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‘Denial of Employee Status (Live-in Caregiver in Hospital)’ Unfair Dismissal Decision (Unfair Dismissal 471)
- Date2026/05/22 04:09
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[Case Information]
This case is an unfair dismissal decision in which the employer prevailed (application dismissed) on the issue of “denial of employee status (live-in caregiver in hospital).”
Adjudicating Body: Incheon Regional Labor Relations Commission
2026Buhae105 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.03.20 · Case outcome: Dismissed
Summary of key issue: The worker began providing caregiving services at Employer 1’s hospital on 24 November 2025 through a job posting by Employer 2, and at that time did not enter into any explicit employment contract with the employers.
1. Legal Implications
Ⅰ. Case Overview
This case concerns a caregiver who resided at a hospital 24 hours a day and cared for a patient, and who applied for a remedy for unfair dismissal on the basis that she was an employee under the Labor Standards Act. The Incheon Regional Labor Relations Commission did not accept this claim and dismissed the application. The Commission denied employee status not based on the formal label of the contract concluded between the caregiver and the employers, but after comprehensively examining the actual manner in which the work was provided and the structure of remuneration. In this regard, Labor Law Firm Law& advises that, in disputes involving caregivers, platform workers, and similar types of work, particular attention should be paid to the criteria used to determine employee status.
Ⅱ. Summary of Issues
The issue in this case is whether a caregiver who resides in a hospital, cares for a specific patient, cooperates to some extent with hospital staff, and receives caregiving fees from the patient which are then paid to her after deduction of commissions, qualifies as an “employee” under the Labor Standards Act and, therefore, can be a proper party to an application for remedy for unfair dismissal before the Labor Relations Commission.
Ⅲ. Outline of the Labor Relations Commission’s Decision
The panel in this case noted that there was no explicit employment contract such as a written employment agreement; that reporting the patient’s food intake to the head nurse and following the hospital’s bathing guidelines were merely routine cooperative acts incidental to caregiving work and could not easily be viewed as specific and individual directions or supervision; and that the caregiver’s 24‑hour presence at the hospital was due to the patient’s choice rather than the employers’ instructions, so her working hours could not be regarded as being controlled by the employers.
Taking into account that the caregiver could freely request a substitute caregiver (daegeunja) according to her personal schedule and in fact arranged for a substitute during her vacation; that she did not receive any fixed base salary; that the caregiving fees paid by the patient were passed through the hospital and the caregiver referral agency, with commissions deducted before payment to her; and that this remuneration was closer to consideration for services than to wages,
the Commission concluded that it was difficult to regard the caregiver as an employee under the Labor Standards Act who provided work for the purpose of wages in a subordinate relationship to the employers. Accordingly, it held that the dismissal in this case did not constitute unfair dismissal of an employee.
Ⅳ. Practical Points (From the Worker’s Perspective)
Caregivers, freelancers, and those working under consignment or service‑contract arrangements should examine for themselves the extent to which they are in fact subject to the employer’s direction and supervision; whether working hours and place of work are set by the employer; whether they can freely substitute a third party; and whether their remuneration is a “fixed wage” or a “per‑case commission.” To apply to the Labor Relations Commission for a remedy for unfair dismissal, employee status under the Labor Standards Act must first be established. Therefore, you should routinely keep records not only of the contract terms but also of your actual working patterns, details of wage payments, and attendance management practices.
Ⅴ. Practical Points (From the Employer/Company Perspective)
Hospitals, caregiver referral agencies, platform companies, and similar entities, when structuring their relationships with caregivers, commissioned drivers, freelancers, etc., should either minimize elements that may in substance lead to recognition of employee status (strong specification of working hours and place of work, controls equivalent to personnel or disciplinary measures, payment of fixed wages, etc.), or, if recognition as employees is anticipated, clearly establish from the outset an employment contract, enrollment in the four major social insurances, and a system for complying with the Labor Standards Act. Even if a contract is titled a “service contract,” if the actual operation meets the criteria for employee status, disputes over unfair dismissal, severance pay, and wage claims may arise. It is therefore advisable to review the structure in advance together with a specialist labor attorney, such as at Labor Law Firm Law&.
2. Matters Adjudicated
a. Case Overview and Procedural History
The worker began providing caregiving services at Employer 1’s hospital on 24 November 2025 through a job posting by Employer 2, and at that time did not enter into any explicit employment contract with the employers. The worker’s reporting of the patient’s food intake to Employer 1’s head nurse and her compliance with bathing guidelines requested by Employer 1 were merely cooperative acts incidental to the essence of caregiving work and are difficult to regard as direct direction or supervision of work. In addition, the fact that the worker resided at Company 1 (Employer 1) 24 hours a day to care for the patient was due to the choice of the patient receiving care, not to the employers’ instructions, and thus it cannot be viewed that the employers determined and controlled the worker’s working hours. Furthermore, the worker requested a substitute caregiver (daegeunja) from Employer 2 for personal reasons and actually had work performed by a substitute during her vacation, which shows that the subordination characteristic, a principal feature of an employee, was weak. Moreover, the worker did not receive a fixed base salary from the employers, and given that the consideration for the caregiving service originated from the patient, passed through Employer 1 to Employer 2, and was then paid to the worker after deduction of commissions, it is reasonable to view this as consideration for the provision of services rather than wages as consideration for work.
3. Gist of the Decision
a. Outline of the Labor Relations Commission’s Decision
The worker began providing caregiving services at Employer 1’s hospital on 24 November 2025 through a job posting by Employer 2, and at that time did not enter into any explicit employment contract with the employers. The worker’s reporting of the patient’s food intake to Employer 1’s head nurse and her compliance with bathing guidelines requested by Employer 1 were merely cooperative acts incidental to the essence of caregiving work and are difficult to regard as direct direction or supervision of work. In addition, the fact that the worker resided at Company 1 (Employer 1) 24 hours a day to care for the patient was due to the choice of the patient receiving care, not to the employers’ instructions, and thus it cannot be viewed that the employers determined and controlled the worker’s working hours. Furthermore, the worker requested a substitute caregiver (daegeunja) from Employer 2 for personal reasons and actually had work performed by a substitute during her vacation, which shows that the subordination characteristic, a principal feature of an employee, was weak. Moreover, the worker did not receive a fixed base salary from the employers, and given that the consideration for the caregiving service originated from the patient, passed through Employer 1 to Employer 2, and was then paid to the worker after deduction of commissions, it is reasonable to view this as consideration for the provision of services rather than wages as consideration for work. /
[See More Related Decisions]
- ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’ Unfair Dismissal Decision
- ‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’ Unfair Dismissal Decision
- ‘Non‑Formation of Hiring Decision (Absence of Offer Letter)’ Unfair Dismissal Decision – Date of decision: - Case outcome: Initial decision upheld
[Tags]
Unfair dismissal, denial of employee status (live‑in caregiver in hospital), 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “‘Number of Regular Employees (Aggregation of Individual Business Establishments)’ Unfair Dismissal Decision,” in a new window.
※ A list of decisions related to denial of employee status (live‑in caregiver in hospital) can be found under “List of Decisions Related to Denial of Employee Status (Live‑in Caregiver in Hospital).”
※ Korean version of this case: Korean article
This case is an unfair dismissal decision in which the employer prevailed (application dismissed) on the issue of “denial of employee status (live-in caregiver in hospital).”
Adjudicating Body: Incheon Regional Labor Relations Commission
2026Buhae105 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.03.20 · Case outcome: Dismissed
Summary of key issue: The worker began providing caregiving services at Employer 1’s hospital on 24 November 2025 through a job posting by Employer 2, and at that time did not enter into any explicit employment contract with the employers.
1. Legal Implications
Ⅰ. Case Overview
This case concerns a caregiver who resided at a hospital 24 hours a day and cared for a patient, and who applied for a remedy for unfair dismissal on the basis that she was an employee under the Labor Standards Act. The Incheon Regional Labor Relations Commission did not accept this claim and dismissed the application. The Commission denied employee status not based on the formal label of the contract concluded between the caregiver and the employers, but after comprehensively examining the actual manner in which the work was provided and the structure of remuneration. In this regard, Labor Law Firm Law& advises that, in disputes involving caregivers, platform workers, and similar types of work, particular attention should be paid to the criteria used to determine employee status.
Ⅱ. Summary of Issues
The issue in this case is whether a caregiver who resides in a hospital, cares for a specific patient, cooperates to some extent with hospital staff, and receives caregiving fees from the patient which are then paid to her after deduction of commissions, qualifies as an “employee” under the Labor Standards Act and, therefore, can be a proper party to an application for remedy for unfair dismissal before the Labor Relations Commission.
Ⅲ. Outline of the Labor Relations Commission’s Decision
The panel in this case noted that there was no explicit employment contract such as a written employment agreement; that reporting the patient’s food intake to the head nurse and following the hospital’s bathing guidelines were merely routine cooperative acts incidental to caregiving work and could not easily be viewed as specific and individual directions or supervision; and that the caregiver’s 24‑hour presence at the hospital was due to the patient’s choice rather than the employers’ instructions, so her working hours could not be regarded as being controlled by the employers.
Taking into account that the caregiver could freely request a substitute caregiver (daegeunja) according to her personal schedule and in fact arranged for a substitute during her vacation; that she did not receive any fixed base salary; that the caregiving fees paid by the patient were passed through the hospital and the caregiver referral agency, with commissions deducted before payment to her; and that this remuneration was closer to consideration for services than to wages,
the Commission concluded that it was difficult to regard the caregiver as an employee under the Labor Standards Act who provided work for the purpose of wages in a subordinate relationship to the employers. Accordingly, it held that the dismissal in this case did not constitute unfair dismissal of an employee.
Ⅳ. Practical Points (From the Worker’s Perspective)
Caregivers, freelancers, and those working under consignment or service‑contract arrangements should examine for themselves the extent to which they are in fact subject to the employer’s direction and supervision; whether working hours and place of work are set by the employer; whether they can freely substitute a third party; and whether their remuneration is a “fixed wage” or a “per‑case commission.” To apply to the Labor Relations Commission for a remedy for unfair dismissal, employee status under the Labor Standards Act must first be established. Therefore, you should routinely keep records not only of the contract terms but also of your actual working patterns, details of wage payments, and attendance management practices.
Ⅴ. Practical Points (From the Employer/Company Perspective)
Hospitals, caregiver referral agencies, platform companies, and similar entities, when structuring their relationships with caregivers, commissioned drivers, freelancers, etc., should either minimize elements that may in substance lead to recognition of employee status (strong specification of working hours and place of work, controls equivalent to personnel or disciplinary measures, payment of fixed wages, etc.), or, if recognition as employees is anticipated, clearly establish from the outset an employment contract, enrollment in the four major social insurances, and a system for complying with the Labor Standards Act. Even if a contract is titled a “service contract,” if the actual operation meets the criteria for employee status, disputes over unfair dismissal, severance pay, and wage claims may arise. It is therefore advisable to review the structure in advance together with a specialist labor attorney, such as at Labor Law Firm Law&.
2. Matters Adjudicated
a. Case Overview and Procedural History
The worker began providing caregiving services at Employer 1’s hospital on 24 November 2025 through a job posting by Employer 2, and at that time did not enter into any explicit employment contract with the employers. The worker’s reporting of the patient’s food intake to Employer 1’s head nurse and her compliance with bathing guidelines requested by Employer 1 were merely cooperative acts incidental to the essence of caregiving work and are difficult to regard as direct direction or supervision of work. In addition, the fact that the worker resided at Company 1 (Employer 1) 24 hours a day to care for the patient was due to the choice of the patient receiving care, not to the employers’ instructions, and thus it cannot be viewed that the employers determined and controlled the worker’s working hours. Furthermore, the worker requested a substitute caregiver (daegeunja) from Employer 2 for personal reasons and actually had work performed by a substitute during her vacation, which shows that the subordination characteristic, a principal feature of an employee, was weak. Moreover, the worker did not receive a fixed base salary from the employers, and given that the consideration for the caregiving service originated from the patient, passed through Employer 1 to Employer 2, and was then paid to the worker after deduction of commissions, it is reasonable to view this as consideration for the provision of services rather than wages as consideration for work.
3. Gist of the Decision
a. Outline of the Labor Relations Commission’s Decision
The worker began providing caregiving services at Employer 1’s hospital on 24 November 2025 through a job posting by Employer 2, and at that time did not enter into any explicit employment contract with the employers. The worker’s reporting of the patient’s food intake to Employer 1’s head nurse and her compliance with bathing guidelines requested by Employer 1 were merely cooperative acts incidental to the essence of caregiving work and are difficult to regard as direct direction or supervision of work. In addition, the fact that the worker resided at Company 1 (Employer 1) 24 hours a day to care for the patient was due to the choice of the patient receiving care, not to the employers’ instructions, and thus it cannot be viewed that the employers determined and controlled the worker’s working hours. Furthermore, the worker requested a substitute caregiver (daegeunja) from Employer 2 for personal reasons and actually had work performed by a substitute during her vacation, which shows that the subordination characteristic, a principal feature of an employee, was weak. Moreover, the worker did not receive a fixed base salary from the employers, and given that the consideration for the caregiving service originated from the patient, passed through Employer 1 to Employer 2, and was then paid to the worker after deduction of commissions, it is reasonable to view this as consideration for the provision of services rather than wages as consideration for work. /
[See More Related Decisions]
- ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’ Unfair Dismissal Decision
- ‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’ Unfair Dismissal Decision
- ‘Non‑Formation of Hiring Decision (Absence of Offer Letter)’ Unfair Dismissal Decision – Date of decision: - Case outcome: Initial decision upheld
[Tags]
Unfair dismissal, denial of employee status (live‑in caregiver in hospital), 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “‘Number of Regular Employees (Aggregation of Individual Business Establishments)’ Unfair Dismissal Decision,” in a new window.
※ A list of decisions related to denial of employee status (live‑in caregiver in hospital) can be found under “List of Decisions Related to Denial of Employee Status (Live‑in Caregiver in Hospital).”
※ Korean version of this case: Korean article
