Dear Atty. Vlad,

I used to work with a software development company.  I stayed there for five years.  However, during that period, I always reported for work and never used any of my leaves.

Last week I resigned.  When I was asking for my service incentive leave pay, I was only given the equivalent of three years because according to my employer, prescription has already set in.

 Is my employer correct?  Please help me.

John Rey

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Dear John Rey,

From what you told me, it appears that you have not used any of your leaves nor have you been paid your Service Incentive Leave Pay for five years.  As such, you are claiming compensation for the equivalent amount of two more years or 10 days worth of service incentive leave pay.

In the case of Lourdes C. Rodriguez vs Park N Ride Inc. Nicest (Phils.) Inc.,/Grand Leisure Corp./Sps. Vicente & Estelita B. Javier, 20 March 2017, G.R. No. 222980, the Supreme Court citing the case of Auto Bus Transport System Inc. vs Bautista (497 Phil. 863, 2005), explained:

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

It is essential at this point, however, to recognize that the service incentive leave is a curious animal in relation to other benefits granted by the law to every employee. In the case of service incentive leave, the employee may choose to either use his leave credits or commute it to its monetary equivalent if not exhausted at the end of the year. Furthermore, if the employee entitled to service incentive leave does not use or commute the same, he is entitled upon his resignation or separation from work to the commutation of his accrued service incentive leave. As enunciated by the Court in Fernandez v NLRC: