Dear Atty. Vlad,

I am an office staff in a manufacturing company in Valenzuela City. I was employed there for seven years. During my entire stay, I did not use any my leaves nor was I paid any unused leaves. Three weeks ago, I resigned from my work. When I was asking and demanding for my service incentive leave pay, I was only given the equivalent of three years because according to my manager, prescription has already set in. Is my manager correct? Please guide me.

Norton

Dear Norton,

Your manager is not correct.

In the case of Lourdes C. Rodriguez vs Park N Ride Inc. Nicest (Phils.) Inc.,/Grand Leisure Corp./Sps. Vicente and Estelita B. Javier, 20 March 2017, G.R. 222980 (citing the case of Auto Bus Transport System Inc. vs Bautista; 497 Phil. 863, 2005), the Court explained, viz:

However, Auto Bus Transport System Inc. v. Bautista clarified the correct reckoning of the prescriptive period for service incentive leave pay:

***

Applying Article 291 of the Labor Code in light of this peculiarity of the service incentive leave, we can conclude that the three-year prescriptive period commences, not at the end of the year when the employee becomes entitled to the commutation of his service incentive leave, but from the time when the employer refuses to pay its monetary equivalent after demand of commutation or upon termination of the employee's services, as the case may be.

The above construal of Art. 291, vis-a-vis the rules on service incentive leave, is in keeping with the rudimentary principle that in the implementation and interpretation of the provisions of the Labor Code and its implementing regulations, the workingman's welfare should be the primordial and paramount consideration. The policy is to extend the applicability of the decree to a greater number of employees who can avail of the benefits under the law, which is in consonance with the avowed policy of the State to give maximum aid and protection to labor. (Emphasis supplied).

From the above-cited Decision of the Court, your manager is wrong in asserting that prescription has already set in. The three year prescriptive period only sets in from the time of demand. Since you made the demand at the time of your resignation, your right to receive your service incentive leave was within the three-year prescriptive period. As such, you are entitled to Service Incentive Leave Pay equivalent to seven years or 35 days of Service Incentive Leave Pay.