Corporate trends / Performance record
Unfair Dismissal Decision Concerning “Calculation of the Number of Regular Employees (Construction Company with Fewer than Five Employees)” (Unfair Dismissal 577)
- Date2026/07/27 04:10
- Read 13
This case is an unfair dismissal decision that was procedurally dismissed on the issue of “calculation of the number of regular employees (construction company with fewer than five employees).”
Decision Committee: Gyeonggi Regional Labor Relations Commission 2026Buhae1115 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026-05-22 · Case outcome: Dismissed
Summary of key issue: The employee argued, based on progress payment invoices the employer sent to the prime contractor, that the company’s number of regular employees was five or more. However, according to the company’s payroll records for November 2025 and the list of persons insured under employment insurance, the number of employees was fewer than five.
1. Legal Implications
Ⅰ. Case Overview
In this case, an employee claiming unfair dismissal filed an application for remedy with the Gyeonggi Regional Labor Relations Commission, but the application was dismissed on the ground that the number of regular employees at the employer’s workplace was fewer than five. The employee argued, relying on progress payment invoices submitted to the prime contractor, that the actual number of regular employees was five or more, and further contended that personnel of other corporations related to the employer and of partner companies should also be included in the headcount.
Ⅱ. Summary of Issues
The issue in this case is whether, in order to obtain a remedy for unfair dismissal at a small construction-site-centered business, it is possible to recognize five or more regular employees by including the personnel listed on the prime contractor’s progress payment invoices and the personnel of partner companies and overseas corporations.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case took into account that, according to the company’s payroll and the list of persons who acquired insured status under employment insurance, only two persons—the employee and Ji ○‑seok—were confirmed as employees; that even if the personnel employed by the U.S. corporation established by the employer were included, the total would still be only three; and that among the persons whom the employee argued should be included in the number of regular employees, there were workers belonging to partner companies and presidents of manpower supply companies, who are difficult to regard as employees of “the relevant business or workplace” under the Labor Standards Act. Further, it considered that the number of personnel stated on the progress payment invoices of the company supervising the construction or of the prime contractor cannot be directly regarded as the number of regular employees at the employer’s workplace. On this basis, it held that the workplace in question is a business with fewer than five regular employees and therefore does not fall within the scope of application of the unfair dismissal remedy system under the Labor Standards Act, and dismissed the application for remedy.
Ⅳ. Practical Points (From the Employee’s Perspective)
For an employee to obtain a remedy for unfair dismissal, it is necessary not only to prove the unfairness of the dismissal itself, but also to prove that the business to which the employee belongs is a workplace with five or more regular employees under the Labor Standards Act. It is not sufficient that the employee’s name simply appears on the prime contractor’s progress payment invoices or on-site personnel lists. The employee must prepare materials that clearly distinguish, based on payroll records and the four major social insurance enrollment details, whether the personnel in question are in fact employees employed by the employer, and not personnel belonging to partner or subcontracting companies.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s standpoint, payroll records, the status of persons insured under employment insurance, and the contractual structure (relationships among prime contractor, subcontractors, and partner companies) related to the calculation of the number of regular employees must be clearly managed so that, in the event of an unfair dismissal dispute, the employer can objectively substantiate the size of the workplace and the scope of applicable law. In industries where changes in personnel are frequent, such as construction, service contracts, or workforce reductions, it is particularly important to document and distinguish between partner company personnel and directly employed personnel, and to refine the wording and supporting documents so that the personnel numbers stated in progress payment invoices or proposals are not confused with the actual employment relationships.
As this decision illustrates, both employees and employers should bear in mind that, even before filing an application for remedy for unfair dismissal, it is very important to accurately understand the legal principles regarding the number of regular employees and the scope of the employer, and to systematically organize evidentiary materials to the level required by the Labor Relations Commission.
2. Matters Decided
a. Case Overview and Procedural History
The employee argued, based on progress payment invoices the employer sent to the prime contractor, that the company’s number of regular employees was five or more. However, according to the company’s payroll for November 2025 and the list of persons who acquired insured status under employment insurance, only the employee and Ji ○‑seok were confirmed as employees, and even if Han ○‑gyeong, who was employed by the U.S. corporation established by the employer, were included, the total would be three. Director Lee ○‑jin and Jeong ○‑jin were confirmed to be the representative and an employee of TC○○ Engineering Co., Ltd. Among the persons whom the employee argued should be included in the company’s number of regular employees, there were persons employed by partner companies and presidents of manpower supply companies. The company supervising the construction is a partner company that employs its own workers, and …
3. Summary of the Decision
a. Summary of the Labor Relations Commission’s Reasoning
The employee argued, based on progress payment invoices the employer sent to the prime contractor, that the company’s number of regular employees was five or more. However, according to the company’s payroll for November 2025 and the list of persons who acquired insured status under employment insurance, only the employee and Ji ○‑seok were confirmed as employees, and even if Han ○‑gyeong, who was employed by the U.S. corporation established by the employer, were included, the total would be three. Director Lee ○‑jin and Jeong ○‑jin were confirmed to be the representative and an employee of TC○○ Engineering Co., Ltd. Among the persons whom the employee argued should be included in the company’s number of regular employees, there were persons employed by partner companies and presidents of manpower supply companies. The company supervising the construction is a partner company that employs its own workers, and … /
[Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Expression of Intention to Resign (Resignation Remark Made by Telephone)’”
- “Unfair Dismissal Decision Concerning ‘Dismissal of Application (Non‑appearance at Hearing)’” – Date of decision: – Case outcome: Dismissed
- “Unfair Dismissal Decision Concerning ‘Non‑formation of Hiring Commitment (Absence of Offer Letter)’” – Date of decision: – Case outcome: Initial decision upheld
[Tags]
Unfair dismissal, Calculation of the number of regular employees (construction company with fewer than five 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 one of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal Decision Concerning ‘Non‑existence of Expectation of Renewal (Expiration of Employment Contract Period)’,” in a new window.
※ The list of decisions related to calculation of the number of regular employees (construction company with fewer than five employees) can be viewed together on the “List of Decisions Related to Calculation of the Number of Regular Employees (Construction Company with Fewer than Five Employees).”
※ Korean version of this case: Korean article
Decision Committee: Gyeonggi Regional Labor Relations Commission 2026Buhae1115 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026-05-22 · Case outcome: Dismissed
Summary of key issue: The employee argued, based on progress payment invoices the employer sent to the prime contractor, that the company’s number of regular employees was five or more. However, according to the company’s payroll records for November 2025 and the list of persons insured under employment insurance, the number of employees was fewer than five.
1. Legal Implications
Ⅰ. Case Overview
In this case, an employee claiming unfair dismissal filed an application for remedy with the Gyeonggi Regional Labor Relations Commission, but the application was dismissed on the ground that the number of regular employees at the employer’s workplace was fewer than five. The employee argued, relying on progress payment invoices submitted to the prime contractor, that the actual number of regular employees was five or more, and further contended that personnel of other corporations related to the employer and of partner companies should also be included in the headcount.
Ⅱ. Summary of Issues
The issue in this case is whether, in order to obtain a remedy for unfair dismissal at a small construction-site-centered business, it is possible to recognize five or more regular employees by including the personnel listed on the prime contractor’s progress payment invoices and the personnel of partner companies and overseas corporations.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case took into account that, according to the company’s payroll and the list of persons who acquired insured status under employment insurance, only two persons—the employee and Ji ○‑seok—were confirmed as employees; that even if the personnel employed by the U.S. corporation established by the employer were included, the total would still be only three; and that among the persons whom the employee argued should be included in the number of regular employees, there were workers belonging to partner companies and presidents of manpower supply companies, who are difficult to regard as employees of “the relevant business or workplace” under the Labor Standards Act. Further, it considered that the number of personnel stated on the progress payment invoices of the company supervising the construction or of the prime contractor cannot be directly regarded as the number of regular employees at the employer’s workplace. On this basis, it held that the workplace in question is a business with fewer than five regular employees and therefore does not fall within the scope of application of the unfair dismissal remedy system under the Labor Standards Act, and dismissed the application for remedy.
Ⅳ. Practical Points (From the Employee’s Perspective)
For an employee to obtain a remedy for unfair dismissal, it is necessary not only to prove the unfairness of the dismissal itself, but also to prove that the business to which the employee belongs is a workplace with five or more regular employees under the Labor Standards Act. It is not sufficient that the employee’s name simply appears on the prime contractor’s progress payment invoices or on-site personnel lists. The employee must prepare materials that clearly distinguish, based on payroll records and the four major social insurance enrollment details, whether the personnel in question are in fact employees employed by the employer, and not personnel belonging to partner or subcontracting companies.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s standpoint, payroll records, the status of persons insured under employment insurance, and the contractual structure (relationships among prime contractor, subcontractors, and partner companies) related to the calculation of the number of regular employees must be clearly managed so that, in the event of an unfair dismissal dispute, the employer can objectively substantiate the size of the workplace and the scope of applicable law. In industries where changes in personnel are frequent, such as construction, service contracts, or workforce reductions, it is particularly important to document and distinguish between partner company personnel and directly employed personnel, and to refine the wording and supporting documents so that the personnel numbers stated in progress payment invoices or proposals are not confused with the actual employment relationships.
As this decision illustrates, both employees and employers should bear in mind that, even before filing an application for remedy for unfair dismissal, it is very important to accurately understand the legal principles regarding the number of regular employees and the scope of the employer, and to systematically organize evidentiary materials to the level required by the Labor Relations Commission.
2. Matters Decided
a. Case Overview and Procedural History
The employee argued, based on progress payment invoices the employer sent to the prime contractor, that the company’s number of regular employees was five or more. However, according to the company’s payroll for November 2025 and the list of persons who acquired insured status under employment insurance, only the employee and Ji ○‑seok were confirmed as employees, and even if Han ○‑gyeong, who was employed by the U.S. corporation established by the employer, were included, the total would be three. Director Lee ○‑jin and Jeong ○‑jin were confirmed to be the representative and an employee of TC○○ Engineering Co., Ltd. Among the persons whom the employee argued should be included in the company’s number of regular employees, there were persons employed by partner companies and presidents of manpower supply companies. The company supervising the construction is a partner company that employs its own workers, and …
3. Summary of the Decision
a. Summary of the Labor Relations Commission’s Reasoning
The employee argued, based on progress payment invoices the employer sent to the prime contractor, that the company’s number of regular employees was five or more. However, according to the company’s payroll for November 2025 and the list of persons who acquired insured status under employment insurance, only the employee and Ji ○‑seok were confirmed as employees, and even if Han ○‑gyeong, who was employed by the U.S. corporation established by the employer, were included, the total would be three. Director Lee ○‑jin and Jeong ○‑jin were confirmed to be the representative and an employee of TC○○ Engineering Co., Ltd. Among the persons whom the employee argued should be included in the company’s number of regular employees, there were persons employed by partner companies and presidents of manpower supply companies. The company supervising the construction is a partner company that employs its own workers, and … /
[Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Expression of Intention to Resign (Resignation Remark Made by Telephone)’”
- “Unfair Dismissal Decision Concerning ‘Dismissal of Application (Non‑appearance at Hearing)’” – Date of decision: – Case outcome: Dismissed
- “Unfair Dismissal Decision Concerning ‘Non‑formation of Hiring Commitment (Absence of Offer Letter)’” – Date of decision: – Case outcome: Initial decision upheld
[Tags]
Unfair dismissal, Calculation of the number of regular employees (construction company with fewer than five 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 one of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal Decision Concerning ‘Non‑existence of Expectation of Renewal (Expiration of Employment Contract Period)’,” in a new window.
※ The list of decisions related to calculation of the number of regular employees (construction company with fewer than five employees) can be viewed together on the “List of Decisions Related to Calculation of the Number of Regular Employees (Construction Company with Fewer than Five Employees).”
※ Korean version of this case: Korean article
