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Unfair Dismissal Decision Concerning “Scope of Legal Application (Small Workplaces with Fewer Than Five Regular Employees)” (Unfair Dismissal 153)
- Date2026/01/27 04:14
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[Case Information]
This case is an unfair dismissal decision that was dismissed on procedural grounds at the stage of examining the issue of the “scope of legal application (small workplaces with fewer than five regular employees).”
Decision Committee: Jeonnam Regional Labor Relations Commission 2025Buhae9067 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2025.12.23 · Case result: Dismissed
Summary of key issue: As the number of regular employees employed at this workplace during the one‑month period prior to the date on which the grounds for application of the law arose (29 October 2025) was fewer than five, the workplace does not fall within the scope of application of Article 28 of the Labor Standards Act. Accordingly, the application for remedy in this case was found not to fall within the remedial jurisdiction of the Labor Relations Commission.
1. Legal Implications
Ⅰ. Case Overview
In this application for remedy for unfair dismissal, the Labor Relations Commission first examined whether the number of regular employees at the workplace met the statutory threshold of “five or more” under the Labor Standards Act. The Jeonnam Regional Labor Relations Commission calculated the number of regular employees for the one‑month period prior to 29 October 2025, the date on which the grounds for application of the law arose, and concluded that this workplace does not constitute a workplace to which Article 28 of the Labor Standards Act applies.
The application for remedy for unfair dismissal was ultimately dismissed on the ground that the workplace does not fall within the scope of application of the Labor Standards Act, and therefore the Commission did not proceed to a hearing on the merits regarding the legitimacy of the dismissal. This decision can be viewed as a case in which the requirements for application of Articles 11 and 28 of the Labor Standards Act, which form the premise of the unfair dismissal remedy system, were applied strictly.
Ⅱ. Summary of Issues
The issue in this case was whether an application for remedy for unfair dismissal can be filed with the Labor Relations Commission in respect of a dismissal that occurred at a small workplace with fewer than five regular employees. In other words, the question was whether an unfair dismissal remedy through the Labor Relations Commission is possible even where the premise of “a business or workplace that regularly employs five or more employees,” as stipulated in Articles 11 and 28 of the Labor Standards Act, is not satisfied.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case comprehensively considered the following: that, when the number of regular employees employed at the workplace during the one‑month period prior to the date on which the grounds for application of the law arose was calculated in accordance with the method prescribed in Article 7‑2 of the Enforcement Decree of the Labor Standards Act, the number fell short of five; that Articles 11 and 28 of the Labor Standards Act limit the prohibition of dismissal without just cause and the system of applications for remedy for unfair dismissal to workplaces with “five or more regular employees”; and that case law and commentaries concerning the calculation of the number of regular employees also regard applications for remedy for unfair dismissal from workplaces with fewer than five employees as subject to dismissal.
As a result, the Commission held that this workplace does not constitute a “workplace with five or more regular employees” to which Article 28 of the Labor Standards Act applies, and therefore the Labor Relations Commission has no authority to determine the legitimacy of the dismissal itself. Accordingly, before examining whether the dismissal in this case was justified, the Commission found that the application for remedy does not fall within the scope of rights‑remedy jurisdiction of the Labor Relations Commission and dismissed it.
Ⅳ. Practical Points (From the Employee’s Perspective)
If an employee believes they have been unfairly dismissed, they should not immediately rush to the Labor Relations Commission, but should first check whether their workplace qualifies as a “workplace with five or more regular employees” under the Labor Standards Act. It should be borne in mind that the number of regular employees is not determined solely by the headcount at the present time, but is calculated based on the total number of employee‑days during the one‑month period prior to the date on which the grounds for application of the law arose, and that daily workers, part‑time workers, and fixed‑term workers may also be included.
If, in fact, the number of regular employees is fewer than five, the procedure for remedy for unfair dismissal before the Labor Relations Commission is not available, and the effectiveness of the dismissal must be challenged through other avenues such as civil litigation. Therefore, employees should record and organize for themselves the actual number of workers and the forms of employment contracts before and after the dismissal, and, in addition to the question of whether the dismissal was unfair, consult in advance with experts such as Labor Law Firm Law& regarding “whether the law applies.”
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
Even for small workplaces with fewer than five regular employees, civil liability for unfair dismissal or liability under other statutes is not completely exempted, and dismissals must therefore be decided with caution. However, as the procedure for remedy for unfair dismissal through the Labor Relations Commission is limited, pursuant to Articles 11 and 28 of the Labor Standards Act, to workplaces with five or more regular employees, it is necessary for employers to accurately calculate and manage the number of regular employees at their workplaces in accordance with the legal standards.
In particular, where multiple branches or departments are operated, the result of calculating the number of regular employees may differ depending on whether they are regarded as a single workplace or as separate workplaces. It is therefore important to organize in advance the structure of the workplaces and the method of personnel management. To prevent future disputes, it is advisable to document the reasons and procedures for dismissal and to systematically retain the evidentiary basis for calculating the number of regular employees (work logs, payroll records, employment contracts, etc.).
This decision once again confirms that the starting point of an application for remedy for unfair dismissal is not the “legitimacy of the dismissal” but the “applicability of the Labor Standards Act.” Both employees and employers should correctly understand the legal principles concerning the number of regular employees and the unit of the workplace, and carefully examine, from the initial stage of a dispute, the jurisdiction of the Labor Relations Commission and the possibility of obtaining a remedy.
2. Matters Decided
A. Case Overview and Progress of the Procedure
As the number of regular employees employed at this workplace during the one‑month period prior to the date on which the grounds for application of the law arose (29 October 2025) was fewer than five, the workplace does not fall within the scope of application of Article 28 of the Labor Standards Act. Accordingly, the application for remedy in this case is found not to fall within the remedial jurisdiction of the Labor Relations Commission.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
As the number of regular employees employed at this workplace during the one‑month period prior to the date on which the grounds for application of the law arose (29 October 2025) was fewer than five, the workplace does not fall within the scope of application of Article 28 of the Labor Standards Act. Accordingly, the application for remedy in this case is found not to fall within the remedial jurisdiction of the Labor Relations Commission. /
[See More Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Unauthorized Absence (Allegations of Workplace Bullying and Depression)’”
- “Unfair Dismissal Decision Concerning ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision Concerning ‘Dismissal (Non‑Appearance at Hearing)’” – Decision date: – Case result: Dismissed
[Tags]
Unfair dismissal, scope of legal application (small workplaces with 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 Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal Decision Concerning ‘Unauthorized Absence (Allegations of Workplace Bullying and Depression)’,” in a new window.
※ The list of decisions related to the scope of legal application (small workplaces with fewer than five regular employees) can be viewed together on the page “List of Decisions Related to the Scope of Legal Application (Small Workplaces with Fewer Than Five Regular Employees).”
※ Korean version of this case: Korean article
This case is an unfair dismissal decision that was dismissed on procedural grounds at the stage of examining the issue of the “scope of legal application (small workplaces with fewer than five regular employees).”
Decision Committee: Jeonnam Regional Labor Relations Commission 2025Buhae9067 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2025.12.23 · Case result: Dismissed
Summary of key issue: As the number of regular employees employed at this workplace during the one‑month period prior to the date on which the grounds for application of the law arose (29 October 2025) was fewer than five, the workplace does not fall within the scope of application of Article 28 of the Labor Standards Act. Accordingly, the application for remedy in this case was found not to fall within the remedial jurisdiction of the Labor Relations Commission.
1. Legal Implications
Ⅰ. Case Overview
In this application for remedy for unfair dismissal, the Labor Relations Commission first examined whether the number of regular employees at the workplace met the statutory threshold of “five or more” under the Labor Standards Act. The Jeonnam Regional Labor Relations Commission calculated the number of regular employees for the one‑month period prior to 29 October 2025, the date on which the grounds for application of the law arose, and concluded that this workplace does not constitute a workplace to which Article 28 of the Labor Standards Act applies.
The application for remedy for unfair dismissal was ultimately dismissed on the ground that the workplace does not fall within the scope of application of the Labor Standards Act, and therefore the Commission did not proceed to a hearing on the merits regarding the legitimacy of the dismissal. This decision can be viewed as a case in which the requirements for application of Articles 11 and 28 of the Labor Standards Act, which form the premise of the unfair dismissal remedy system, were applied strictly.
Ⅱ. Summary of Issues
The issue in this case was whether an application for remedy for unfair dismissal can be filed with the Labor Relations Commission in respect of a dismissal that occurred at a small workplace with fewer than five regular employees. In other words, the question was whether an unfair dismissal remedy through the Labor Relations Commission is possible even where the premise of “a business or workplace that regularly employs five or more employees,” as stipulated in Articles 11 and 28 of the Labor Standards Act, is not satisfied.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case comprehensively considered the following: that, when the number of regular employees employed at the workplace during the one‑month period prior to the date on which the grounds for application of the law arose was calculated in accordance with the method prescribed in Article 7‑2 of the Enforcement Decree of the Labor Standards Act, the number fell short of five; that Articles 11 and 28 of the Labor Standards Act limit the prohibition of dismissal without just cause and the system of applications for remedy for unfair dismissal to workplaces with “five or more regular employees”; and that case law and commentaries concerning the calculation of the number of regular employees also regard applications for remedy for unfair dismissal from workplaces with fewer than five employees as subject to dismissal.
As a result, the Commission held that this workplace does not constitute a “workplace with five or more regular employees” to which Article 28 of the Labor Standards Act applies, and therefore the Labor Relations Commission has no authority to determine the legitimacy of the dismissal itself. Accordingly, before examining whether the dismissal in this case was justified, the Commission found that the application for remedy does not fall within the scope of rights‑remedy jurisdiction of the Labor Relations Commission and dismissed it.
Ⅳ. Practical Points (From the Employee’s Perspective)
If an employee believes they have been unfairly dismissed, they should not immediately rush to the Labor Relations Commission, but should first check whether their workplace qualifies as a “workplace with five or more regular employees” under the Labor Standards Act. It should be borne in mind that the number of regular employees is not determined solely by the headcount at the present time, but is calculated based on the total number of employee‑days during the one‑month period prior to the date on which the grounds for application of the law arose, and that daily workers, part‑time workers, and fixed‑term workers may also be included.
If, in fact, the number of regular employees is fewer than five, the procedure for remedy for unfair dismissal before the Labor Relations Commission is not available, and the effectiveness of the dismissal must be challenged through other avenues such as civil litigation. Therefore, employees should record and organize for themselves the actual number of workers and the forms of employment contracts before and after the dismissal, and, in addition to the question of whether the dismissal was unfair, consult in advance with experts such as Labor Law Firm Law& regarding “whether the law applies.”
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
Even for small workplaces with fewer than five regular employees, civil liability for unfair dismissal or liability under other statutes is not completely exempted, and dismissals must therefore be decided with caution. However, as the procedure for remedy for unfair dismissal through the Labor Relations Commission is limited, pursuant to Articles 11 and 28 of the Labor Standards Act, to workplaces with five or more regular employees, it is necessary for employers to accurately calculate and manage the number of regular employees at their workplaces in accordance with the legal standards.
In particular, where multiple branches or departments are operated, the result of calculating the number of regular employees may differ depending on whether they are regarded as a single workplace or as separate workplaces. It is therefore important to organize in advance the structure of the workplaces and the method of personnel management. To prevent future disputes, it is advisable to document the reasons and procedures for dismissal and to systematically retain the evidentiary basis for calculating the number of regular employees (work logs, payroll records, employment contracts, etc.).
This decision once again confirms that the starting point of an application for remedy for unfair dismissal is not the “legitimacy of the dismissal” but the “applicability of the Labor Standards Act.” Both employees and employers should correctly understand the legal principles concerning the number of regular employees and the unit of the workplace, and carefully examine, from the initial stage of a dispute, the jurisdiction of the Labor Relations Commission and the possibility of obtaining a remedy.
2. Matters Decided
A. Case Overview and Progress of the Procedure
As the number of regular employees employed at this workplace during the one‑month period prior to the date on which the grounds for application of the law arose (29 October 2025) was fewer than five, the workplace does not fall within the scope of application of Article 28 of the Labor Standards Act. Accordingly, the application for remedy in this case is found not to fall within the remedial jurisdiction of the Labor Relations Commission.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
As the number of regular employees employed at this workplace during the one‑month period prior to the date on which the grounds for application of the law arose (29 October 2025) was fewer than five, the workplace does not fall within the scope of application of Article 28 of the Labor Standards Act. Accordingly, the application for remedy in this case is found not to fall within the remedial jurisdiction of the Labor Relations Commission. /
[See More Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Unauthorized Absence (Allegations of Workplace Bullying and Depression)’”
- “Unfair Dismissal Decision Concerning ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision Concerning ‘Dismissal (Non‑Appearance at Hearing)’” – Decision date: – Case result: Dismissed
[Tags]
Unfair dismissal, scope of legal application (small workplaces with 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 Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal Decision Concerning ‘Unauthorized Absence (Allegations of Workplace Bullying and Depression)’,” in a new window.
※ The list of decisions related to the scope of legal application (small workplaces with fewer than five regular employees) can be viewed together on the page “List of Decisions Related to the Scope of Legal Application (Small Workplaces with Fewer Than Five Regular Employees).”
※ Korean version of this case: Korean article
