the current labor law, he will have two days to write an explanatory note.

It is better to use this time effectively and seek qualified help in compiling the text of this note, for example, a good lawyer or lawyer. After the employer receives the required explanation from the employee, he can issue an internal investigation order.

The boss will have to collect the necessary evidence that the appearance at the workplace in a state of intoxication really took place. For example, a doctor's opinion (medical examination) is required, which must attest to signs of alcohol intoxication. If the document is drawn up not at the workplace, but two days after the incident, the conclusion of the narcologist will be invalid. The fact is that most of the alcohol will leave the body by this time, and its remnants can be explained that the person drank outside of working hours.

Why you shouldn't drink at work

Of course, the question may arise why there is an article at all that allows dismissal for the appearance of an employee in a state of intoxication. Many people believe that whether or not they drink in the workplace is their own business, and no one has the right to intervene and decide for them. At the same time, they do not think about how alcohol and the state of intoxication can interfere with the normal performance of official duties and safety rules in the workplace.

The fact is that drinking alcohol in the workplace is expensive not only for the enterprise, but also for society as a whole. Losses are expressed in billions due to a decrease in labor productivity, in accidents and accidents, personal tragedies and broken families. The use of alcohol in the workplace is especially dangerous, since it is an epidemic of a hidden scale, which, due to its mass nature, does not always come to the surface.

Alcohol is a serious factor in occupational injuries in more than half of the recorded cases. People who abuse alcohol are up to ten times more likely to be absent from work than non-drinkers.

How to identify alcohol addiction in an employee

Since the presence of an employee's problems with alcohol negatively affects the results and productivity of labor, managers are required to monitor production discipline and promptly identify employees who abuse alcohol. Sometimes these problems are not so obvious because many people tend to hide their drinking.

If the manager cannot directly convict a person of drinking alcohol, he may suspect alcoholism in an employee for the following facts:

  • Constant delays.
  • Frequent sick leave.
  • Absence from work on certain days, for example, on the day after salary, on Mondays, on Fridays, etc.
  • Inexplicable absences from work without permission.
  • Frequent unplanned absences from work under various pretexts - home repairs, problems with the car, problems in the family, with the law, etc.
  • Sometimes an employee is absent from work, but the time of his absence is delayed without explanation.

Such workers often have problems with the direct performance of work duties. Among them - failure to complete tasks and work by the appointed date, negligent and frivolous attitude to work duties, poor quality of work. At the same time, you can often hear a lot of excuses from the employee regarding non-fulfillment of tasks and delays, and he himself is unable to objectively evaluate the results of his work.

Sometimes, people who have a drinking problem, while working on a long-term project, hide facts that may indicate that they are not doing their job. If you suspect they have alcoholism, you need to pay attention to their relationship with other employees: they are often tense. Also, such people try to draw in and impose their vision and attitude towards alcohol on other people.

People who have problems with alcohol often have problems with money: they often borrow money from colleagues, constantly get into debt, and have problems with bank loans. The mood of people who abuse alcohol is often militant. They are inclined to argue, disagree, they have constant irritability, especially in the morning after weekends and holidays.

The following symptoms indicate that a person is an alcoholic:

  • The smell of alcohol.
  • Staggering gait.
  • Red eyes.
  • The smell of alcohol.
  • Frequent mood changes, unreasonable laughter and a loud voice.
  • Excessive use of various cosmetics, mouthwashes and chewing gum.
  • Trembling of hands.
  • Sleepiness at work.
  • A person can come to work drunk.

The presence of these signs does not necessarily indicate that a person has a drinking problem. But, if they are often found, this should not go unnoticed.

If the employee is drunk

One of the most delicate situations for superiors is when alcohol intoxication the employee clearly catches the eye. In this case, there are many ways to adequately respond to the current situation.

If the work is directly related to the performance of tasks associated with a risk to the life or health of other people, suspension from work and from the performance of these tasks should immediately follow. These situations include driving Vehicle, usage technical means, work with chemical and explosive materials and weapons, work in a hospital.

If a drunk worker interferes production process, it must be forcibly removed from the workplace. It can be either sending home or to a sobering-up station. If the drunk violently expresses his disagreement, it is possible to involve the help of the guards or the police. In this case, the protocol drawn up by employees law enforcement, will also be a document that can be presented in court. It is necessary to see that the drunk does not go unaccompanied, he must not be allowed to drive.

The next day, the manager is obliged to bring penalties and not leave the situation unnoticed. Often he uses diplomatic tactics, making it clear to the employee that a lot depends on the results of his work. So if he doesn't change better side their behavior and results of work, this can lead to the loss of a job.

If a person is nevertheless fired under the article for drunkenness, the question often arises whether the dismissed person is entitled to compensation for vacation, bonuses, etc. According to the current labor legislation, if a person quits under this article, on the day of dismissal he must receive in full all his earned money. This payment includes money for all vacations not used by a person, even if he has not been on vacation for several years.