From the article you will learn:
Appearing at the workplace in a state of intoxication is one of the grounds on which the administration of an enterprise has the right to fire the offending employee. However, to do this, the employer will have to comply with a number of conditions, without which the dismissal could be declared illegal in court, and accordingly, not only reinstatement, but also compensation. Let's take a closer look at what dismissal for drunkenness should look like according to the letter of the law.
Showing up at work while intoxicated
Regardless of the number of times, any appearance of an employee at the workplace in a state of alcohol or drug intoxication interferes with the normal functioning of the enterprise as a whole, because inappropriate behavior distracts such an employee and his colleagues from working moments, affecting the success of the company.
It is beneficial for the management of any enterprise when employees work efficiently and competently without unpleasant incidents or violations of discipline, so dismissing an employee who allowed himself to drink a little too much in the middle of the working day is a necessary measure that the manager must take.
The Labor Code of the Russian Federation allows employers to fire employees who dare to appear at the workplace while intoxicated.
Important
The Labor Code allows you to dismiss an employee who is not only under the influence of alcohol, but also under the influence of drugs (and any other) when he cannot fully perform his job and be responsible for his actions.
The dismissal of such an employee must be carried out in compliance with all rules and procedures. Otherwise, if something is violated, the employee will be able to be restored to his job with the help of a court decision.
In this article you will learn how to properly dismiss such an employee and what to do if you find yourself in such a situation as a violator.
Regulatory aspects of the issue
Showing up to work while drunk is a serious administrative offense that is punishable by law. Registration of dismissal for drunken behavior is prescribed in subparagraph b) paragraph 6) of Article 81 of the Labor Code (article of dismissal for drunkenness). A more precise mechanism can be found in:
- Resolution of the Plenum of the Supreme Council No. 2 of 2004 (clause 42);
- Order of the Ministry of Health No. 933n of 2015, Appendix 1 (Procedure for conducting examinations);
- Appendix 2 to Order No. 933n on clinical signs of intoxication;
- GOST R 7.0.9-2016 on the procedure for preparing primary documentation;
- Article 27.12.1 of the Code of Administrative Offenses of the Russian Federation on the procedure for sending violators for inspection
Pay attention to the fact that a drunk employee was recorded at the workplace. It is necessary to take statements from witnesses, record the time, exact date, details of the incident and its circumstances. Without this data, your statement will be unfounded and will have no basis during the trial.
Article 81 of the Labor Code of the Russian Federation
How to fire an employee for drunkenness? The main reasons for dismissal are divided into 4 categories:
- The initiative comes from the employee.
- The dismissal was agreed upon by both parties.
- Dismissal occurs due to external circumstances.
- An employee is dismissed by the employer (dismissal under Article 81 of the Labor Code of the Russian Federation)
A manager can fire an employee if he breaks the law by coming to work drunk. This is provided for in paragraph “b” of Part 1 of Art. 81 Labor Code of the Russian Federation.
If you manage to prove that the employee came to work inappropriately, that is, provide evidence that he cannot refute, then dismissal for drunkenness at work will pass without complications. Remember that the presence of alcoholic (or any other) intoxication must be recorded and, if possible, confirmed by a medical report (clause 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the use of ...” dated March 17, 2004 No. 2). If it is impossible to obtain it, then witness testimony, video camera recordings and other facts that could confirm that the offender behaved inappropriately will help you.
Requirement for the employee to provide written explanations
By virtue of Part 3 of Art. 192 of the Labor Code of the Russian Federation, dismissal of an employee on the basis of sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (for appearing in a state of intoxication at work) is a disciplinary sanction. Accordingly, the order of its application must be observed.
Before imposing a penalty, you must require an explanation from the employee regarding the situation that has arisen. Explanations must be requested in writing.
If the employee refuses, a corresponding report is drawn up about this (and again 3 witnesses must certify it). Explanations can be recorded in the report on the employee’s appearance in a state of intoxication (see sample above). Before drawing up an act of refusal to give explanations, you must wait 2 days (this is the period the legislator gives the employee to explain himself).
Medical examination procedure
The employer is obliged to offer the violator to go to a medical facility to be checked for the presence of alcohol in the blood.
The employee, in turn, has the right to refuse this offer. His refusal must be drawn up in the form of another act. Free legal consultation We will answer your question in 5 minutes!
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Do not forget that the manager will be able to draw up documents for dismissal only if a medical report reveals a certain amount of alcohol in the employee’s blood. If he took a sip of wine during lunch, it is unlikely that it would intoxicate him greatly and interfere with further work.
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To undergo a medical examination, the employer must issue a referral to a medical organization (clause 5 of the Procedure approved by Order of the Ministry of Health of Russia dated December 18, 2015 No. 933n). There is no official form of the document.
Example
LLC "Lotos"
OGRN 1231241241, INN 13498104124, KPP 123019840,
address: Kazan, st. Sidorova, 12
To the State Budgetary Institution
health care of the city of Kazan "City Hospital No. 10", Kazan, st. Kraeva, 1
June 23, 2021
Referral for medical examination No. 1n
Due to employee I. I. Petrov being at work on June 23, 2021, with signs of alcohol intoxication, I request that a medical examination be carried out on him.
General Director Sidorov V. Yu. /Sidorov/
I agree to the examination: Petrov I. I. /Petrov/
June 23, 2021
After the inspection, a new report is drawn up. In it, medical staff write a report on the employee’s condition.
Is it possible to be fired without a medical certificate?
The Supreme Court of the Russian Federation, when considering cases of dismissal of persons who appeared at the workplace in a drunken state, takes into account not only a medical examination, but also other documents confirming the fact of intoxication. Each case is individual, so it is impossible to say that video camera recordings and witness testimony work flawlessly in any case, but if you do not have a doctor’s report, this does not mean that it will be impossible to fire a negligent employee.
What documents are needed for dismissal?
After issuing a dismissal order, the employee receives back his work book and documents that were given to the manager upon joining (certificates, certificates, certificates).
Also, the dismissed person must receive certificates of contributions to the Pension Fund, a certificate of average earnings and 2-NDFL.
Order to dismiss an employee
The form for drawing up a dismissal order is Form T-8. In order not to look for it when writing an order, simply about the reason for dismissal (clause 6 of Article 81 of the Labor Code of the Russian Federation).
If an employee was noticed to be intoxicated more than once, then this also needs to be reflected in the order, but keep in mind that all incidents must be confirmed. If you ignored the employee’s condition, he will be able to challenge what was written in the order in court.
The Labor Code gives the employer 30 days after discovering that an employee is intoxicated to issue a dismissal order (Article 192 of the Labor Code of the Russian Federation).
Sample order to dismiss an employee for coming to work in a state of alcohol (or any other) intoxication:
Example
Open Joint Stock Company "Golden Key"
Document number: 60-k
Date of compilation: 04/17/2014.
Order
(order)
on termination (termination) of an employment contract with an employee (dismissal)
terminate the employment contract dated September 18, 2013
dismiss on April 17, 2014
Full name
Structural subdivision
Position (specialty, profession, rank, category, qualification)
Reason for dismissal (termination of contract): Single (repeated) violation by this person of his labor duties - being at the workplace in a state of alcoholic (or any other) intoxication, subparagraph “b” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
Grounds (document, date, number): Report of appearing at work while intoxicated dated April 14, 2014 No. 5, explanatory note (full name of the offender) dated April 16, 2014 No. 5
Head of the organization: General Director Personal signature: Explanation of signature:
The employee has become familiar with the order (instruction): (personal signature and date)
Reasoned opinion of the elected trade union body in writing
from (number)
Work book and what to write in it
The employer must transfer the basis line from the order to the employee’s work book. Do not distort, supplement, or adjust the reason for dismissal, as this may lead to your actions being challenged.
This is also important to know:
Dismissal during voluntary leave
The employee can ask the employer to enter the reason for dismissal in a more correct form, so that in the future there will be no difficulties with employment. Employment Law No. 1032-1 states that a person cannot be unemployed, regardless of the article under which he was fired.
Other options
Sometimes it happens that an employer does not want to spoil an employee’s work record with a note about drunkenness.
- He doesn’t want to spoil the employee’s career, because dismissal under an article of lament always leaves an imprint on a person’s professional face.
- Human kindness. An employer may take pity on a careless employee if he asks not to make a note in the work book.
In any case, dismissal occurs by agreement. If the employer does not want to dismiss the employee under the article, he can do this as follows:
- on the employee’s own initiative;
- by agreement of the parties
If there is an agreement between the parties, then the employee writes a letter of resignation of his own free will.
Everything happens by mutual agreement of the parties, only a few mandatory rules are observed:
- an order is issued to dismiss the employee. The document specifies the reason for dismissal and the date of termination of the employment contract;
- an entry is made in the employee’s work book indicating the order number;
- there is a payment of funds to the employee - last month’s salary, vacation pay, bonuses, and so on;
- a work book is issued;
- in order not to pay contributions, it is necessary to notify the funds about the termination of the employment contract
Important
The employer has the right not to dismiss the employee immediately, but to assign him work for a period of 2 weeks from the date of submission of the resignation letter. This is done so that the company’s management has time to find a replacement for the old employee. In this case, you need to make a note in the application: “I don’t mind working for 2 weeks.”
Don't forget to give the employee a bypass sheet. The employee is obliged to hand over everything that you gave him for work: phone, laptop, etc. If he does not hand over everything that was given to him, he will be obliged to pay compensation.
When writing a report about an employee being intoxicated, it is preferable to involve as witnesses persons who have never had direct contact with the offender, that is, who are not his colleagues, subordinates or managers. An act documenting the state of intoxication can be drawn up by the employee’s boss and the head of the enterprise, as well as the person who is responsible for allowing employees to begin work duties.
A day after the manager documents the fact of intoxication, the offending employee must provide a document that would clarify the essence of the current situation on his part. This must be done by a date set by the employer. The date is fixed in a special order of the head. The employee must be introduced to this document so that he understands how much time he is given before drawing up the act.
Important
Upon dismissal under clause “b”, clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employer must differentiate for himself the severity of the disciplinary offense.
The most severe disciplinary measure, that is, dismissal, can only be applied to that employee who, through his actions, significantly interfered with the work process and was unable to cope with his responsibilities. This may be expressed in the fact that the employee provoked a threat to himself and his colleagues. If the employer has definitely decided to say goodbye to the employee, he must draw up a memo.
Along with the memo and order, the employer must provide the following documents:
- an act stating that the employee appeared at the workplace in a state of alcoholic/drug/toxic intoxication;
- a document indicating that the employee has undergone a medical examination (if any).
This is also important to know:
Articles of dismissal from work under the Labor Code of the Russian Federation - 77, 79, 80, 178 article of the Labor Code
It is worth remembering that intoxication can be different: alcoholic, narcotic, toxic. Therefore, if an employee comes to work with symptoms of any type of intoxication, the procedure for punishing the offense does not change.
Signs of toxic and narcotic intoxication:
- change in pupil size;
- incoherent speech;
- unsteady gait;
- causeless change of mood;
- cough and dizziness
With this type of intoxication, there is no smell of alcohol, which can mislead others, so you should pay attention to other symptoms.
Termination of an employment contract with the consent of both parties
Procedure:
- Either the employer or the employee sends a notice stating the termination and also stating all the terms and conditions.
- The person to whom the notice was sent gives his written response. Next, the date and time of the agreement are discussed.
- Both parties draw up a severance agreement.
The agreement is especially relevant in a situation where a pregnant woman comes to work while intoxicated. The law prohibits employers from terminating the contract in this case, so an agreement between the two parties is the best way to say goodbye to an unwanted employee.
The director proposes to formalize an agreement with subsequent payment of compensation. In this case, the likelihood that the woman will agree to your terms is much greater.
Is it possible to challenge dismissal and return to work?
An employee dismissed under this article has the right to appeal to the labor inspectorate or court if he does not agree with the fact of dismissal.
When filing a claim, an employee may indicate the following requirements:
- returning to work because the charge was unlawful;
- payment of wages for the period during which the employee did not receive money in connection with the dismissal process;
- compensation for moral and emotional harm
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In court, the employee must present evidence that the dismissal was illegal. Such evidence may include video camera recordings, telephone calls, and witness statements, from which it will become clear that the employee was not intoxicated.
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In the absence of a medical examination, it will be easier for the employee to prove his case, but all facts provided by both parties are taken into account.
Is it possible to do without a medical examination?
In order to correctly identify an offense, the employer must, during an internal investigation, obtain confirmation of the state of intoxication through a medical examination or other evidence.
According to the adopted legislation, it is impossible to force a worker to undergo testing. When receiving a refusal from an employee, this fact must be documented. The drawn up act will be needed in the future to prove the employee’s guilt in court.
The employer's actions are legal only in the situation if he reasonably states that the employee is intoxicated.
If the requirements of the law are met during an internal investigation, then based on its results the worker will be punished accordingly. In the event of further proceedings, the court will not be able to convict the employer of illegality of actions and cancel the order to terminate the employment relationship.
What to do if an employee is drunk
The news that an employee is intoxicated at the enterprise usually comes to the director during working hours. Immediately upon receiving this news, it is better to ask the person who brought it to you to write a memorandum.
Case investigation procedure:
- Record the violation and supplement it with evidence (video recordings, witness statements, explanatory notes).
- Suspend a drunk employee from work activities, Art. 76 Labor Code of the Russian Federation.
- Creation of a commission to investigate the situation. This includes sending for a medical examination, requiring an explanatory note from the employee, and drawing up penalties.
- If an employee does not present an explanatory note within 2 working days, then the manager can automatically decide on the punishment, Art. 192 Labor Code of the Russian Federation
- Drawing up an order of dismissal for alcohol intoxication, issuing a work book and other documents, and settling payments with the employee.
This procedure only works if the person being dismissed agrees with the claims made against him.
To terminate an employment contract, two conditions are sufficient:
- a drunk employee appeared at the workplace or on the employer’s premises;
- the fact of intoxication was recorded during the working day
Removal of an employee from service
Based on Part 1 of Art. 76 of the Labor Code of the Russian Federation, an employee must be suspended from work if he is drunk. The period of suspension is until the circumstances serving as the basis for this are eliminated, that is, until sobering up.
To remove you, you need to draw up an appropriate order, which looks like this:
LLC "Iris"
Order to remove Ivanov I.I. from work No. 1P
21.06.20ХХ
Moscow
In connection with the appearance of employee I. I. Ivanov in a state of alcoholic intoxication on June 21, 20XX,
I order:
- Suspend I.I. Ivanov from work from 9:00 a.m. to 5:30 p.m. on June 21, 20XX.
- Wages will not be accrued for the duration of Ivanov I.I.’s removal from work.
Reasons: memo from sales manager P.P. Petrov dated June 21, 20XX
Memo from sales manager Sidorov S.S. dated June 21, 20XX
Medical examination report dated June 21, 20XX No. 12A
Director Kraev G. G. /Kraev/
The following have been familiarized with the order:
Sales Manager Sidorova S. S. /Sidorov/
sales manager Petrov P. P. /Petrov/
seller Ivanov I. I. /Ivanov/
If the violator of discipline does not want to get acquainted with the order, then it is necessary to draw up a report about this, which will be signed by at least 3 witnesses to the refusal.
IMPORTANT! Even if the employee has not been suspended from work, you can still fire him. However, a drunk employee can cause harm to himself, others, and property.
How to force an employee to undergo a medical examination
By law, the employer does not have the right to force an employee to undergo a medical examination, but he can influence him with the help of the police and ambulance.
If an employee begins to behave inappropriately, the director has the right to call the police. Then law enforcement officials can legally send him for a medical examination.
If a drunk employee complains about his health, the organization can call an ambulance. In this case, the doctor on duty draws up an examination.
This is also important to know:
Can a pregnant employee be fired during a probationary period?
If an employee is drunk, but completely non-aggressive and feels well, if this is the first time an employee has been noticed drunk in the workplace, then the employer may limit himself to a verbal warning.
Remember that the medical examination procedure is paid. All expenses are paid by the employer himself.
How to prove the fact of intoxication
If an employee is found drinking alcohol, this fact must be certified by an act. An official of the enterprise, colleagues, and immediate superior are involved in drawing up this document. After drawing up the act, the report is sent to the manager for further decisions.
Signs of intoxication may include the smell of alcohol from the employee, incoherent speech, gait disturbance, agitation, etc. If signs of intoxication are detected, the employer may invite the employee to undergo a medical examination or examination by a full-time medical employee. Refusal to conduct such a check is not a violation of the law, but will be considered as one of the evidence of the employee’s guilty actions.
Read on the topic: Announcing a reprimand for improper performance of official duties by an employee
What to do to avoid being fired for drunkenness
How to avoid being fired for drunkenness? There are some circumstances in which an employee’s inadequate condition is not his fault:
- when taking certain medications that contain alcohol;
- during production, when an employee inhaled toxic fumes
Moreover, the following categories of citizens will avoid dismissal under the article of alcohol intoxication:
- Women in position (Article 261 of the Labor Code of the Russian Federation). In this case, you can only suspend the employee for a day and leave her without pay for that day.
- Minors (Article 269 of the Labor Code of the Russian Federation). To dismiss such employees, the employer must obtain the consent of the labor inspectorate and the support of authorities for the protection of the rights of children under 18 years of age.
You shouldn't make a show out of your dismissal. It’s better to assemble an advisory committee, discuss all the evidence that would confirm the employee’s state of intoxication, and then make a decision on dismissal under the article for drunkenness.
Registration of dismissal according to the Labor Code of the Russian Federation
After all of the above procedures have been completed, the employee can be dismissed under clause. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation. For dismissal, an appropriate order must be issued. The basis for its publication is all the available evidence that has been collected.
The dismissed person must be familiarized with this order and signed within 3 days from the date of preparation. If he refuses to get acquainted with him, a report is drawn up (3 witnesses are required).
If there is a trade union in the organization, by virtue of Art. 373 of the Labor Code of the Russian Federation, it is necessary to take into account the opinion of this body before dismissal.
Disciplinary action cannot be applied after a month has passed from the moment the misconduct was discovered - it is important to remember this. In addition, on the basis under consideration, it is impossible to dismiss a pregnant woman (Part 1 of Article 261 of the Labor Code of the Russian Federation). The courts have such practice, and paragraph 25 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 No. 1 provides an explanation for this situation.
An alternative to dismissal for alcohol intoxication under Article 81 of the Labor Code of the Russian Federation may be inaction (failure to apply any sanctions against the employee), as well as the use of other types of disciplinary sanctions, such as a reprimand.
How can a fired person defend his rights?
The best way to prove that the employer is wrong is to undergo medical examination. examination. A negative conclusion is a guarantee that you will not be fired.
You can also contact the labor inspectorate and court. Evidence that mitigates the offense or completely diminishes it:
- medical prescription or indication from the attending physician;
- testimony of witnesses who can prove that the employee was sober (for example, he simply knocked over a container containing alcohol);
- if the problem with well-being is related to a health condition, a medical opinion from specialists is necessary;
- analysis of compiled documents and an attempt to find holes in them, for example, an unmotivated decision of the commission
Recently, the issue of drinking alcohol in the workplace has become very acute in our society. Activists have already proposed adding a medical examination to the list of mandatory procedures when checking an employee for the presence of alcohol in the blood, but by 2021 these initiatives have not yet been formalized as mandatory in the Labor Code of the Russian Federation.
An employee dismissed due to being drunk at work receives the following payments upon dismissal:
- wage;
- payments for those vacation days that he did not use (i.e. vacation pay)
Compensations and other payments, such as severance pay, are not provided to an employee upon dismissal for drunkenness at work.
An employer has the right to dismissal under an article for drunkenness, even if the fact of intoxication occurred only once, but such cases are extremely rare.
To know how to fire someone for drunkenness at work, it is important to correctly and accurately draw up all the documents, presenting the necessary evidence and confirmation of witnesses, because we cannot exclude a situation where an offended employee goes to court in order to have the opportunity to be reinstated in his position, avoiding an unpleasant record in work book.
