Dear Atty. Kathy,
There is a newly-resigned employee from our company who is complaining that we did not pay him his service incentive leave. However, he already used up his five days of vacation leave credits and five days sick leave credits. The employee is saying that the SIL benefit is different and it is required under the Labor Code. Is the employee correct?
Andrea
*****
Dear Andrea,
Article 95 of the Labor Code provides:
- Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.
- This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than 10 employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the viability or financial condition of such establishment. xxx (Emphasis supplied.)
Based on your narration, the resigned employee is already entitled to five vacation leave credits and five sick leave credits, which he has already used up. Such vacation and sick leave benefit of the company meets the minimum requirements of the law on SIL, hence, the provision of the Labor Code on SIL no longer applies to the resigned employee.
Atty. Kathy Larios