Hotel employment: is this legal?

isthisok?

My sister got a job in a hotel in Ireland. She was told in the interview that she would get 39 hrs a week at €10 per hour. They also mentioned she might once in a while have to do an overnight stay. She got her contract which says the same. Then she got her time and noted she was in for an overnight once a week. This entails sleeping in the hotel from 11.30pm-6.30am. She is under NO circumstances allowed to leave the premises and along with the one nightporter is to be the responsible staff member in the event of a fire.

She received her first paycheque and noted she hadn't been paid for the overnight. She went to her manager and asked her about it and was told no she would never be paid. She replied "Well it must be voluntary then, in which case I'll opt out". But the manager said no it wasn't an option and she should speak to the director/owner.

She went to speak to him and the director said that in fact the €10 an hour amounted to €390 per week and covered the 46 hours (39 + 7). My sis responded that no that was below minimum wage as it calculated to €8.47 per hour. The director then replied that in fact he forgot to add in the daily food allowance of €4.60 per day which when taken over 5days of work and added to her salary resulted in €8.97 per hour.

She didn't pursue it any further, but a few days later was pulled aside by her manager to ask her how all was going. She said that she was very unhappy because she felt she'd been decieved by how often the overnight would be, and about her wage given that her contract STATES that she will be paid €10 per hour and not €8.97 per hour. And in no place does it state that the overnight is unpaid. Thus, she finds the company in breach of contract.

Her manager told her that she understood and were she required to do the same she too would be unhappy. She stated however that she knows the hotel has run this system for years and so must be within the law and if she is unhappy she may leave!

The thing we are all finding so shocking about this is her Co-workers. Some of them have been doing this for 11 and 13 years, they have small children and have had at times to do two nights per week. One asked not to have to do it anymore and was reduced to parttime hours and still given one overnight a week. Two members of staff are parttime and are sometimes required to do two unpaid overnights, essentially halving their salaries!!!??

I have looked at this from every angle, and I spoke to NERA. They said if she has to remain at her employer's behest then she must be paid. Similarly, aside from the withholding of payment for time spent at the employer's disposal, all international forced labour legislation says that the work must be involuntary, which it is as she was somewhat tricked into believing it was paid and only once in a while, and there must be a presence of threat - in this case loss of her job, which she can't afford.

Another hotelier told me that the director is an advisor to the hotel federation on salary manipulation and is always brought in to sort hotels in financial difficulty. This makes one believe he must be working within the limits of the law, and the fact that he has been doing it since the celtic tiger years and no one caught onto it(????) But at the same time I can't get my head around how it COULD be legal, especially for the parttime workers.

Is there anyone out there who can help to clarify the legality of this conundrum please?

Mrs OBumble

MOD NOTE: we cannot give legal advice here. If you want to "clarify the legality", you need to speak to a lawyer. But we can discuss the general issue, and I'm leaving the thread open with the clear understanding that we are discussing, not advising.


Are her co-workers actually unhappy about this? Their family status is actually irrelevant, and should not be taken into account - and if they've been doing it for years, then they clearly knew the deal when they decided to have the kids. Even if it's legally marginal, you may find that they don't actually want your sister to rock the boat, so to speak.

blindsider

Your sister should be paid as per her contract. End of. No ifs or buts. If the food allowance is not in the contract then I fail to see how it applies.

The 'over-night' sounds like 'on-call' to me - there should be an allowance for this, but I'd guess it's not mandatory.


http://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/hours_of_work/rest_periods_and_breaks.html

Rest periods
The definition of a rest period is any time that is not working time. The rest periods set out in the Act are as follows:

(a) You are entitled to 11 consecutive hours rest in any period of 24 hours. In addition you should get 24 consecutive hours rest in any period of 7 days and this should normally follow on from one of the 11-hour rest periods already mentioned

If your sister is 'required' to stay in the hotel, and to be available in an emergency, then I don't see that as 'rest'. Her time is not her own - e.g. she is not free to leave the hotel.


However, even if some of the practices in the hotel are not perfect, your sister will need to make some decisions:

a) Leave
b) Accept the status quo
c) Stay - but fight it - it's a long and difficult road - esp. in a seasonal business like a hotel. Going to NERA officially etc might work - but it WILL be difficult.

Without researching further, (and therefore not 100% guaranteed) your sister can't be fired to taking action - even if she's new in the job - she could potentially sue for Unfair Dismissal)

[If I'm motivated enough tomorrow, I may confirm this last assertion re UD]

Personally - I wouldn't recommend C - esp. if your sister needs the job and the experience - I'd be demanding the €10 p.h though!

monkeysnapper

I work in retail and have loads of people coming to work in our company from the hotel trade . It really sucks . I don't know how they get loyal workers when they treat them like this .

I had a friend who used to have one day off a week on a Monday and that was the day they had there management meetings , all 3 hours of it unpaid .

Personally I'd start looking for a new job and get the hell out of there .

blindsider

UPDATE:

If your sister is 'on probation' she has little choice.

UD Act does not apply:

http://www.citizensinformation.ie/en/employment/unemployment_and_redundancy/dismissal/unfair_dismissal.html

(j) an employee who is on probation or undergoing training at the beginning of employment, provided that the duration of probation or training is one year or less.

Stovepipe

why not take it to a contract lawyer or a union rep, if she has one?

No Pants

blindsider wrote: »

UPDATE:

If your sister is 'on probation' she has little choice.

UD Act does not apply:

http://www.citizensinformation.ie/en/employment/unemployment_and_redundancy/dismissal/unfair_dismissal.html

(j) an employee who is on probation or undergoing training at the beginning of employment, provided that the duration of probation or training is one year or less.

So is she then able to sit tight for six months to a year and then look to NERA for resolution? If she does that, would she be entitled to backpay or does the clock on that only start when the claim is brought?

blindsider

Dunno TBH - that's far too legalistic for a mere HR prole like me.

sligoface

Hotels get away with stuff like this all the time.

The one I worked in was cute with contracts too, I was on 9.67/hr. A few years later, when the minimum wage was dropped to 7.65/hr, my hours were cut to almost none while new employees were hired and given 40-50 hrs at minimum wage. I complained to HR as I had been there three years. Then I started getting disciplinary warnings... When the minimum wage was put back up to 8.65, the new workers, who were foreign, were not even aware. After I told them, they asked and were told they would get the new rate but that the meal deduction in their contract which was never applied before would now be applied effective immediately, leaving them at basically 7.65 again. Even more outrageous, were in the wedding and events dept and our meals were just the extra beef or salmon meals made for the wedding in case of extra guests. By the time we got it it had been sitting for ages (after serving and clearing the whole room of all four courses and tea/coffee), was dry and cold with no sauce or gravy. And it had been paid for by the wedding party who booked the hotel!

Irish hotels are some of the most abusive workplaces. I'm on the dole and desperate for work, but that is one industry I would never go back to. It won't get better, I'd refuse the overnights and let them fire me.

newbie2

blindsider wrote: »

Your sister should be paid as per her contract. End of. No ifs or buts. If the food allowance is not in the contract then I fail to see how it applies.

The 'over-night' sounds like 'on-call' to me - there should be an allowance for this, but I'd guess it's not mandatory.


http://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/hours_of_work/rest_periods_and_breaks.html

Rest periods
The definition of a rest period is any time that is not working time. The rest periods set out in the Act are as follows:

(a) You are entitled to 11 consecutive hours rest in any period of 24 hours. In addition you should get 24 consecutive hours rest in any period of 7 days and this should normally follow on from one of the 11-hour rest periods already mentioned

If your sister is 'required' to stay in the hotel, and to be available in an emergency, then I don't see that as 'rest'. Her time is not her own - e.g. she is not free to leave the hotel.

Tourism is one of the sectors exempt from that particular section of the OWTA:
http://www.irishstatutebook.ie/1998/en/si/0021.html

b) the nature of which is such that employees are directly involved in
ensuring the continuity of production or the provision of services, as the case
may be,



and, in particular, any of the following activites...

...(x)
tourism.

No Pants

newbie2 wrote: »

Tourism is one of the sectors exempt from that particular section of the OWTA

I wonder how much lobbying took place to get that list put together. Some of those sectors have an element of danger involved.

newbie2

No Pants wrote: »

I wonder how much lobbying took place to get that list put together. Some of those sectors have an element of danger involved.

The entire list is effectively every industry in ireland.
Employers can feck off if they think they have it bad in employment law

wmpdd3

I can't understand how NERA can stand for that.

I know of retail places where 6 years worth of 'breaks' records were audited.

If the employees were found to have not gotten their breaks, it would have amounted to an under payment of 90c per day. The audit was proven futile, but this was recent, why can NERA not investigate this hotel? I'd be raising questions at a political level.

Your sister's situation is farcical.

OP what is your sister's job description?

If she is a fire warden, has she received training on how to evacuate a hotel within the required time? How to deal with the fire brigade? How to move immobile guests?

What's the back up plan is one of the employees left in the hotel is taken ill?