I worked for a small shoe distributor for almost eight months. I already tendered my resignation last month as I am preparing to work abroad. I followed up my last salary and remaining benefits and was told to come back by the end of this month. I was also told that I will not receive a 13th month pay. But I am entitled to a 13th month pay under our law, am I not? Please enlighten.
You are correct in saying that the benefit of a 13th month pay is mandated under our laws. This is in view of the passage of Presidential Decree (P.D.) No. 851. Although this decree is quite old as it was passed on December 16, 1975, the said law is still in effect and has been modified to address present times.
To qualify for the availment of the 13th month pay benefit, the employee concerned must hold the position of a rank-and-file, regardless of the amount of basic salary that he or she receives in a month and regardless of his or her designation or employment status, provided that he or she has worked for at least one month during a calendar year (Revised Guidelines on the Implementation of the 13th Month Pay Law).
But it is important to note that there are employers who are still not covered by P.D. No. 851, to wit: (a) The Government and any of its political subdivisions, including government-owned and controlled corporations, except those corporations operating essentially as private subsidiaries of the Government; (b) Employers already paying their employees a 13th month pay or more in a calendar year or its equivalent at the time of this issuance; (c) Employers of household helpers and persons in the personal service of another in relation to such workers; and (d) Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall grant the required 13th month pay to such workers (Id.).
In the situation you have presented, you may seek for the payment of your 13th month benefit if you are holding the position of a rank-and-file employee. Although you have already resigned from your employment, you will still be entitled to receive such monetary benefit, but only in proportion to the length of time you worked during this year, computed from the time you began working this calendar year up to the time of the effectivity of your resignation; provided that your employer is not among the above-listed employers who are exempt under the law to grant a 13th month benefit.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com