Taking Counsel: A quicker way to debt enforcement

  • 2010-01-20
  • By Tina Luse [Kronbergs & Cukste]

Article 101, section 4 of the Latvian Employment law provides that an employer is entitled to terminate the employment relationships unilaterally with an employee who has attended work under the influence of alcohol, narcotic or toxic substances. Under such circumstances, an employer is entitled to terminate the employment relationship after serving a respective written termination notification to the employee.

The law provides that such termination right of the employer may be utilized  within one month after the above breach of the law has been established. However, the employer is obligated to request an explanation from the employee in writing.
A certain degree of difficulty is to be faced by the employer if the employee does not admit his intoxication. The employee may, for example, advance the argument that its condition is related to taking medication prescribed by a doctor.
Employment law is silent on what actions may, and have to be, undertaken by the employer when it has suspicions that an employee is under the effect of alcohol or narcotic or toxic substances during the working time. The Supreme Court Senate has opined that the employer is allowed to use any of the instruments available under the Civil Procedure Law available to it to establish  the fact.

The most appropriate evidentiary instruments to prove intoxication would likely be taking statements from witnesses and requiring the employee to undergo a medical examination. Whenever the employer has suspicion about an employee being under the influence of alcohol or other similar substances during work time, the Latvian approach to appropriate measures to be taken is as follows: 

1) Draw up a written statement of the employer’s authorized personnel describing the indications of intoxication of the employee of the named prohibited substances. It is advisable to have the statement signed by at least two witnesses;

2) Request explanations in writing from the employee about the situation and reasons for such condition. An employee’s refusal to give explanations must  be documented again,  either in the same statement describing the indications of the employee being intoxicated mentioned above, or in a separate statement which again must be signed by at least two witnesses;

3) If the employee does not admit that his/her condition is caused by utilization of the above mentioned “prohibited” substances, the employer may request the employee to undergo a medical examination as contemplated under Article 82 of the Employment Law. A competent medical specialist may be requested to attend the workplace to conduct the respective examination. The law provides that such expertise is to be performed at the employer’s expense.

4) If the employee refuses to take the medical test, that fact has to be documented again and the respective statement of his/her refusal must to be signed by at least two witnesses.

Equipped with the documents set out above, an employer must decide whether the employment relationship is to be terminated, or whether  a disciplinary penalty in the form of a reprimand is to be applied. However, it should be noted that if the employer wishes to terminate the employment agreement due to the above conduct of the employee, he can be dismissed only if, after undergoing the medical expertise, the employee is found to be intoxicated/drunk. A mere statement of presence at some portion of “prohibited” substances in his system is insufficient grounds for termination, unless otherwise specifically provided for in the employment contract.

It is common practice in certain industries, such as the transportation industry, for which it is extremely important to prevent employees from being intoxicated during their working time, to include in the employment contract the undertaking of the employee to undergo testing forthwith at the  employer’s request. 

Tina Luse is a lawyer at the firm of Kronbergs & Cukste, a founding member of Baltic Legal Solutions, offer pan Baltic legal services on a one-stop-shop basis. Other Baltic Legal Solutions members are Jurevicius, Bartkus & Partners of Lithuania, and Glikman & Partnerid of Estonia.