Dear Atty. Peachy,
Donna, the nanny of my 7-year-old son has been with us since my son was born. I have been relying on her help since then. She is the eldest of three children and has been supporting her family in Jolo from the salary that she is receiving from us. She has not gone home since she started working with us as she said she would rather use the money to help send her siblings to school. She does not take day offs as well as she does not want to spend. In return, we give her a salary four times the amount required by law. We also bring her with us wherever we go — to malls, restaurants, vacations (in and out of the country). We practically treated her as family.
Last month, I learned from our cook that Donna met someone online and she overheard them talking about getting married. I confronted Donna about this matter. Even though I want her to be with us at least until my son finishes grade school, I was not planning to stop her from leaving us and getting married. I just want to make sure that she knows what she is doing and ask her to give us sufficient time to look for her replacement before she leaves. She completely denied about having a boyfriend and planning to get married anytime soon. I was glad, but I still reminded her that she is free to pursue her dreams and we want her to be happy. However, I reiterated my request that she give us sufficient time to find a replacement.
To my dismay, however, she told me just a week ago that she will already be leaving by the end of the month as her boyfriend allegedly wants them to get married before his father, who is a seafarer, leaves the country next month. What upset me more was when she demanded payment of her service incentive leave, allegedly for all the years that she did not take a leave, and separation pay.
Is she entitled to service incentive leave even if she practically goes on vacation with us for no less than ten days a year? We do not really boss her around during vacations and treat her just like any other family member. Is she entitled to separation pay even if she is the one who resigns?
I understand what you may be feeling right now. Unfortunately, however, the law, particularly the Domestic Workers Act, specifically provides that a “kasambahay,” like Donna, who has rendered at least one (1) year of service shall be entitled to an annual service incentive leave of at least five days with pay.
Any unused portion of said annual leave shall not be cumulative or carried over to the succeeding years. Unused service incentive leaves are required to be converted to cash at the end of the year or upon the termination of employment. For the “vacations” to be considered as part of the five day service incentive leave of Donna, the nature of such “vacations” must have been made clear to her from the beginning.
As regards her claim for separation pay, please note that an employee who voluntarily resigns from employment is not entitled to separation pay, except when it is stipulated in her employment contract.
A lot of employers now are very generous with their household helpers and treat them as family. Before we go overboard with what we give them, however, let us make sure that we provide them first with the benefits required by law and make sure that there is a clear understanding between you and your household helpers as regards these benefits. The best way is to document these matters in an employment contract.
Atty. Peachy Selda-Gregorio
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