Dismissal under the article for drunkenness. The right to dismiss: what the law says. Payments and compensation

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

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

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

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

How to fire an employee for drinking in the workplace

Dismissal of an employee is possible only when he was noticed in a state of intoxication directly at his workplace, on the territory or at another facility where he was directed by the employer (on a business trip, at a branch of the company, at the customer's facility). If he is seen in a state of intoxication outside of his working hours, then you can limit yourself to a warning. In the case of irregular working hours, it is already more difficult. If an employee drank on the premises 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 the checkpoint, this is also not considered a reason for dismissal. You cannot fire a minor employee without the consent of the state labor inspectorate and the commission on juvenile affairs. It sounds rather strange, but a pregnant woman cannot be removed from business in a state of drunkenness according to article TC. The Labor Code stipulates how to fire an employee and how he can protect himself when he is fired.

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

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

How to correctly record the state of drunkenness of an employee

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

Drawing up an act upon dismissal for drunkenness

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

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

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

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

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

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

How to punish an employee for drunkenness in the workplace

If a drunk worker behaves aggressively, tries to use force, feel free to call the police or an ambulance. After drawing up the documents described above, a decision is made what will be the next step - dismissal for drunkenness or forgiving a negligent employee. If the decision to say goodbye to the employee is firm, then a corresponding entry is made in the work book. It is prescribed that the employment contract was terminated at the initiative of the employer in connection with the appearance at the workplace in a state of alcoholic intoxication, the article of the Labor Code, 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 on wages and unused vacation days and issue him a work book. Naturally, in this case, severance pay is out of the question. When an employee in a state of intoxication behaves peacefully, but the expediency of dismissal is obvious, it would be better to agree with him about dismissal by agreement of the parties.

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

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

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

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

From the point of view of the law, drinking itself alcoholic beverages 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 overwhelming majority of cases, after the fact of drinking alcohol-containing products at work, an employee can be fired for it.

The legal regulation of this issue is considered in the provisions of Article 81 of the Labor Code of the Russian Federation. Drunkenness in the workplace is considered a gross violation of labor discipline, which is enough to dismiss even with a single occurrence of such an event. However, the opportunity to fire an employee under this article can not always be effectively implemented - the employer should follow the established procedure as closely as possible in case of intoxication at work. Since dismissal under the article for intoxication is an extremely negative reason and is reflected in the work book, most of those dismissed In a similar way workers are seeking to re-establish their positions or to achieve at least a change in the wording of dismissal in court.

Previously, it was possible to fire an employee only for being 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 the entire territory of the enterprise with a workplace, as well as another territory where the employee performs his job, including on the territory of other business entities.

How to get fired for drinking in the workplace

It is quite difficult to fire an employee for drinking in the workplace. The current labor legislation requires 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 to act for an employer or a responsible employee in case of a desire to dismiss an employee for drunkenness or being intoxicated. At the moment, there are several possible algorithms of actions for terminating employment contracts with such unreliable workers, each of which has its own advantages and disadvantages.

The first option involves the use of an employee's medical examination 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 later in court, which will automatically lead to the recognition of the entire dismissal as invalid. In general, the step-by-step dismissal of an employee for intoxication in in this case as follows:

1. First of all, the employer must remove the employee from the performance of work duties. The norms of 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 activities 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. So, a one-time intoxication may well provide for a day of suspension, while long binge can provide an employer with the opportunity to suspend an employee for a longer period. It should be noted that the reluctance to remove a drunk worker from the performance of duties can 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 drafting, however, it can be established by internal regulations enterprises and has certain general principles preparation. The act must indicate the last name, first 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 who can confirm the fact of intoxication.
3. On the basis of the act, the employee can be sent for a medical examination for a state of intoxication of any type. 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 doctor can also conduct an examination. general practice or a specialized mobile group of doctors.
4. An employee may refuse to undergo a medical examination. It is illegal to use force or other methods of pressure against him. If the employee refuses to undergo a medical examination for intoxication, this refusal to mandatory must be recorded by at least two witnesses. In addition, the employee is not required to undergo an examination only at the institution indicated by the employer. He has the right to pass 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 aforementioned order. In addition, after the issuance of the order, the employer must request an explanatory note from the employee, and the refusal to give explanations must be signed by two other employees.
6. On the day of dismissal, the employer issues a work book, a certificate of average earnings, as well as compensation for previously unused vacation days and all unpaid wages. The employer can choose the day of dismissal himself - including directly on the day of issuance of the medical examination.

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

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

1. Getting the employer to know about drunkenness. Such information can be obtained from other employees in orally or in the form of a memo.
2. Making a decision to suspend an employee.
3. Creation of a special commission to investigate disciplinary offenses. It should consist of at least three people.
4. The commission's investigation into the employee's intoxication. During the investigation, appropriate acts are drawn up indicating signs of the commission of an offense - direct and indirect, as well as testimony or other ways of fixing the offense - video and audio recording.

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

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

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

• Situations when intoxication has arisen as a result of taking medications by an employee on the recommendation or prescription of a doctor.
• If drunkenness was the result of non-compliance with safety and labor protection and occurred for this reason. For example, in case of contact of an employee with poisonous, toxic or intoxicating substances.
• When an employee belongs to a category in respect of which dismissal is inadmissible 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 can be fired in general order upon notification and obtaining consent from the labor inspection for minors or the guardianship and guardianship authorities.
• In a situation where the appearance at the workplace in an intoxicated state occurred during non-working for this employee time. In this case, the employer can only demand the removal of the employee from the workplace, but does not have the right to dismiss him.

In general, dismissal for a state of intoxication 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 procedure for dismissal for intoxication

The employer should be given Special attention the wording of the dismissal in the employee's work book. It is imperative to indicate as the basis for termination of the employment contract, paragraphs. b, clause 6, part 1 of 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 office through the court. The use of other wording is unacceptable.

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

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

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

Do not call for a medical clearance ambulance... Ambulance workers medical care do not have the right to conduct an intoxication test, as well as the appropriate equipment. Therefore, if an ambulance is called for examination, the employer may be held liable for a knowingly false call and the payment of a corresponding 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 for him.

Unfortunately, drinking alcohol in the workplace or showing up at work while drunk is not uncommon. The employer has the right to dismiss such an employee, but only by correctly filling out all the necessary papers.

Dismissal for alcohol intoxication is a disciplinary sanction, which is provided for in Art. 81 of the Labor Code of the Russian Federation. But the fact of misconduct must be recorded correctly, and all documents must also be drawn up correctly. Otherwise, such an employee may sue for illegal dismissal.
If personnel and medical documents are drawn up incorrectly, the court recognizes the fact that the dismissal did not occur in accordance with the Labor Code of the Russian Federation. After that, the employee must be reinstated in the same position. The employer must pay him wages for forced absenteeism, and in some cases, also compensate for moral damage.

In pp. 6 p. 6 art. 81 of the Labor Code of the Russian Federation states that the employer has the right to fire an employee for a single appearance at the workplace while intoxicated. But there is a limitation - dismissal for drunkenness in the workplace.

That is, if an employee has already appeared at work in an inadequate state (that is, he drank before the start of the working day) or was noticed with a bottle after the shift, then this does not threaten him. The only thing is that if he comes to work in this form, he is threatened with suspension from his work functions and a reprimand. If he is noticed after the shift in this state, and in the morning he comes to work normally, then the employer has no right to apply sanctions to him.

But if the employee drank alcohol (before the start of the working day, what after) on the employer's territory, this may become a reason for the employer to initiate an internal investigation. Such actions of the employee are a violation of the labor and work process, and can lead to unpleasant consequences with other workers.

However, not all employees can be fired for such a violation. There are certain categories that are "immune":

• minor employee. Even if he is drunk and there is a medical report, he can only be dismissed by obtaining written permission from the guardianship authorities or from the labor inspectorate;
• dismissing a pregnant woman on this basis is possible, but difficult. It is necessary to prove that she was drunk, and did not take alcohol-containing medications, which were prescribed to her by the attending physician.

Article of the Labor Code of the Russian Federation for dismissal for drunkenness

Dismissal for drunkenness is provided for in Art. 81 of the Labor Code of the Russian Federation. But so that the employee does not sue, it is necessary to observe all the nuances of such a process.

To do this, it is necessary to correctly identify alcohol intoxication. Impaired speech and coordination of movement can cause stress in a person or signs of an incipient illness. Therefore, it is worth paying attention to other symptoms that are inherent in alcohol intoxication. It:

• aggressive behavior;
• the skin on the face turns red;
• dilated pupils;
• the employee is verbal nonsense;
• he has hallucinations;
• appropriate odor from the mouth.

If the employee has these signs, then you can call the doctors to fix the fact. Only if there is a medical report on the employee's condition, it is possible to continue the procedure for applying a disciplinary sanction to him in the form of dismissal.

Now you need to correctly draw up the documents. This requires:

• draw up a memo. This is done by the person who discovered the employee in such a state. The note is drawn up in the name of the head structural unit or in the name of the director. The purpose of such a note is to inform the management about the violation of labor discipline. The form of the document is free, but always written;
• management reviews the note and decides to investigate the case. For this purpose, a special commission is assembled. But first you need to issue an order on the convocation and composition of the commission. Its members must be at least 3 employees, then it does not have to be leadership positions... It can be absolutely any employee of the enterprise;
• the commission does not make a decision on this employee, it only records the fact of his stay at the workplace in a state of alcoholic intoxication. For this, an act is drawn up, which describes in detail:
  • present characteristic signs alcoholic intoxication - smell, lack of coordination, etc.
  • the actions that he performs;
  • other signs that may indicate that he is drunk.
• need to call the doctors. Only they can reliably confirm the state of intoxication. In this case, it is necessary to obtain the written consent of the employee to undergo a medical examination. If he refuses the procedure, it is necessary to draw up an appropriate act. If the employee agrees, then the arrival of doctors or the transportation of the employee to the medical facility, as well as all the necessary medical procedures are carried out at the expense of the employer. If the intoxication is not confirmed, then the employer has no right to demand compensation for these expenses from the employee. You cannot call an ambulance, since carrying out such a procedure is not their responsibility. Important! The allowed blood alcohol value is 0.16 ppm. This value may be due to the fact that the employee uses medications containing alcohol or, trite, drank kvass or kefir. If the alcohol content in the blood exceeds this indicator, then the doctors draw up a protocol in the established form 155 / y;
• after that, a written explanation of the incident must be taken from the employee. This should be done after it becomes normal. In a state of intoxication, he is unlikely to give an intelligible explanation. The employee has the right to refuse to give written explanations. Then you need to draw up another act. If he writes explanatory note, then it is filed to the act of fixation of intoxication, which was drawn up by the relevant commission;
• now all documents are transferred to the company's management for further investigation and decision-making on the problem.

A director or other person authorized to make the relevant decisions can do the following:

• fire the employee. This happens if the drunkenness is systematic;
• apply another disciplinary sanction. As a rule, if an employee is highly qualified and responsible, and the state of alcoholic intoxication is noticed for the first time, the management manages to get by with a reprimand.

If a decision was made to dismiss the offending employee, then an appropriate order must be drawn up. The text of the document lists all the signs and evidence found. It is necessary to indicate the full name of the supporting document and put the date of its execution. It is necessary to familiarize the employee with the order. He must sign it. If he refuses to do this, then an appropriate act must be drawn up, which will be signed by the head of the dismissed employee and two witnesses.

On the last working day, the dismissed employee receives all his documents in his hands, as well as a full payment, which includes:

• wages for the days actually worked from the beginning of the month and until the day of dismissal;
• compensation for unused vacation;
• severance pay is not eligible, since the grounds for dismissal are the employee's culpable actions.

In his hands he should receive:

• his work book, which will indicate that he was dismissed on the basis of paragraphs. 6 p. 6 art. 81 of the Labor Code of the Russian Federation;
• certificate in the form 4-FSS;
• certificate on the form 2-NDFL.

As practice shows, in the presence of such a wording in the work book, it is almost impossible to get a good and paid job again. Therefore, if there is such an opportunity, you need to try to persuade the boss to resign by agreement of the parties or on your own initiative. As a rule, if the employee worked well and he had no complaints, the employers meet halfway and terminate the contract not "according to the article." The presence of such a wording is the "wolf ticket" for paid work.

If an employee performs the labor functions of a driver at an enterprise, then he is also threatened with dismissal for drunkenness while driving. Termination procedure labor relations exactly the same as when drunkenness in the workplace, but here the proof will be the protocol of the traffic police inspector, a medical examination and a court decision to deprive such a driver of a special right - that is, the right to dismiss vehicle... And since his labor duties are directly related to the management of the vehicle, then he can carry out his labor activity he will no longer be in this position.

The basis for issuing a dismissal order will be a court decision to deprive this employee of a driver's license for a certain period. The driver must be familiarized with this order against signature. If he does not sign the order, then an appropriate act must be drawn up. On the last working day, the dismissed employee receives the payment and all the documents.

If there is an opportunity to come to an agreement with the employer, it is better to use it and try to quit not “according to the article”, but at your own request or by agreement of the parties.

This is the best way out of this situation, especially if the driver did not have such complaints before and was not a participant in such incidents. After the license is returned, it will still be possible to get a job as a driver again.

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

Dismissal for drunkenness in the workplace - article

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

Dismissal for drunkenness - step by step instructions

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

Suspension from work

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

Drawing up an act of violation

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

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

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

Medical clearance

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

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

Getting an explanatory

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

Drawing up a dismissal order

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

Making an entry in the work book

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

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

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

FAQ

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

Who shouldn't be fired for drunkenness at work?

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

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

What degree of inebriation can lead to dismissal?

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

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

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

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

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

Can I get fired for drunkenness without a medical examination?

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

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

In subparagraph "b" of the sixth paragraph of Article 81 of the Labor Code of the Russian Federation, amended in 2006, it is indicated that drunken appearance means that an employee is in such a state not only directly at his workplace, but also in general on the territory of a company or other facility , where he carried out the instructions of the leadership.

Drunkenness itself - not a legal but a medical term. Its signs can be, for example, redness of the skin of the face, changes in pulse rate, tremors of the hands, the presence of a clear smell of alcohol from the mouth, slurred speech. However, a lot of this can occur in a person with a high temperature or as a result of taking medications. This should also be taken into account.

In what cases is it possible?

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

Persons under the age of majority can be dismissed only after confirmation by a trade union body or a special commission dealing with minors' affairs and protecting their rights. This is spelled out in article 269 of the Labor Code.

An employer does not have the right to terminate a contract with a pregnant woman, even if she comes to work in a drunken state. According to Article 261 of the Labor Code, a pregnant woman can be dismissed only if the enterprise is liquidated.

It is also impossible to lay off an employee. harmful production accidentally intoxicated as a result of toxic poisoning. Such an offense is not subject to punishment, since it was committed without intent.

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

According to the Labor Code, sanctions can only be applied to an employee if he is intoxicated. An employee who was drunk on the premises of the enterprise cannot be laid off if this happened during his non-working hours, for example, after completion work shift, on holidays, weekends, etc.

Options for the development of events

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

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

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

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

How to fix intoxication?

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

The medical examination must not break the law. For examination, you can only invite specialists - narcologists or psychiatrists from narcological dispensaries or other medical institutions. You cannot call the first doctor you see. according to an ad in a newspaper, since he may not have an appropriate certificate and license for this type of activity. All procedures must be in accordance with the instructions.

Employee has the right to refuse to pass medical examination, do not force him to do it against his will. But then a special act is drawn up confirming this refusal.

First required document Is an act indicating that a person was drunk in the workplace. The form of drawing up the act can be arbitrary, but it must indicate the date, data of the employee and his position, the degree of intoxication, the period of suspension from work, at the end the leader and witnesses put their signatures.

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

Order processing procedure

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

For the correct removal, a separate order should be drawn up, which can be signed by the head of the entire company or structural unit. Punishable by order must be familiarized with signature. The timesheet calculates the number of hours worked before an employee was suspended. Also, a special note is made in the report card, meaning that with a certain number the employee was not allowed to work on the basis of the current legislation; the salary during this period is also not charged to him.

In the event of a final decision on the dismissal of an employee, an order is drawn up. It indicates the date, then the document is assigned a number. All information about admission to work, transfers, qualifications is also indicated, it is imperative to prescribe specific reasons for dismissal and a link to an article in the Labor Code of the Russian Federation.

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

Other types of employee punishment

Exists different options penalties that the employer can apply. It:

1. Dismissal.
2. Comment.
3. Rebuke.

When choosing a sanction should be guided by how the employee was characterized for the entire time of work in the organization. If he showed himself well, others disciplinary action he did not have, then you can agree to terminate the contract for mutual consent parties. An entry in the work book about dismissal under this article can have a very negative effect on your future career.

The employee may try to prove in court that the procedure was carried out illegally. If there is not sufficient evidence, then the employer is better off applying more soft way punishment - a reprimand or reprimand.

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