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‘Legal Requirements for Application (Fewer than Five Regular Employees)’ Unfair Dismissal Decision (Unfair Dismissal 336)
- Date2026/04/01 04:09
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[Case Information]
This case is a decision that was dismissed on procedural grounds at the stage of examining the issue of “legal requirements for application (fewer than five regular employees).”
Decision Committee: Jeonnam Regional Labor Relations Commission 2025Buhae9263 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.02.27 · Case Number: Dismissal
Summary of Key Issue: The employee did not submit any objective materials to prove that the company had at least five regular employees. Based on the employer’s submission regarding the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the total cumulative number of employees used during the one‑month calculation period immediately preceding the date on which the grounds for application of the law arose (17 October 2025)—that is, from 17 September 2025 to 16 October 2025—was 66, and the number of operating days was 20. Therefore, when divided in accordance with the formula under the Enforcement Decree of the Labor Standards Act, the number of regular employees was calculated as 3.3, which is fewer than five, and…
1. Legal Implications
Ⅰ. Overview of the Case
In this case, the employee claimed that the employer’s dismissal was unfair and filed an application for remedy with the Labor Relations Commission. However, the case was dismissed because the key issue became whether the workplace had fewer than five regular employees. Unlike the unfair dismissal cases frequently handled by Labor Law Firm Law&, the Commission in this case focused its review, prior to assessing the legitimacy of the dismissal itself, on whether the requirement for application of the Labor Standards Act and the unfair dismissal remedy system—namely, the number of regular employees—was satisfied.
Ⅱ. Summary of Issues
The issue in this case is “whether this workplace falls under a business or workplace that has employed at least five employees on a regular basis during the one‑month period immediately preceding the date on which the grounds for application of the law arose, and thus is subject to an application for remedy for unfair dismissal.”
Ⅲ. Summary of the Labor Relations Commission’s Decision
The panel in this case noted that the employee did not submit any objective materials to prove that the company had at least five regular employees. According to the employer’s submission on the calculation of the number of regular employees and the employment insurance enrollment status confirmed by the Labor Relations Commission, the total cumulative number of employees used during the one‑month period immediately preceding the date on which the grounds for application of the law arose was 66, and the number of operating days was 20. When this is divided in accordance with the formula under the Enforcement Decree of the Labor Standards Act, the number of regular employees is calculated as 3.3, which is confirmed to be fewer than five.
Accordingly, the Commission held that this workplace does not fall under a “business or workplace that regularly employs at least five employees” as prescribed in Article 11 of the Labor Standards Act. Therefore, it determined that the dismissal in this case cannot be the subject of an application for remedy for unfair dismissal under the Labor Standards Act, and that it is appropriate to dismiss the application without proceeding to a decision on the merits.
Ⅳ. Practical Points (From the Employee’s Perspective)
To challenge a dismissal as unfair, an employee must first confirm whether the company at which they worked legally qualifies as a workplace with at least five regular employees. In particular, for small businesses whose headcount is near the threshold, it is important to secure in advance materials that can prove the number of regular employees, such as payroll records, lists of subscribers to the four major social insurances, attendance records, and employment contracts.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, because the applicability of the Labor Standards Act and the unfair dismissal remedy system depends on the method of calculating the number of regular employees (total cumulative number of employees ÷ number of operating days), it is necessary to systematically manage attendance records, employment insurance and four major social insurance enrollment records, and records of the use of daily workers. However, even if the workplace has fewer than five regular employees, dismissal is not completely unrestricted. Employers should clarify the grounds and procedures for dismissal as much as possible, and if workforce reductions or personnel adjustments are anticipated, they should consult in advance with experts such as Labor Law Firm Law&.
2. Matters Decided
A. Overview of the Case and Procedural Progress
The employee did not submit any objective materials to prove that the company had at least five regular employees. Based on the employer’s submission regarding the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the total cumulative number of employees used during the one‑month calculation period immediately preceding the date on which the grounds for application of the law arose (17 October 2025)—that is, from 17 September 2025 to 16 October 2025—was 66, and the number of operating days was 20. Thus, the number of regular employees was calculated as 3.3, and it was confirmed that the company had fewer than five regular employees. Therefore, the case is not subject to an application for remedy for unfair dismissal.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Decision
The employee did not submit any objective materials to prove that the company had at least five regular employees. Based on the employer’s submission regarding the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the total cumulative number of employees used during the one‑month calculation period immediately preceding the date on which the grounds for application of the law arose (17 October 2025)—that is, from 17 September 2025 to 16 October 2025—was 66, and the number of operating days was 20. Thus, the number of regular employees was calculated as 3.3, and it was confirmed that the company had fewer than five regular employees. Therefore, the case is not subject to an application for remedy for unfair dismissal. /
[See More Related Decisions]
- “Unfair Dismissal Decision Related to ‘Voluntary Resignation (Request to Take a Job at Another Company)’”
- “Unfair Dismissal Decision Related to ‘Dismissal (Non‑appearance at Hearing)’ – Date of Decision: – Case Number: Dismissal
- “Unfair Dismissal Decision Related to ‘Non‑Formation of Hiring Decision (Absence of Offer Letter)’ – Date of Decision: – Case Number: Original Decision Upheld
[Tags]
Unfair dismissal, legal requirements for 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, “Unfair Dismissal Decision Related to ‘Voluntary Resignation (Request to Take a Job at Another Company)’,” in a new window.
※ The list of decisions related to legal requirements for application (fewer than five regular employees) can be viewed together in the “List of Decisions Related to Legal Requirements for Application (Fewer than Five Regular Employees)” page.
※ Korean version of this case: Korean article
This case is a decision that was dismissed on procedural grounds at the stage of examining the issue of “legal requirements for application (fewer than five regular employees).”
Decision Committee: Jeonnam Regional Labor Relations Commission 2025Buhae9263 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.02.27 · Case Number: Dismissal
Summary of Key Issue: The employee did not submit any objective materials to prove that the company had at least five regular employees. Based on the employer’s submission regarding the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the total cumulative number of employees used during the one‑month calculation period immediately preceding the date on which the grounds for application of the law arose (17 October 2025)—that is, from 17 September 2025 to 16 October 2025—was 66, and the number of operating days was 20. Therefore, when divided in accordance with the formula under the Enforcement Decree of the Labor Standards Act, the number of regular employees was calculated as 3.3, which is fewer than five, and…
1. Legal Implications
Ⅰ. Overview of the Case
In this case, the employee claimed that the employer’s dismissal was unfair and filed an application for remedy with the Labor Relations Commission. However, the case was dismissed because the key issue became whether the workplace had fewer than five regular employees. Unlike the unfair dismissal cases frequently handled by Labor Law Firm Law&, the Commission in this case focused its review, prior to assessing the legitimacy of the dismissal itself, on whether the requirement for application of the Labor Standards Act and the unfair dismissal remedy system—namely, the number of regular employees—was satisfied.
Ⅱ. Summary of Issues
The issue in this case is “whether this workplace falls under a business or workplace that has employed at least five employees on a regular basis during the one‑month period immediately preceding the date on which the grounds for application of the law arose, and thus is subject to an application for remedy for unfair dismissal.”
Ⅲ. Summary of the Labor Relations Commission’s Decision
The panel in this case noted that the employee did not submit any objective materials to prove that the company had at least five regular employees. According to the employer’s submission on the calculation of the number of regular employees and the employment insurance enrollment status confirmed by the Labor Relations Commission, the total cumulative number of employees used during the one‑month period immediately preceding the date on which the grounds for application of the law arose was 66, and the number of operating days was 20. When this is divided in accordance with the formula under the Enforcement Decree of the Labor Standards Act, the number of regular employees is calculated as 3.3, which is confirmed to be fewer than five.
Accordingly, the Commission held that this workplace does not fall under a “business or workplace that regularly employs at least five employees” as prescribed in Article 11 of the Labor Standards Act. Therefore, it determined that the dismissal in this case cannot be the subject of an application for remedy for unfair dismissal under the Labor Standards Act, and that it is appropriate to dismiss the application without proceeding to a decision on the merits.
Ⅳ. Practical Points (From the Employee’s Perspective)
To challenge a dismissal as unfair, an employee must first confirm whether the company at which they worked legally qualifies as a workplace with at least five regular employees. In particular, for small businesses whose headcount is near the threshold, it is important to secure in advance materials that can prove the number of regular employees, such as payroll records, lists of subscribers to the four major social insurances, attendance records, and employment contracts.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, because the applicability of the Labor Standards Act and the unfair dismissal remedy system depends on the method of calculating the number of regular employees (total cumulative number of employees ÷ number of operating days), it is necessary to systematically manage attendance records, employment insurance and four major social insurance enrollment records, and records of the use of daily workers. However, even if the workplace has fewer than five regular employees, dismissal is not completely unrestricted. Employers should clarify the grounds and procedures for dismissal as much as possible, and if workforce reductions or personnel adjustments are anticipated, they should consult in advance with experts such as Labor Law Firm Law&.
2. Matters Decided
A. Overview of the Case and Procedural Progress
The employee did not submit any objective materials to prove that the company had at least five regular employees. Based on the employer’s submission regarding the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the total cumulative number of employees used during the one‑month calculation period immediately preceding the date on which the grounds for application of the law arose (17 October 2025)—that is, from 17 September 2025 to 16 October 2025—was 66, and the number of operating days was 20. Thus, the number of regular employees was calculated as 3.3, and it was confirmed that the company had fewer than five regular employees. Therefore, the case is not subject to an application for remedy for unfair dismissal.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Decision
The employee did not submit any objective materials to prove that the company had at least five regular employees. Based on the employer’s submission regarding the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the total cumulative number of employees used during the one‑month calculation period immediately preceding the date on which the grounds for application of the law arose (17 October 2025)—that is, from 17 September 2025 to 16 October 2025—was 66, and the number of operating days was 20. Thus, the number of regular employees was calculated as 3.3, and it was confirmed that the company had fewer than five regular employees. Therefore, the case is not subject to an application for remedy for unfair dismissal. /
[See More Related Decisions]
- “Unfair Dismissal Decision Related to ‘Voluntary Resignation (Request to Take a Job at Another Company)’”
- “Unfair Dismissal Decision Related to ‘Dismissal (Non‑appearance at Hearing)’ – Date of Decision: – Case Number: Dismissal
- “Unfair Dismissal Decision Related to ‘Non‑Formation of Hiring Decision (Absence of Offer Letter)’ – Date of Decision: – Case Number: Original Decision Upheld
[Tags]
Unfair dismissal, legal requirements for 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, “Unfair Dismissal Decision Related to ‘Voluntary Resignation (Request to Take a Job at Another Company)’,” in a new window.
※ The list of decisions related to legal requirements for application (fewer than five regular employees) can be viewed together in the “List of Decisions Related to Legal Requirements for Application (Fewer than Five Regular Employees)” page.
※ Korean version of this case: Korean article
