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Case on Unfair Dismissal Concerning “Calculation of the Number of Regular Employees (Spouse, Clinical Psychologist, Remote Worker)” (Unfair Dismissal 297)
- Date2026/03/19 04:09
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[Case Information]
This case is a decision that was concluded by dismissal on procedural grounds at the stage of the issue of “calculation of the number of regular employees (spouse, clinical psychologist, remote worker).”
Decision Committee: Seoul Regional Labor Relations Commission 2025Buhae9635 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.01.12 · Case result: Dismissed
Summary of key issues: (i) The deputy representative, as the employer’s spouse, could not be regarded as a worker and therefore could not be included in the number of regular employees; (ii) even if the clinical psychologists, who had concluded contracts identical to those of workers and worked in the same manner, were recognized as workers, excluding the employer and the deputy representative, then as of 2025…
1. Legal Implications
Ⅰ. Overview of the Case
In this case, a worker claimed unfair dismissal and filed an application for remedy with the Labor Relations Commission. Before examining the unfairness of the dismissal itself, the preliminary issue was whether the workplace in question constituted a business or workplace with “five or more workers on a regular basis” under the Labor Standards Act.
The Seoul Regional Labor Relations Commission examined the admissibility of the application for remedy for unfair dismissal, focusing on how to calculate the number of regular employees, including the deputy representative who is the employer’s spouse, the clinical psychologists, and the alleged remote workers asserted by the worker.
Ⅱ. Issues in Dispute
The issues in this case are: “By what criteria can the deputy representative who is the employer’s spouse, the clinical psychologists, and the remote workers for whom only job postings exist be included in the number of regular employees, and, as a result, whether this business constitutes a workplace with ‘five or more workers on a regular basis’ to which the Labor Standards Act and the unfair dismissal remedy system apply.”
Ⅲ. Summary of the Labor Relations Commission’s Findings
The panel in this case found as follows: the deputy representative, as the employer’s spouse, is difficult to regard as a worker under the Labor Standards Act and therefore must be excluded from the calculation of the number of regular employees; even if the clinical psychologists, excluding the employer and the deputy representative, are recognized as workers or as having contracts and working conditions identical to those of workers, the number of regular employees during the one‑month calculation period (23 September 2025 to 22 October 2025) under Article 7‑2 of the Enforcement Decree of the Labor Standards Act is only approximately 3.3 persons when calculated based on the total number of persons and operating days; furthermore, when examining the number of workers on a daily basis, the number of days on which the number of workers fell below five accounted for at least one‑half of the calculation period, such that the workplace did not meet the standard of a “business or workplace that ordinarily employs five or more workers” under Article 11 of the Labor Standards Act and the relevant case law; and with respect to the remote workers asserted by the worker, there was no objective evidence that any such personnel actually worked, and mere job postings were insufficient to include them as regular employees.
Taking all of these circumstances into account, the Commission reached its conclusion.
On this basis, the Commission held that the dismissal in this case did not occur at a workplace with “five or more workers on a regular basis” to which the Labor Standards Act applies, and therefore the prerequisite for filing an application for remedy for unfair dismissal was not satisfied. Accordingly, it found that the decision to dismiss the application for remedy for unfair dismissal itself was justified.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s perspective, when preparing an application for remedy for unfair dismissal, it is necessary first to examine whether the workplace qualifies as a “business or workplace that ordinarily employs five or more workers” under Article 11 of the Labor Standards Act, before arguing the unfairness of the dismissal.
To this end, it is important to secure, as far as possible, evidence of: the personnel who actually worked together; their status as workers (e.g. clinical psychologists, part‑time or short‑time workers); and daily headcounts during the one‑month calculation period, such as attendance records, payroll ledgers, and records of enrollment in the four major social insurances.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, even in the case of a small business with fewer than five regular employees, it must always be borne in mind that worker status may be recognized depending on how family members (such as a spouse) are utilized and the extent to which freelance or professional personnel are in fact subject to the employer’s direction and supervision.
In addition, materials related to the calculation of the number of regular employees (work schedules, payroll data, contracts, etc.) should be systematically managed on a regular basis so that, if a dispute arises before the Labor Relations Commission or the courts regarding the scope of application of the Labor Standards Act, the employer can explain its position with objective figures and records.
In this type of case, it is essential for both preventing and responding to disputes to have an accurate understanding of the standards for calculating the number of regular employees (total number of persons/operating days, the “one‑half of days below five workers” criterion, etc.) and the legal principles for determining worker status, and to carefully organize the facts in accordance with those standards.
2. Matters Determined
A. Overview of the Case and Procedural History
(i) The deputy representative, as the employer’s spouse, cannot be regarded as a worker and therefore cannot be included in the number of regular employees; (ii) even if the clinical psychologists, who, excluding the employer and the deputy representative, had concluded contracts identical to those of workers and worked in the same manner, are recognized as workers, the number of regular employees from 23 September 2025 to 22 October 2025 is 3.3 persons, and when the number of workers is examined on a daily basis within the calculation period, the number of days on which the number of workers fell below the statutory threshold is at least one‑half of the period; and (iii) with respect to the remote workers asserted by the worker, apart from the fact that job postings were made, there is no basis to find that such personnel actually existed.
In light of all of the above, the number of regular employees appears to be fewer than five.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Findings
(i) The deputy representative, as the employer’s spouse, cannot be regarded as a worker and therefore cannot be included in the number of regular employees; (ii) even if the clinical psychologists, who, excluding the employer and the deputy representative, had concluded contracts identical to those of workers and worked in the same manner, are recognized as workers, the number of regular employees from 23 September 2025 to 22 October 2025 is 3.3 persons, and when the number of workers is examined on a daily basis within the calculation period, the number of days on which the number of workers fell below the statutory threshold is at least one‑half of the period; and (iii) with respect to the remote workers asserted by the worker, apart from the fact that job postings were made, there is no basis to find that such personnel actually existed.
Taking all of these circumstances into account, the number of regular employees appears to be fewer than five. /
[See More Related Decisions]
- “Case on Unfair Dismissal Concerning Expression of Intention to Resign (Resignation Remark Made by Telephone)”
- “Case on Unfair Dismissal Concerning Dismissal (Non‑appearance at Hearing)” – Date of decision: – Case result: Dismissed
- “Case on Unfair Dismissal Concerning Written Notice (Messenger Dismissal)”
[Tags]
Unfair dismissal, calculation of the number of regular employees (spouse, clinical psychologist, remote worker), 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, “Case on Unfair Dismissal Concerning Written Notice (Messenger Dismissal),” in a new window.
※ The list of decisions related to calculation of the number of regular employees (spouse, clinical psychologist, remote worker) can be viewed together in the “List of Decisions Related to Calculation of the Number of Regular Employees (Spouse, Clinical Psychologist, Remote Worker).”
※ Korean version of this case: Korean article
This case is a decision that was concluded by dismissal on procedural grounds at the stage of the issue of “calculation of the number of regular employees (spouse, clinical psychologist, remote worker).”
Decision Committee: Seoul Regional Labor Relations Commission 2025Buhae9635 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.01.12 · Case result: Dismissed
Summary of key issues: (i) The deputy representative, as the employer’s spouse, could not be regarded as a worker and therefore could not be included in the number of regular employees; (ii) even if the clinical psychologists, who had concluded contracts identical to those of workers and worked in the same manner, were recognized as workers, excluding the employer and the deputy representative, then as of 2025…
1. Legal Implications
Ⅰ. Overview of the Case
In this case, a worker claimed unfair dismissal and filed an application for remedy with the Labor Relations Commission. Before examining the unfairness of the dismissal itself, the preliminary issue was whether the workplace in question constituted a business or workplace with “five or more workers on a regular basis” under the Labor Standards Act.
The Seoul Regional Labor Relations Commission examined the admissibility of the application for remedy for unfair dismissal, focusing on how to calculate the number of regular employees, including the deputy representative who is the employer’s spouse, the clinical psychologists, and the alleged remote workers asserted by the worker.
Ⅱ. Issues in Dispute
The issues in this case are: “By what criteria can the deputy representative who is the employer’s spouse, the clinical psychologists, and the remote workers for whom only job postings exist be included in the number of regular employees, and, as a result, whether this business constitutes a workplace with ‘five or more workers on a regular basis’ to which the Labor Standards Act and the unfair dismissal remedy system apply.”
Ⅲ. Summary of the Labor Relations Commission’s Findings
The panel in this case found as follows: the deputy representative, as the employer’s spouse, is difficult to regard as a worker under the Labor Standards Act and therefore must be excluded from the calculation of the number of regular employees; even if the clinical psychologists, excluding the employer and the deputy representative, are recognized as workers or as having contracts and working conditions identical to those of workers, the number of regular employees during the one‑month calculation period (23 September 2025 to 22 October 2025) under Article 7‑2 of the Enforcement Decree of the Labor Standards Act is only approximately 3.3 persons when calculated based on the total number of persons and operating days; furthermore, when examining the number of workers on a daily basis, the number of days on which the number of workers fell below five accounted for at least one‑half of the calculation period, such that the workplace did not meet the standard of a “business or workplace that ordinarily employs five or more workers” under Article 11 of the Labor Standards Act and the relevant case law; and with respect to the remote workers asserted by the worker, there was no objective evidence that any such personnel actually worked, and mere job postings were insufficient to include them as regular employees.
Taking all of these circumstances into account, the Commission reached its conclusion.
On this basis, the Commission held that the dismissal in this case did not occur at a workplace with “five or more workers on a regular basis” to which the Labor Standards Act applies, and therefore the prerequisite for filing an application for remedy for unfair dismissal was not satisfied. Accordingly, it found that the decision to dismiss the application for remedy for unfair dismissal itself was justified.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s perspective, when preparing an application for remedy for unfair dismissal, it is necessary first to examine whether the workplace qualifies as a “business or workplace that ordinarily employs five or more workers” under Article 11 of the Labor Standards Act, before arguing the unfairness of the dismissal.
To this end, it is important to secure, as far as possible, evidence of: the personnel who actually worked together; their status as workers (e.g. clinical psychologists, part‑time or short‑time workers); and daily headcounts during the one‑month calculation period, such as attendance records, payroll ledgers, and records of enrollment in the four major social insurances.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, even in the case of a small business with fewer than five regular employees, it must always be borne in mind that worker status may be recognized depending on how family members (such as a spouse) are utilized and the extent to which freelance or professional personnel are in fact subject to the employer’s direction and supervision.
In addition, materials related to the calculation of the number of regular employees (work schedules, payroll data, contracts, etc.) should be systematically managed on a regular basis so that, if a dispute arises before the Labor Relations Commission or the courts regarding the scope of application of the Labor Standards Act, the employer can explain its position with objective figures and records.
In this type of case, it is essential for both preventing and responding to disputes to have an accurate understanding of the standards for calculating the number of regular employees (total number of persons/operating days, the “one‑half of days below five workers” criterion, etc.) and the legal principles for determining worker status, and to carefully organize the facts in accordance with those standards.
2. Matters Determined
A. Overview of the Case and Procedural History
(i) The deputy representative, as the employer’s spouse, cannot be regarded as a worker and therefore cannot be included in the number of regular employees; (ii) even if the clinical psychologists, who, excluding the employer and the deputy representative, had concluded contracts identical to those of workers and worked in the same manner, are recognized as workers, the number of regular employees from 23 September 2025 to 22 October 2025 is 3.3 persons, and when the number of workers is examined on a daily basis within the calculation period, the number of days on which the number of workers fell below the statutory threshold is at least one‑half of the period; and (iii) with respect to the remote workers asserted by the worker, apart from the fact that job postings were made, there is no basis to find that such personnel actually existed.
In light of all of the above, the number of regular employees appears to be fewer than five.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Findings
(i) The deputy representative, as the employer’s spouse, cannot be regarded as a worker and therefore cannot be included in the number of regular employees; (ii) even if the clinical psychologists, who, excluding the employer and the deputy representative, had concluded contracts identical to those of workers and worked in the same manner, are recognized as workers, the number of regular employees from 23 September 2025 to 22 October 2025 is 3.3 persons, and when the number of workers is examined on a daily basis within the calculation period, the number of days on which the number of workers fell below the statutory threshold is at least one‑half of the period; and (iii) with respect to the remote workers asserted by the worker, apart from the fact that job postings were made, there is no basis to find that such personnel actually existed.
Taking all of these circumstances into account, the number of regular employees appears to be fewer than five. /
[See More Related Decisions]
- “Case on Unfair Dismissal Concerning Expression of Intention to Resign (Resignation Remark Made by Telephone)”
- “Case on Unfair Dismissal Concerning Dismissal (Non‑appearance at Hearing)” – Date of decision: – Case result: Dismissed
- “Case on Unfair Dismissal Concerning Written Notice (Messenger Dismissal)”
[Tags]
Unfair dismissal, calculation of the number of regular employees (spouse, clinical psychologist, remote worker), 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, “Case on Unfair Dismissal Concerning Written Notice (Messenger Dismissal),” in a new window.
※ The list of decisions related to calculation of the number of regular employees (spouse, clinical psychologist, remote worker) can be viewed together in the “List of Decisions Related to Calculation of the Number of Regular Employees (Spouse, Clinical Psychologist, Remote Worker).”
※ Korean version of this case: Korean article
