An unfair dismissal relief application case was conducted in relation to the “number of regular employees (fewer than 5),” in which the employer prevailed. I would like to share this decision and its legal implications with you.

In this post, we will focus on the Labor Relations Commission procedures, the scope of application of the Labor Standards Act, and the key evidence-gathering points that Labor Law Firm Law& pays particular attention to in practice. We will also briefly touch on the “5-employee threshold” issue, which arises in the same way in the context of collective redundancies.

1. Legal Implications

The issue in this case was whether “the number of regular employees at the workplace in question satisfies the requirement of at least 5 employees as stipulated in Articles 11 and 28 of the Labor Standards Act, thereby making the case subject to an unfair dismissal relief application before the Labor Relations Commission.”

The decision panel found that, according to the employer’s submissions—namely, the calculation table for the number of regular employees, employment contracts, and pay slips—the number of regular employees during the calculation period was fewer than 5, and the number of days on which the workforce fell below 5 accounted for at least one-half of the relevant period. It also noted that the actual working days and employee status of the individuals included in the employee’s own calculation table for the number of regular employees could not be verified, and that the employee had not submitted specific and objective evidence to support his or her assertions.

The employee argued, in substance, that additional individuals should have been included in the calculation of the number of regular employees, that the employer’s materials did not accurately reflect the actual working conditions, and that, if all such individuals were included, the workplace should be regarded as having 5 or more employees. However, despite these assertions,

the decision held that the dismissal in this case did not satisfy the prerequisite of being a “workplace with at least 5 regular employees” under Article 28 of the Labor Standards Act, which is required for filing an unfair dismissal relief application. Accordingly, the case did not fall within the jurisdiction of the Labor Relations Commission and was therefore found to be inadmissible.

As this case illustrates, whether the workplace regularly employs at least 5 employees under Article 11 of the Labor Standards Act is a preliminary requirement for an unfair dismissal relief application. Therefore, where there is any potential for dispute—whether in relation to collective redundancies or ordinary dismissals—employers must accurately calculate and manage the number of regular employees in advance in accordance with the statutory criteria. The number of regular employees is not a simple headcount; it is determined by comprehensively considering multiple factors such as the calculation period, the proportion of days on which the number of employees falls below 5, and whether subcontracted or dispatched workers are included. Employers should systematically retain employment contracts, pay slips, and attendance records, while employees should secure sufficient objective evidence to support their own claims. It is important to bear in mind that a case may be dismissed at the stage of determining the “jurisdiction and scope of application of the Labor Relations Commission” even before the substantive merits of the unfair dismissal claim are examined.

2. Decision

In light of (i) the fact that, based on the calculation table for the number of regular employees, employment contracts, and pay slips submitted by the employer, the number of regular employees at the workplace in question during the relevant calculation period was fewer than 5, and the number of days on which the workforce fell below 5 accounted for at least one-half of that period, and (ii) the fact that the working days and employee status of the individuals included in the employee’s calculation table for the number of regular employees could not be verified, and the employee failed to submit specific and objective evidence to support his or her assertions, the workplace in this case does not fall within the scope of application of an unfair dismissal relief application under Article 28 of the Labor Standards Act and therefore does not fall within the adjudicatory jurisdiction of the Labor Relations Commission.

3. Summary of Decision

In light of (i) the fact that, based on the calculation table for the number of regular employees, employment contracts, and pay slips submitted by the employer, the number of regular employees at the workplace in question during the relevant calculation period was fewer than 5, and the number of days on which the workforce fell below 5 accounted for at least one-half of that period, and (ii) the fact that the working days and employee status of the individuals included in the employee’s calculation table for the number of regular employees could not be verified, and the employee failed to submit specific and objective evidence to support his or her assertions, the workplace in this case does not fall within the scope of application of an unfair dismissal relief application under Article 28 of the Labor Standards Act and therefore does not fall within the adjudicatory jurisdiction of the Labor Relations Commission. /