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Case on Unfair Dismissal Relating to “Scope of Legal Application (Fewer Than Five Regular Employees)” (Unfair Dismissal 611)
- Date2026/08/10 04:05
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[Case Information]
This case is a decision that was concluded by procedural dismissal on the issue of “scope of legal application (fewer than five regular employees).”
Decision Committee: Gyeongbuk Regional Labor Relations Commission 2026Buhae539 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026-07-14 · Case result: Dismissed
Key issue summary: There was insufficient basis to find that the employer had used five or more regular employees during the one month prior to the date on which the cause arose, and no other evidence to recognize this. Accordingly, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act.
1. Legal Implications
Ⅰ. Case Overview
In this case, the employee claimed unfair dismissal and filed an application for remedy with the Labor Relations Commission. The preliminary issue, however, was whether the employer’s workplace employed at least five regular employees. The Gyeongbuk Regional Labor Relations Commission examined whether Article 28 of the Labor Standards Act applied, focusing on the number of regular employees used by the employer during the one month prior to the date on which the cause arose. As a result, the key question became whether the employer’s business was subject to the unfair dismissal remedy system under the Labor Standards Act.
Ⅱ. Summary of Issues
The issue in this case is whether, “based on the number of employees used by the employer during the one month prior to the date on which the cause arose, this workplace constitutes a ‘workplace with at least five regular employees’ to which Articles 11 and 28 of the Labor Standards Act apply.” In other words, before determining whether the dismissal alleged by the employee was unfair, the preliminary question was whether the legal requirements (remedial interest) for filing an application for remedy for unfair dismissal with the Labor Relations Commission were satisfied in the first place.
Ⅲ. Gist of the Labor Relations Commission’s Decision
The decision panel in this case relied on the following: there was a lack of objective materials and evidence to find that the employer had used five or more regular employees during the one month prior to the date on which the cause arose; even if the method of calculating the number of regular employees prescribed in the Labor Standards Act and its Enforcement Decree (dividing the total number of man-days during the relevant one-month period by the number of operating days to obtain an average, and reviewing the headcount on each day) was applied, it was difficult to recognize the workplace as one with five or more employees; and based solely on the materials submitted by the employee, it was difficult to regard the workplace as having at least five regular employees even when including daily workers and part-time workers. On this basis, the Commission found that it was difficult to regard this workplace as a “workplace with at least five regular employees” to which Article 28 of the Labor Standards Act applies, and dismissed the application for remedy without further examining the remaining issues, such as whether the dismissal was unfair, which presupposed that there were at least five regular employees.
Ⅳ. Practical Points (From the Employee’s Perspective)
For an employee to allege unfair dismissal and file an application for remedy with the Labor Relations Commission, it is first necessary to carefully confirm whether the company is a workplace that employs at least five regular employees. In particular, in family-run companies, small businesses, and small-scale shops, it is important to secure as many materials as possible that can prove the number of regular employees using the “total man-days for one month ÷ number of operating days” method, such as employment contracts, payroll records, records of enrollment in the four major social insurances, and actual daily headcount data. If the requirement regarding the number of regular employees cannot be proven, the application may be dismissed in the Labor Relations Commission proceedings for lack of remedial interest, no matter how unfair the dismissal may be.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, whether the number of regular employees is at least five is the criterion that determines the applicability of various provisions of the Labor Standards Act, including restrictions on dismissal, the unfair dismissal remedy procedure, and annual paid leave. It is therefore important to manage personnel, payroll, and attendance data clearly on a daily basis. In particular, where multiple branches or stores are operated, or where regular employees, part-time workers, and daily workers are used together, it is helpful for dispute prevention to obtain advice from experts such as Labor Law Firm Law& on the scope within which multiple locations can be viewed as a single workplace and on how many employees are “regularly” employed, and to organize the structure accordingly. Furthermore, even if the workplace has fewer than five regular employees, when carrying out dismissals or redundancies, employers should maintain at least minimal procedural fairness and keep written records to reduce unnecessary misunderstandings in any future disputes.
2. Matters Decided
A. Case Overview and Procedural History
There was insufficient basis to find that the employer had used five or more regular employees during the one month prior to the date on which the cause arose, and no other evidence to recognize this. Accordingly, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act. Therefore, the Commission decided not to further examine the remaining issues, which presupposed that there were at least five regular employees.
3. Gist of the Decision
A. Gist of the Labor Relations Commission’s Decision
There was insufficient basis to find that the employer had used five or more regular employees during the one month prior to the date on which the cause arose, and no other evidence to recognize this. Accordingly, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act. Therefore, the Commission decided not to further examine the remaining issues, which presupposed that there were at least five regular employees. /
[See More Related Decisions]
- “Case on Unfair Dismissal Relating to ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
- “Case on Unfair Dismissal Relating to ‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’”
- “Case on Unfair Dismissal Relating to ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Date of decision: – Case result: First-instance decision upheld
[Tags]
Unfair dismissal, scope of 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, “Case on Unfair Dismissal/Transfer Relating to ‘Business Necessity (Transfer of Chief Purchasing Officer)’,” in a new window.
※ A list of decisions relating to the scope of legal application (fewer than five regular employees) can be found in the “List of Decisions Relating to Scope of Legal Application (Fewer Than Five Regular Employees)” page.
※ Korean version of this case: Korean article
This case is a decision that was concluded by procedural dismissal on the issue of “scope of legal application (fewer than five regular employees).”
Decision Committee: Gyeongbuk Regional Labor Relations Commission 2026Buhae539 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026-07-14 · Case result: Dismissed
Key issue summary: There was insufficient basis to find that the employer had used five or more regular employees during the one month prior to the date on which the cause arose, and no other evidence to recognize this. Accordingly, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act.
1. Legal Implications
Ⅰ. Case Overview
In this case, the employee claimed unfair dismissal and filed an application for remedy with the Labor Relations Commission. The preliminary issue, however, was whether the employer’s workplace employed at least five regular employees. The Gyeongbuk Regional Labor Relations Commission examined whether Article 28 of the Labor Standards Act applied, focusing on the number of regular employees used by the employer during the one month prior to the date on which the cause arose. As a result, the key question became whether the employer’s business was subject to the unfair dismissal remedy system under the Labor Standards Act.
Ⅱ. Summary of Issues
The issue in this case is whether, “based on the number of employees used by the employer during the one month prior to the date on which the cause arose, this workplace constitutes a ‘workplace with at least five regular employees’ to which Articles 11 and 28 of the Labor Standards Act apply.” In other words, before determining whether the dismissal alleged by the employee was unfair, the preliminary question was whether the legal requirements (remedial interest) for filing an application for remedy for unfair dismissal with the Labor Relations Commission were satisfied in the first place.
Ⅲ. Gist of the Labor Relations Commission’s Decision
The decision panel in this case relied on the following: there was a lack of objective materials and evidence to find that the employer had used five or more regular employees during the one month prior to the date on which the cause arose; even if the method of calculating the number of regular employees prescribed in the Labor Standards Act and its Enforcement Decree (dividing the total number of man-days during the relevant one-month period by the number of operating days to obtain an average, and reviewing the headcount on each day) was applied, it was difficult to recognize the workplace as one with five or more employees; and based solely on the materials submitted by the employee, it was difficult to regard the workplace as having at least five regular employees even when including daily workers and part-time workers. On this basis, the Commission found that it was difficult to regard this workplace as a “workplace with at least five regular employees” to which Article 28 of the Labor Standards Act applies, and dismissed the application for remedy without further examining the remaining issues, such as whether the dismissal was unfair, which presupposed that there were at least five regular employees.
Ⅳ. Practical Points (From the Employee’s Perspective)
For an employee to allege unfair dismissal and file an application for remedy with the Labor Relations Commission, it is first necessary to carefully confirm whether the company is a workplace that employs at least five regular employees. In particular, in family-run companies, small businesses, and small-scale shops, it is important to secure as many materials as possible that can prove the number of regular employees using the “total man-days for one month ÷ number of operating days” method, such as employment contracts, payroll records, records of enrollment in the four major social insurances, and actual daily headcount data. If the requirement regarding the number of regular employees cannot be proven, the application may be dismissed in the Labor Relations Commission proceedings for lack of remedial interest, no matter how unfair the dismissal may be.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, whether the number of regular employees is at least five is the criterion that determines the applicability of various provisions of the Labor Standards Act, including restrictions on dismissal, the unfair dismissal remedy procedure, and annual paid leave. It is therefore important to manage personnel, payroll, and attendance data clearly on a daily basis. In particular, where multiple branches or stores are operated, or where regular employees, part-time workers, and daily workers are used together, it is helpful for dispute prevention to obtain advice from experts such as Labor Law Firm Law& on the scope within which multiple locations can be viewed as a single workplace and on how many employees are “regularly” employed, and to organize the structure accordingly. Furthermore, even if the workplace has fewer than five regular employees, when carrying out dismissals or redundancies, employers should maintain at least minimal procedural fairness and keep written records to reduce unnecessary misunderstandings in any future disputes.
2. Matters Decided
A. Case Overview and Procedural History
There was insufficient basis to find that the employer had used five or more regular employees during the one month prior to the date on which the cause arose, and no other evidence to recognize this. Accordingly, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act. Therefore, the Commission decided not to further examine the remaining issues, which presupposed that there were at least five regular employees.
3. Gist of the Decision
A. Gist of the Labor Relations Commission’s Decision
There was insufficient basis to find that the employer had used five or more regular employees during the one month prior to the date on which the cause arose, and no other evidence to recognize this. Accordingly, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act. Therefore, the Commission decided not to further examine the remaining issues, which presupposed that there were at least five regular employees. /
[See More Related Decisions]
- “Case on Unfair Dismissal Relating to ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
- “Case on Unfair Dismissal Relating to ‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’”
- “Case on Unfair Dismissal Relating to ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Date of decision: – Case result: First-instance decision upheld
[Tags]
Unfair dismissal, scope of 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, “Case on Unfair Dismissal/Transfer Relating to ‘Business Necessity (Transfer of Chief Purchasing Officer)’,” in a new window.
※ A list of decisions relating to the scope of legal application (fewer than five regular employees) can be found in the “List of Decisions Relating to Scope of Legal Application (Fewer Than Five Regular Employees)” page.
※ Korean version of this case: Korean article
