Dear Atty. Vlad,

I am a messengerial employee a manufacturing company in Valenzuela City. I was employed there for five years. During my entire stay, I did not use any of my leaves nor was I paid any unused leaves. About a month ago, I resigned from my work. When I went to my manager to ask 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? I hope you can help me.

Rico

***

Dear Rico,

Your manager is wrong.

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. 222980 (citing the case of Auto Bus Transport System Inc. vs Bautista; 497 Phil. 863, 2005), the Court pointed:

However, Auto Bus Transport System Inc. vs 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 stating that prescription has already set in. The three-year prescriptive period only commences to run from the time of demand. Since you made the demand just about a month after 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 five years or 25 days of Service Incentive Leave Pay.

I hope that I was able to guide you based on what you shared with me.

Atty. Vlad del Rosario