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‘Scope of Legal Application (Fewer Than Five Regular Employees)’ Unfair Dismissal Decision (Unfair Dismissal 618)
- Date2026/08/12 04:13
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This case is a decision that was dismissed on procedural grounds at the stage of examining the issue of “scope of legal application (fewer than five regular employees).”
[Case Information]
This case is a precedent in which the application for relief was dismissed on procedural grounds at the stage of examining the issue of “scope of legal application (fewer than five regular employees).”
Decision Committee: Seoul Regional Labor Relations Commission, Case No. 2026부해1561 ○ ○ ○ Application for Relief from Unfair Dismissal
Decision date: 2026-07-09 · Case result: Dismissal (각하)
Summary of key issues: (i) According to the employment insurance acquisition records for regular employees at the workplace, the number of employees per day was only 2–3, and there were no employment insurance reports for daily workers; (ii) the employee did not make any particular assertion against the employer’s claim that the number of regular employees at the workplace was fewer than five, and there were no other circumstances indicating that the workplace could be regarded as one employing five or more employees on a continuous basis. Taken together, the number of regular employees at the workplace was determined to be fewer than five. /
1. Legal Implications
Ⅰ. Case Overview
In this unfair dismissal case, the employee filed an application for relief with the Labor Relations Commission, claiming that the employer’s dismissal was unfair. However, the case was dismissed because the key issue was whether the workplace employed fewer than five regular employees. The Seoul Regional Labor Relations Commission first examined, based on employment insurance data and the parties’ statements, whether the workplace fell within the scope of application of the Labor Standards Act and the unfair dismissal relief system.
Ⅱ. Summary of Issues
The issue in this case was whether, where an application for relief from unfair dismissal is filed in relation to a workplace that appears to employ fewer than five regular employees, that workplace qualifies as a “workplace employing at least five employees on a continuous basis,” which is a requirement for the application of the unfair dismissal relief system under the Labor Standards Act.
Ⅲ. Summary of the Labor Relations Commission’s Decision
The panel in this case found that, according to the employment insurance acquisition records for regular employees at the workplace, the number of employees per day was only 2–3, that there were no employment insurance reports for daily workers, and that the employee did not raise any particular objection or submit additional materials against the employer’s claim that the number of regular employees was fewer than five. In light of these circumstances, the panel determined that the number of regular employees at the workplace was fewer than five.
The dismissal in this case was deemed to have occurred at a workplace that does not fall under a “business or workplace employing at least five employees on a continuous basis” as stipulated in Article 11 of the Labor Standards Act. Accordingly, the legal requirement for the application of the unfair dismissal relief system, which is a prerequisite for the application for relief, was considered not to have been met.
The Labor Relations Commission proceeded on the premise of the Supreme Court’s position that, in principle, the Labor Standards Act and the unfair dismissal relief system apply only to workplaces employing at least five employees on a continuous basis, and that the number of regular employees must be determined comprehensively by considering not only the number of employees working on a particular day, but also the total number of employees used over a certain period, whether daily workers are included, and whether, in a continuous and stable sense, the average number of employees is at least five.
Nevertheless, in this case, the Commission concluded that it was difficult to regard the workplace as one employing at least five employees even in a continuous and stable sense, given that the employment insurance data showed only 2–3 regular employees, there was no objective evidence to support the use of daily workers, and there were no circumstances such as other workplaces requiring aggregation or integration, or large-scale seasonal employment.
Ultimately, the Labor Relations Commission held that the workplace did not fall within the scope of workplaces to which the unfair dismissal relief system under the Labor Standards Act applies. Therefore, before examining the legitimacy of the dismissal on the merits, it found that the requirement concerning the “scope of legal application” was not satisfied and dismissed the application for relief.
Ⅳ. Practical Points (From the Employee’s Perspective)
When an employee prepares to file an application for relief from unfair dismissal with the Labor Relations Commission, it is necessary first to verify, with concrete evidence, whether the workplace employs at least five employees on a continuous basis. Unless the employee independently secures, organizes, and submits materials supporting the number of regular employees—such as employment insurance enrollment records, payroll ledgers, attendance records, and the status of daily workers—there is a high risk that the case will be dismissed solely on the basis of the employer’s assertion that the workplace employs “fewer than five” employees.
In addition, even if similar businesses are operated at the same location under multiple names, or corporations and sole proprietorships are formally separated, if in reality the workforce, facilities, and accounting are substantially integrated under a single management entity, there is room to regard them as a single workplace. In such cases, it may be possible to argue that the number of regular employees, when aggregated, is at least five. Accordingly, it is advisable to carefully organize the actual operational status on site and consult with experts such as Labor Law Firm Law&.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s perspective, since the scope of application of the Labor Standards Act and the applicability of the unfair dismissal relief system differ depending on whether the workplace employs at least five or fewer than five employees on a continuous basis, it is necessary to ensure that the number of regular employees is objectively evident through employment insurance reporting, execution of employment contracts, and management of attendance records. In particular, where daily workers or part-time workers are used repeatedly and continuously, employers should formulate their HR and labor management strategies in consideration of the fact that these workers may be included in the calculation of the number of regular employees.
Furthermore, where corporations and workplaces are separated only in form while the workforce, facilities, and accounting are actually commingled, the Labor Relations Commission or the courts may regard them as a single workplace and aggregate the number of regular employees. Therefore, when designing the business structure or reviewing personnel measures related to collective redundancies or unfair dismissals, employers should, together with experts such as Labor Law Firm Law&, check in advance the calculation of the number of regular employees and the scope of legal application.
2. Matters Decided
A. Case Overview and Procedural History
(i) According to the employment insurance acquisition records for regular employees at the workplace, the number of employees per day was only 2–3, and there were no employment insurance reports for daily workers; (ii) the employee did not make any particular assertion against the employer’s claim that the number of regular employees at the workplace was fewer than five, and there were no other circumstances indicating that the workplace could be regarded as one employing five or more employees on a continuous and stable basis. Taken together, the number of regular employees at the workplace was determined to be fewer than five.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Decision
(i) According to the employment insurance acquisition records for regular employees at the workplace, the number of employees per day was only 2–3, and there were no employment insurance reports for daily workers; (ii) the employee did not make any particular assertion against the employer’s claim that the number of regular employees at the workplace was fewer than five, and there were no other circumstances indicating that the workplace could be regarded as one employing five or more employees on a continuous and stable basis. Taken together, the number of regular employees at the workplace was determined to be fewer than five. /
[See More Related Decisions]
- “Unfair Dismissal Decision Related to ‘Expression of Intention to Resign (Resignation Remark Made by Telephone Call)’”
- “Unfair Dismissal Decision Related to ‘Dismissal (Non-Appearance at Hearing)’” – Decision date: – Case result: Dismissal (각하)
- “Unfair Dismissal Decision Related to ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
[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 one of the “Unfair Dismissal Decision” series by Labor Law Firm Law&.
※ The previous article, “Unfair Dismissal Decision Related to ‘Disciplinary Measure Level (Repeated Misconduct)’,” can be viewed in a new window.
※ The list of decisions related to “scope of legal application (fewer than five regular employees)” can be viewed together in the “List of Decisions Related to Scope of Legal Application (Fewer Than Five Regular Employees).”
※ Korean version of this case: Korean article
[Case Information]
This case is a precedent in which the application for relief was dismissed on procedural grounds at the stage of examining the issue of “scope of legal application (fewer than five regular employees).”
Decision Committee: Seoul Regional Labor Relations Commission, Case No. 2026부해1561 ○ ○ ○ Application for Relief from Unfair Dismissal
Decision date: 2026-07-09 · Case result: Dismissal (각하)
Summary of key issues: (i) According to the employment insurance acquisition records for regular employees at the workplace, the number of employees per day was only 2–3, and there were no employment insurance reports for daily workers; (ii) the employee did not make any particular assertion against the employer’s claim that the number of regular employees at the workplace was fewer than five, and there were no other circumstances indicating that the workplace could be regarded as one employing five or more employees on a continuous basis. Taken together, the number of regular employees at the workplace was determined to be fewer than five. /
1. Legal Implications
Ⅰ. Case Overview
In this unfair dismissal case, the employee filed an application for relief with the Labor Relations Commission, claiming that the employer’s dismissal was unfair. However, the case was dismissed because the key issue was whether the workplace employed fewer than five regular employees. The Seoul Regional Labor Relations Commission first examined, based on employment insurance data and the parties’ statements, whether the workplace fell within the scope of application of the Labor Standards Act and the unfair dismissal relief system.
Ⅱ. Summary of Issues
The issue in this case was whether, where an application for relief from unfair dismissal is filed in relation to a workplace that appears to employ fewer than five regular employees, that workplace qualifies as a “workplace employing at least five employees on a continuous basis,” which is a requirement for the application of the unfair dismissal relief system under the Labor Standards Act.
Ⅲ. Summary of the Labor Relations Commission’s Decision
The panel in this case found that, according to the employment insurance acquisition records for regular employees at the workplace, the number of employees per day was only 2–3, that there were no employment insurance reports for daily workers, and that the employee did not raise any particular objection or submit additional materials against the employer’s claim that the number of regular employees was fewer than five. In light of these circumstances, the panel determined that the number of regular employees at the workplace was fewer than five.
The dismissal in this case was deemed to have occurred at a workplace that does not fall under a “business or workplace employing at least five employees on a continuous basis” as stipulated in Article 11 of the Labor Standards Act. Accordingly, the legal requirement for the application of the unfair dismissal relief system, which is a prerequisite for the application for relief, was considered not to have been met.
The Labor Relations Commission proceeded on the premise of the Supreme Court’s position that, in principle, the Labor Standards Act and the unfair dismissal relief system apply only to workplaces employing at least five employees on a continuous basis, and that the number of regular employees must be determined comprehensively by considering not only the number of employees working on a particular day, but also the total number of employees used over a certain period, whether daily workers are included, and whether, in a continuous and stable sense, the average number of employees is at least five.
Nevertheless, in this case, the Commission concluded that it was difficult to regard the workplace as one employing at least five employees even in a continuous and stable sense, given that the employment insurance data showed only 2–3 regular employees, there was no objective evidence to support the use of daily workers, and there were no circumstances such as other workplaces requiring aggregation or integration, or large-scale seasonal employment.
Ultimately, the Labor Relations Commission held that the workplace did not fall within the scope of workplaces to which the unfair dismissal relief system under the Labor Standards Act applies. Therefore, before examining the legitimacy of the dismissal on the merits, it found that the requirement concerning the “scope of legal application” was not satisfied and dismissed the application for relief.
Ⅳ. Practical Points (From the Employee’s Perspective)
When an employee prepares to file an application for relief from unfair dismissal with the Labor Relations Commission, it is necessary first to verify, with concrete evidence, whether the workplace employs at least five employees on a continuous basis. Unless the employee independently secures, organizes, and submits materials supporting the number of regular employees—such as employment insurance enrollment records, payroll ledgers, attendance records, and the status of daily workers—there is a high risk that the case will be dismissed solely on the basis of the employer’s assertion that the workplace employs “fewer than five” employees.
In addition, even if similar businesses are operated at the same location under multiple names, or corporations and sole proprietorships are formally separated, if in reality the workforce, facilities, and accounting are substantially integrated under a single management entity, there is room to regard them as a single workplace. In such cases, it may be possible to argue that the number of regular employees, when aggregated, is at least five. Accordingly, it is advisable to carefully organize the actual operational status on site and consult with experts such as Labor Law Firm Law&.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s perspective, since the scope of application of the Labor Standards Act and the applicability of the unfair dismissal relief system differ depending on whether the workplace employs at least five or fewer than five employees on a continuous basis, it is necessary to ensure that the number of regular employees is objectively evident through employment insurance reporting, execution of employment contracts, and management of attendance records. In particular, where daily workers or part-time workers are used repeatedly and continuously, employers should formulate their HR and labor management strategies in consideration of the fact that these workers may be included in the calculation of the number of regular employees.
Furthermore, where corporations and workplaces are separated only in form while the workforce, facilities, and accounting are actually commingled, the Labor Relations Commission or the courts may regard them as a single workplace and aggregate the number of regular employees. Therefore, when designing the business structure or reviewing personnel measures related to collective redundancies or unfair dismissals, employers should, together with experts such as Labor Law Firm Law&, check in advance the calculation of the number of regular employees and the scope of legal application.
2. Matters Decided
A. Case Overview and Procedural History
(i) According to the employment insurance acquisition records for regular employees at the workplace, the number of employees per day was only 2–3, and there were no employment insurance reports for daily workers; (ii) the employee did not make any particular assertion against the employer’s claim that the number of regular employees at the workplace was fewer than five, and there were no other circumstances indicating that the workplace could be regarded as one employing five or more employees on a continuous and stable basis. Taken together, the number of regular employees at the workplace was determined to be fewer than five.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Decision
(i) According to the employment insurance acquisition records for regular employees at the workplace, the number of employees per day was only 2–3, and there were no employment insurance reports for daily workers; (ii) the employee did not make any particular assertion against the employer’s claim that the number of regular employees at the workplace was fewer than five, and there were no other circumstances indicating that the workplace could be regarded as one employing five or more employees on a continuous and stable basis. Taken together, the number of regular employees at the workplace was determined to be fewer than five. /
[See More Related Decisions]
- “Unfair Dismissal Decision Related to ‘Expression of Intention to Resign (Resignation Remark Made by Telephone Call)’”
- “Unfair Dismissal Decision Related to ‘Dismissal (Non-Appearance at Hearing)’” – Decision date: – Case result: Dismissal (각하)
- “Unfair Dismissal Decision Related to ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
[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 one of the “Unfair Dismissal Decision” series by Labor Law Firm Law&.
※ The previous article, “Unfair Dismissal Decision Related to ‘Disciplinary Measure Level (Repeated Misconduct)’,” can be viewed in a new window.
※ The list of decisions related to “scope of legal application (fewer than five regular employees)” can be viewed together in the “List of Decisions Related to Scope of Legal Application (Fewer Than Five Regular Employees).”
※ Korean version of this case: Korean article
