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Unfair Dismissal Decision Concerning “Requirements for Legal Application (Fewer Than Five Regular Employees)” (Unfair Dismissal 492)
- Date2026/05/29 04:08
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This case is an unfair dismissal decision that was procedurally dismissed on the issue of “requirements for legal application (fewer than five regular employees).”
[Case Information]
This case was concluded by procedural dismissal on the issue of “requirements for legal application (fewer than five regular employees).”
Decision Committee: Jeonbuk Regional Labor Relations Commission 2026Buhae52 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.03.19 · Case Result: Dismissed
Summary of Key Issue: As it was confirmed that the number of regular employees during the one-month period prior to the date on which the grounds for legal application arose (15 January 2026) was fewer than five, the workplace did not fall within the scope of business establishments to which the remedy procedures for unfair dismissal apply.
1. Legal Implications
Ⅰ. Case Overview
In this case, the employee filed an application with the Jeonbuk Regional Labor Relations Commission, alleging that he/she had been unfairly dismissed. The Labor Relations Commission, however, dismissed the application on the ground that the number of regular employees at the business establishment in question was fewer than five. Having reviewed the number of employees based on the one-month period prior to the date on which the grounds for legal application arose (15 January 2026), the Commission determined that the business did not fall within the scope of establishments subject to applications for remedy for unfair dismissal under the Labor Standards Act.
Ⅱ. Summary of the Issue
The issue in this case is whether the remedy procedure for unfair dismissal before the Labor Relations Commission is available in respect of a dismissal that occurred at a business establishment where the number of regular employees was fewer than five during the one-month period prior to the date on which the grounds for legal application arose.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case found that, when the total number of employees engaged during the one-month period prior to the date on which the grounds for legal application arose at the relevant business or workplace is divided by the number of operating days during the same period, the number of regular employees was fewer than five. It further relied on the following points: under Article 11 of the Labor Standards Act and Article 7-2 of its Enforcement Decree, the provisions on dismissal and the remedy system for unfair dismissal apply only to businesses or workplaces with at least five regular employees; and a business is exceptionally deemed to be subject to the Act only where the days on which the number of regular employees is five or more account for at least one half of the entire calculation period.
The panel therefore held that, even before examining whether the dismissal in this case constituted an unfair dismissal, the business establishment did not, from the outset, fall within the scope of workplaces to which the remedy system for unfair dismissal under the Labor Standards Act applies. On that basis, the application for remedy for unfair dismissal itself was dismissed.
Ⅳ. Practical Points (From the Employee’s Perspective)
When an employee is dismissed, it is easy to immediately think of “unfair dismissal,” but in practice one must first check whether the business has at least five regular employees. It should be kept in mind that the number of regular employees is not simply the headcount at a single point in time; rather, it is determined comprehensively by taking the average obtained by dividing the total number of employees engaged during the one-month period prior to the date on which the grounds for legal application arose by the number of operating days, and by considering the proportion of days during that period on which the number of employees was five or more versus fewer than five.
In addition, even if the business has fewer than five regular employees and an application for remedy for unfair dismissal before the Labor Relations Commission is not available, other provisions of the Labor Standards Act—such as those on unpaid wages, minimum wage, and weekly holiday allowance—may still apply. Employees should therefore consult with experts, such as Labor Law Firm Law&, to review in a multifaceted way the possible means of protecting their rights.
Ⅴ. Practical Points (From the Employer/Company Perspective)
From the employer’s perspective, it is important not to misunderstand that dismissal is entirely at the employer’s discretion simply because the number of regular employees is fewer than five. Even if the provisions of the Labor Standards Act restricting dismissal and the remedy procedure for unfair dismissal before the Labor Relations Commission do not directly apply to businesses with fewer than five regular employees, other legal principles—such as those governing employment contracts under the Civil Act, the principle of good faith, and the prohibition of discrimination—may still be at issue.
Furthermore, when calculating the number of regular employees, fixed-term and part-time employees, as well as daily workers, are also included, and the applicability of the law may vary depending on the proportion of days within the calculation period on which the number of employees is five or more versus fewer than five. Employers should therefore systematically manage hiring and separation records and working arrangements. For businesses where the headcount frequently fluctuates around the threshold of five employees, it is advisable, in order to prevent unfair dismissal disputes, to establish internal personnel and dismissal procedures equivalent to those of businesses with at least five employees.
This decision illustrates how important it is, when preparing an application for remedy for unfair dismissal, to first accurately examine the legal precondition of “whether there are at least five regular employees,” before considering the legitimacy of the grounds for dismissal. Both employees and employers should carefully check this point before proceeding to the Labor Relations Commission.
2. Matters Decided
A. Case Overview and Procedural History
As it was confirmed that the number of regular employees during the one-month period prior to the date on which the grounds for legal application arose (15 January 2026) was fewer than five, the workplace did not fall within the scope of business establishments to which the remedy procedures for unfair dismissal apply. Accordingly, there was no need to further examine the remaining issues, which presupposed that the number of regular employees was at least five.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
As it was confirmed that the number of regular employees during the one-month period prior to the date on which the grounds for legal application arose (15 January 2026) was fewer than five, the workplace did not fall within the scope of business establishments to which the remedy procedures for unfair dismissal apply. Accordingly, there was no need to further examine the remaining issues, which presupposed that the number of regular employees was at least five. /
[More Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision Concerning ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Date of Decision: – Case Number: First-Instance Decision Upheld
- “Unfair Dismissal/Personnel Measure Decision Concerning ‘Justifiability of Transfer (Addressing Imbalance in Workforce)’”
[Tags]
Unfair dismissal, requirements for legal application (fewer than five regular employees), others, Labor Law Firm Law&, large labor law firm, Samseong-dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is part of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal/Personnel Measure Decision Concerning ‘Justifiability of Transfer (Addressing Imbalance in Workforce)’,” in a new window.
※ The list of decisions related to requirements for legal application (fewer than five regular employees) can be viewed together in the “List of Decisions Related to Requirements for Legal Application (Fewer Than Five Regular Employees).”
※ Korean version of this case: Korean article
[Case Information]
This case was concluded by procedural dismissal on the issue of “requirements for legal application (fewer than five regular employees).”
Decision Committee: Jeonbuk Regional Labor Relations Commission 2026Buhae52 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.03.19 · Case Result: Dismissed
Summary of Key Issue: As it was confirmed that the number of regular employees during the one-month period prior to the date on which the grounds for legal application arose (15 January 2026) was fewer than five, the workplace did not fall within the scope of business establishments to which the remedy procedures for unfair dismissal apply.
1. Legal Implications
Ⅰ. Case Overview
In this case, the employee filed an application with the Jeonbuk Regional Labor Relations Commission, alleging that he/she had been unfairly dismissed. The Labor Relations Commission, however, dismissed the application on the ground that the number of regular employees at the business establishment in question was fewer than five. Having reviewed the number of employees based on the one-month period prior to the date on which the grounds for legal application arose (15 January 2026), the Commission determined that the business did not fall within the scope of establishments subject to applications for remedy for unfair dismissal under the Labor Standards Act.
Ⅱ. Summary of the Issue
The issue in this case is whether the remedy procedure for unfair dismissal before the Labor Relations Commission is available in respect of a dismissal that occurred at a business establishment where the number of regular employees was fewer than five during the one-month period prior to the date on which the grounds for legal application arose.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case found that, when the total number of employees engaged during the one-month period prior to the date on which the grounds for legal application arose at the relevant business or workplace is divided by the number of operating days during the same period, the number of regular employees was fewer than five. It further relied on the following points: under Article 11 of the Labor Standards Act and Article 7-2 of its Enforcement Decree, the provisions on dismissal and the remedy system for unfair dismissal apply only to businesses or workplaces with at least five regular employees; and a business is exceptionally deemed to be subject to the Act only where the days on which the number of regular employees is five or more account for at least one half of the entire calculation period.
The panel therefore held that, even before examining whether the dismissal in this case constituted an unfair dismissal, the business establishment did not, from the outset, fall within the scope of workplaces to which the remedy system for unfair dismissal under the Labor Standards Act applies. On that basis, the application for remedy for unfair dismissal itself was dismissed.
Ⅳ. Practical Points (From the Employee’s Perspective)
When an employee is dismissed, it is easy to immediately think of “unfair dismissal,” but in practice one must first check whether the business has at least five regular employees. It should be kept in mind that the number of regular employees is not simply the headcount at a single point in time; rather, it is determined comprehensively by taking the average obtained by dividing the total number of employees engaged during the one-month period prior to the date on which the grounds for legal application arose by the number of operating days, and by considering the proportion of days during that period on which the number of employees was five or more versus fewer than five.
In addition, even if the business has fewer than five regular employees and an application for remedy for unfair dismissal before the Labor Relations Commission is not available, other provisions of the Labor Standards Act—such as those on unpaid wages, minimum wage, and weekly holiday allowance—may still apply. Employees should therefore consult with experts, such as Labor Law Firm Law&, to review in a multifaceted way the possible means of protecting their rights.
Ⅴ. Practical Points (From the Employer/Company Perspective)
From the employer’s perspective, it is important not to misunderstand that dismissal is entirely at the employer’s discretion simply because the number of regular employees is fewer than five. Even if the provisions of the Labor Standards Act restricting dismissal and the remedy procedure for unfair dismissal before the Labor Relations Commission do not directly apply to businesses with fewer than five regular employees, other legal principles—such as those governing employment contracts under the Civil Act, the principle of good faith, and the prohibition of discrimination—may still be at issue.
Furthermore, when calculating the number of regular employees, fixed-term and part-time employees, as well as daily workers, are also included, and the applicability of the law may vary depending on the proportion of days within the calculation period on which the number of employees is five or more versus fewer than five. Employers should therefore systematically manage hiring and separation records and working arrangements. For businesses where the headcount frequently fluctuates around the threshold of five employees, it is advisable, in order to prevent unfair dismissal disputes, to establish internal personnel and dismissal procedures equivalent to those of businesses with at least five employees.
This decision illustrates how important it is, when preparing an application for remedy for unfair dismissal, to first accurately examine the legal precondition of “whether there are at least five regular employees,” before considering the legitimacy of the grounds for dismissal. Both employees and employers should carefully check this point before proceeding to the Labor Relations Commission.
2. Matters Decided
A. Case Overview and Procedural History
As it was confirmed that the number of regular employees during the one-month period prior to the date on which the grounds for legal application arose (15 January 2026) was fewer than five, the workplace did not fall within the scope of business establishments to which the remedy procedures for unfair dismissal apply. Accordingly, there was no need to further examine the remaining issues, which presupposed that the number of regular employees was at least five.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
As it was confirmed that the number of regular employees during the one-month period prior to the date on which the grounds for legal application arose (15 January 2026) was fewer than five, the workplace did not fall within the scope of business establishments to which the remedy procedures for unfair dismissal apply. Accordingly, there was no need to further examine the remaining issues, which presupposed that the number of regular employees was at least five. /
[More Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision Concerning ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Date of Decision: – Case Number: First-Instance Decision Upheld
- “Unfair Dismissal/Personnel Measure Decision Concerning ‘Justifiability of Transfer (Addressing Imbalance in Workforce)’”
[Tags]
Unfair dismissal, requirements for legal application (fewer than five regular employees), others, Labor Law Firm Law&, large labor law firm, Samseong-dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is part of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal/Personnel Measure Decision Concerning ‘Justifiability of Transfer (Addressing Imbalance in Workforce)’,” in a new window.
※ The list of decisions related to requirements for legal application (fewer than five regular employees) can be viewed together in the “List of Decisions Related to Requirements for Legal Application (Fewer Than Five Regular Employees).”
※ Korean version of this case: Korean article
