Resignee’s right to service incentive leave

Dear PAO,

I’m working for an ESL school in Cebu City. I just tendered my resignation letter a couple of weeks ago. It’s effective three months subsequently after I handed my letter of resignation. I wanted to avail a week leave within my remaining months of tenure in this school but they disapproved my leave for the reason that I’m a “resignee”. My queries are the following:
1.    Do I have a right to avail a leave for this year, within my remaining months of tenure for I haven’t availed it yet?
2.    The company has been giving an anniversary incentive equivalent to a five-day work as a five-day with- or without-pay leave. Without pay if the employee incurred a certain number of absences the preceding year and with pay if the employee didn’t. Is the company violating the provisions in Article 95 of the Labor Code of the Philippines regarding the Service Incentive Leave with Pay? It seems like they are giving the five-day leave but separate from the pay that goes with it and just named it “yearly incentive.” Is it not the incentive which is deemed as one of the company policies as stated in Article 100 which further states that forfeiting it will be deemed a diminution contrary to law?
Mark

Dear Mark,

Your queries hinge on the provision of the Labor Code of the Philippines on Service Incentive Leave. As per Paragraph (a) of Article 95 of the said code, “[E]very employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave with pay.”
As defined in the Implementing Rules of Book 2 of the Labor Code, the term “at least one year” shall mean service within 12 months, whether continuous or broken reckoned from the date the employee started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year.
As explained by the Department of Labor and Employment (DOLE) in its Handbook on Worker’s Statutory Monetary Benefits 2009 Edition (page 28), service incentive leave for resigned employees is computed as follows:

“C. Usage/Conversion to Cash

The service incentive leave may be used for sick and vacation leave purposes. The unused service incentive leave is commutable to its money equivalent at the end of the year. In computing, the basis shall be the salary rate at the date of conversion.

The use and conversion of this benefit may be on a pro rata basis.

Illustration: An employee was hired on 1 January 2000 and resigned on 1 March 2001. Assuming that he/she has not used or commuted any of his/her accrued SIL, he/she is entitled to the conversion of his/her accrued SIL, upon his/her resignation, as follows:

“SIL earned as of 31 December 2000 5 days
Proportionate SIL for January and February 2001
(2/12) x 5 days = 0.833 day

Total accrued SIL as of 1 March 2001 5.833 days”

Based on the foregoing, assuming that you have worked for at least a year, you have earned at least five days service incentive leave, which you may use. In the event that you are not allowed by your employer to use them because your work demands it, you are entitled to its monetary value. Considering that you are now resigned, an additional service incentive leave should be added to the service incentive leave you have earned computed pro rata. If you are denied of the said benefit, you may file a complaint before the NLRC or the DOLE, if your claim does not exceed P5,000. –PERSIDA ACOSTA, Manila Times

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