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“Legal Requirements for Application (Restaurants with Fewer than Five Regular Employees)” – Unfair Dismissal Decision (Unfair Dismissal 177)
- Date2026/02/04 04:14
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[Case Information]
This case is a decision that was dismissed on procedural grounds at the stage of examining the “legal requirements for application (restaurant with fewer than five regular employees).”
Decision Committee: Seoul Regional Labor Relations Commission 2025Buhae9172 ○ ○ ○ Application for Remedy for Unfair Dismissal
2025.12.16 · Case result: Dismissal
Key issue summary:
1) Comparing the employer’s submitted table calculating the number of regular employees with the attendance board for June–July 2025, the number of regular employees at the workplace was 4.9, and on 15 or more of the 30 operating days the number of regular employees was fewer than five, falling short of the statutory threshold for application; therefore, the workplace had fewer than five regular employees.
2) The employee asserted that, based on the staffing plan explained by the employer at the interview (“1 manager (auntie) and 1 part-timer in the hall, 1 main cook in the kitchen, ...”), the workplace should be deemed to have at least five regular employees.
1. Legal Implications
Ⅰ. Case Overview
In this case, an employee working at a small restaurant filed an application with the Labor Relations Commission seeking a remedy for unfair dismissal. However, the case was dismissed on the ground that the number of regular employees was fewer than five. The Commission first examined, based on the employer’s submitted table of regular employees and attendance records, whether the workplace fell within the scope of the Labor Standards Act’s unfair dismissal remedy system.
The employee argued that the workplace was a business with at least five regular employees, relying on the staffing plan and related explanations given by the employer at the time of the job interview. The Labor Relations Commission did not accept this argument.
Ⅱ. Summary of Issues
The issue in this case is:
“When an employee at a small restaurant claims unfair dismissal and files an application for remedy with the Labor Relations Commission, can the unfair dismissal remedy system under the Labor Standards Act apply to a workplace where the actual number of regular employees is fewer than five?”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case cited the following grounds: when the table calculating the number of regular employees for June–July 2025 submitted by the employer is compared with the attendance board, the number of regular employees is only 4.9; on 15 or more of the 30 operating days, the number of regular employees was fewer than five, which falls short of the threshold for application set forth in Article 7-2 of the Enforcement Decree of the Labor Standards Act; and therefore, even under social norms, this workplace does not constitute “a business employing at least five regular employees.”
The employee argued that, at the interview, the employer stated “4 people: 1 manager in the hall, 1 part-timer, and 2 in the kitchen,” and also mentioned that “going forward, we will use at least 4 and up to 5 people in the hall,” and on that basis claimed that the number of regular employees was at least five. The Commission viewed these statements as nothing more than an abstract staffing plan or explanation.
Because the dismissal in this case did not satisfy the requirement of being a “workplace with at least five regular employees” to which Articles 11, 23, and 28 of the Labor Standards Act apply, the Commission held that the legal requirement for application, which is a prerequisite for an unfair dismissal remedy application, was not met, and therefore the dismissal of the application was proper.
Ⅳ. Practical Points (From the Employee’s Perspective)
When preparing an application for remedy for unfair dismissal, employees must first confirm whether their workplace has at least five regular employees, before addressing the legitimacy of the dismissal itself. In particular, for small businesses such as restaurants and cafés, statements like “we usually employ a lot of people” or “we plan to increase headcount” are generally insufficient to establish that the workplace has at least five regular employees. Objective materials such as actual attendance records, employment contracts, payroll ledgers, and work schedules are required.
In addition, employees should understand that the number of regular employees is calculated by the “total number of employee-days ÷ number of operating days” method for the one-month period preceding the date on which the legal cause for application arose, and that the proportion of days during that period when the number of employees was fewer than five is also comprehensively considered. It is important to systematically secure and organize the materials to be submitted to the Labor Relations Commission.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s standpoint, it should be borne in mind that the calculation of the number of regular employees is directly linked to the applicability of the Labor Standards Act as a whole, and in particular to the applicability of the unfair dismissal remedy system. Employers should clearly manage the actual number of employees used through attendance sheets, schedules, and wage ledgers, and accurately calculate the number of regular employees, including daily and part-time workers.
Moreover, rather than simply thinking, “We have fewer than five employees, so no rules apply to us,” employers should also consider the possibility of future increases in headcount, integrated assessment of affiliated or related workplaces, and the applicability of other labor-related laws beyond the Labor Standards Act, in order to manage HR and labor risks.
This decision illustrates that, in relation to unfair dismissal and the use of the Labor Relations Commission’s remedy system, the issue may be determined first at the level of the legal requirement of “at least five regular employees,” before reaching the question of whether the grounds for dismissal are justified. In similar situations, it is advisable to consult sufficiently with a specialized organization such as Labor Law Firm Law& from the stage of calculating the number of regular employees and preparing supporting documentation.
2. Matters Decided
A. Case Overview and Procedural Progress
1) Comparing the employer’s submitted table calculating the number of regular employees with the attendance board for June–July 2025, the number of regular employees at the workplace was 4.9, and on 15 or more of the 30 operating days the number of regular employees was fewer than five, thereby falling short of the statutory threshold for application; thus, the workplace had fewer than five regular employees.
2) The employee argued that the number of regular employees was at least five, citing the employer’s explanation at the interview that there were “4 people: 1 manager (auntie) and 1 part-timer in the hall, 1 main cook in the kitchen, and 1 person for dishwashing,” and the employer’s remark at the interview that, if the employee were hired, “we will use at least 4 and up to 5 people in the hall.” However, this argument relies on the employer’s description of an abstract situation, and it is difficult to generalize from this that 5 employees worked every day. There is no other evidence to support the claim that the number of regular employees was at least five.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
1) Comparing the employer’s submitted table calculating the number of regular employees with the attendance board for June–July 2025, the number of regular employees at the workplace was 4.9, and on 15 or more of the 30 operating days the number of regular employees was fewer than five, thereby falling short of the statutory threshold for application; thus, the workplace had fewer than five regular employees.
2) The employee argued that the number of regular employees was at least five, citing the employer’s explanation at the interview that there were “4 people: 1 manager (auntie) and 1 part-timer in the hall, 1 main cook in the kitchen, and 1 person for dishwashing,” and the employer’s remark at the interview that, if the employee were hired, “we will use at least 4 and up to 5 people in the hall.” However, this argument relies on the employer’s description of an abstract situation, and it is difficult to generalize from this that 5 employees worked every day. There is no other evidence to support the claim that the number of regular employees was at least five. /
[More Related Decisions]
- “Expression of Intent to Resign (Resignation Remark over the Phone)” – Unfair Dismissal Decision
- “Non-Existence of Expectation of Renewal (One-Time Contract after Business Transfer)” – Unfair Dismissal Decision
- “Denial of Employee Status (Unlimited Corporate Credit Card)” – Unfair Dismissal Decision
[Tags]
Unfair dismissal, legal requirements for application (restaurant 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “‘Denial of Employee Status (Unlimited Corporate Credit Card)’ – Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to “legal requirements for application (restaurant with fewer than five regular employees)” can be viewed together on the page “List of Decisions Related to Legal Requirements for Application (Restaurant with Fewer than Five Regular Employees).”
※ Korean version of this case: Korean article
This case is a decision that was dismissed on procedural grounds at the stage of examining the “legal requirements for application (restaurant with fewer than five regular employees).”
Decision Committee: Seoul Regional Labor Relations Commission 2025Buhae9172 ○ ○ ○ Application for Remedy for Unfair Dismissal
2025.12.16 · Case result: Dismissal
Key issue summary:
1) Comparing the employer’s submitted table calculating the number of regular employees with the attendance board for June–July 2025, the number of regular employees at the workplace was 4.9, and on 15 or more of the 30 operating days the number of regular employees was fewer than five, falling short of the statutory threshold for application; therefore, the workplace had fewer than five regular employees.
2) The employee asserted that, based on the staffing plan explained by the employer at the interview (“1 manager (auntie) and 1 part-timer in the hall, 1 main cook in the kitchen, ...”), the workplace should be deemed to have at least five regular employees.
1. Legal Implications
Ⅰ. Case Overview
In this case, an employee working at a small restaurant filed an application with the Labor Relations Commission seeking a remedy for unfair dismissal. However, the case was dismissed on the ground that the number of regular employees was fewer than five. The Commission first examined, based on the employer’s submitted table of regular employees and attendance records, whether the workplace fell within the scope of the Labor Standards Act’s unfair dismissal remedy system.
The employee argued that the workplace was a business with at least five regular employees, relying on the staffing plan and related explanations given by the employer at the time of the job interview. The Labor Relations Commission did not accept this argument.
Ⅱ. Summary of Issues
The issue in this case is:
“When an employee at a small restaurant claims unfair dismissal and files an application for remedy with the Labor Relations Commission, can the unfair dismissal remedy system under the Labor Standards Act apply to a workplace where the actual number of regular employees is fewer than five?”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case cited the following grounds: when the table calculating the number of regular employees for June–July 2025 submitted by the employer is compared with the attendance board, the number of regular employees is only 4.9; on 15 or more of the 30 operating days, the number of regular employees was fewer than five, which falls short of the threshold for application set forth in Article 7-2 of the Enforcement Decree of the Labor Standards Act; and therefore, even under social norms, this workplace does not constitute “a business employing at least five regular employees.”
The employee argued that, at the interview, the employer stated “4 people: 1 manager in the hall, 1 part-timer, and 2 in the kitchen,” and also mentioned that “going forward, we will use at least 4 and up to 5 people in the hall,” and on that basis claimed that the number of regular employees was at least five. The Commission viewed these statements as nothing more than an abstract staffing plan or explanation.
Because the dismissal in this case did not satisfy the requirement of being a “workplace with at least five regular employees” to which Articles 11, 23, and 28 of the Labor Standards Act apply, the Commission held that the legal requirement for application, which is a prerequisite for an unfair dismissal remedy application, was not met, and therefore the dismissal of the application was proper.
Ⅳ. Practical Points (From the Employee’s Perspective)
When preparing an application for remedy for unfair dismissal, employees must first confirm whether their workplace has at least five regular employees, before addressing the legitimacy of the dismissal itself. In particular, for small businesses such as restaurants and cafés, statements like “we usually employ a lot of people” or “we plan to increase headcount” are generally insufficient to establish that the workplace has at least five regular employees. Objective materials such as actual attendance records, employment contracts, payroll ledgers, and work schedules are required.
In addition, employees should understand that the number of regular employees is calculated by the “total number of employee-days ÷ number of operating days” method for the one-month period preceding the date on which the legal cause for application arose, and that the proportion of days during that period when the number of employees was fewer than five is also comprehensively considered. It is important to systematically secure and organize the materials to be submitted to the Labor Relations Commission.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s standpoint, it should be borne in mind that the calculation of the number of regular employees is directly linked to the applicability of the Labor Standards Act as a whole, and in particular to the applicability of the unfair dismissal remedy system. Employers should clearly manage the actual number of employees used through attendance sheets, schedules, and wage ledgers, and accurately calculate the number of regular employees, including daily and part-time workers.
Moreover, rather than simply thinking, “We have fewer than five employees, so no rules apply to us,” employers should also consider the possibility of future increases in headcount, integrated assessment of affiliated or related workplaces, and the applicability of other labor-related laws beyond the Labor Standards Act, in order to manage HR and labor risks.
This decision illustrates that, in relation to unfair dismissal and the use of the Labor Relations Commission’s remedy system, the issue may be determined first at the level of the legal requirement of “at least five regular employees,” before reaching the question of whether the grounds for dismissal are justified. In similar situations, it is advisable to consult sufficiently with a specialized organization such as Labor Law Firm Law& from the stage of calculating the number of regular employees and preparing supporting documentation.
2. Matters Decided
A. Case Overview and Procedural Progress
1) Comparing the employer’s submitted table calculating the number of regular employees with the attendance board for June–July 2025, the number of regular employees at the workplace was 4.9, and on 15 or more of the 30 operating days the number of regular employees was fewer than five, thereby falling short of the statutory threshold for application; thus, the workplace had fewer than five regular employees.
2) The employee argued that the number of regular employees was at least five, citing the employer’s explanation at the interview that there were “4 people: 1 manager (auntie) and 1 part-timer in the hall, 1 main cook in the kitchen, and 1 person for dishwashing,” and the employer’s remark at the interview that, if the employee were hired, “we will use at least 4 and up to 5 people in the hall.” However, this argument relies on the employer’s description of an abstract situation, and it is difficult to generalize from this that 5 employees worked every day. There is no other evidence to support the claim that the number of regular employees was at least five.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
1) Comparing the employer’s submitted table calculating the number of regular employees with the attendance board for June–July 2025, the number of regular employees at the workplace was 4.9, and on 15 or more of the 30 operating days the number of regular employees was fewer than five, thereby falling short of the statutory threshold for application; thus, the workplace had fewer than five regular employees.
2) The employee argued that the number of regular employees was at least five, citing the employer’s explanation at the interview that there were “4 people: 1 manager (auntie) and 1 part-timer in the hall, 1 main cook in the kitchen, and 1 person for dishwashing,” and the employer’s remark at the interview that, if the employee were hired, “we will use at least 4 and up to 5 people in the hall.” However, this argument relies on the employer’s description of an abstract situation, and it is difficult to generalize from this that 5 employees worked every day. There is no other evidence to support the claim that the number of regular employees was at least five. /
[More Related Decisions]
- “Expression of Intent to Resign (Resignation Remark over the Phone)” – Unfair Dismissal Decision
- “Non-Existence of Expectation of Renewal (One-Time Contract after Business Transfer)” – Unfair Dismissal Decision
- “Denial of Employee Status (Unlimited Corporate Credit Card)” – Unfair Dismissal Decision
[Tags]
Unfair dismissal, legal requirements for application (restaurant 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “‘Denial of Employee Status (Unlimited Corporate Credit Card)’ – Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to “legal requirements for application (restaurant with fewer than five regular employees)” can be viewed together on the page “List of Decisions Related to Legal Requirements for Application (Restaurant with Fewer than Five Regular Employees).”
※ Korean version of this case: Korean article
