An employee at work drunk: proving in court

uvolnenie

However, in practice, it is not entirely clear how the employer must prove the fact of the employee's condition , if he refuses to undergo a medical examination.

The Court of Cassation answered this question. Under the circumstances of the case, a person released for paragraph 7 par. 1 item 40 of the Labor Code, appealed to the court with a claim for renewal at work, the collection of average earnings during forced absenteeism and compensation for non-pecuniary damage.

According to the applicant, he was fired due to the biased attitude of one of the company's executives. The plaintiff objected to the fact that he was at work in a drunken state, indicating that due to poor health (high pressure) he took corvalol, hawthorn, pustrynik, while not addressing to the doctor (he has no medical confirmation of such condition).

The respondent, in turn, reported that the drunken condition of the worker was documented by an act of the commission, which referred to signs of alcohol intoxication - a characteristic smell, shuffle and threats. According to the results of the act the employee was dismissed from work, but the plaintiff refused to undergo a medical examination. Despite this refusal, the management dismissed the employee for paragraph 7 par. 1 item 40 of the Labor Code.

During the trial, testimony was also received from individuals who confirmed the applicant's presence in a drunken state. On the basis of evidence obtained - the defendant's act and witness statements - the courts of the first and appellate courts refused to satisfy the claim. The plaintiff then filed a cassation appeal, referring to the absence of a medical report for dismissal.

The CC of the Supreme court, maintaining the decision of the courts, noted that the absence of a medical opinion does not indicate that the fact was not properly recorded. Alcoholic, narcotic or toxic intoxication of an employee is not necessarily to be confirmed by a medical report - other circumstances, which the court can give an assessment (the ruling dated January 23, 2018 in the case No. 640/17224/15-ts) may come from evidence.

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