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Unfair Dismissal Decision Concerning “Scope of Legal Application (Calculation of Five Regular Employees)” (Unfair Dismissal 132)
- Date2026/01/21 04:23
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[Case Information]
This case is a decision in which the employee prevailed in full on the issue of “scope of legal application (calculation of five regular employees).”
Decision Committee: Busan Regional Labor Relations Commission, Case No. 2025부해757 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2025.11.14 · Result: Application fully upheld
Key issue summary:
A. Whether the number of regular employees was at least five: during the calculation period, the total cumulative number of employees used by the employer was 170. Dividing this by 31 operating days, the employer’s number of regular employees was 5.48.
1. Legal Implications
Ⅰ. Case Overview
In this case, an application for remedy was filed with the Labor Relations Commission in relation to an unfair dismissal that occurred at a workplace where the number of regular employees fluctuated around five. The Busan Regional Labor Relations Commission sequentially examined whether the Labor Standards Act applied, whether a dismissal existed, and whether the dismissal was justified.
The Commission focused its review on the method of calculating the number of employees, the legal meaning of a notice of dismissal given in advance, and whether there was a violation of the written notice requirement under Article 27 of the Labor Standards Act, and fully upheld the employee’s application.
Among the many unfair dismissal cases handled by Labor Law Firm Law&, this case is one that simultaneously illustrates the issue of legal applicability to small-scale workplaces and violations of dismissal procedures.
Ⅱ. Summary of Issues
The issues in this case are: “Whether the Labor Standards Act applies to a workplace where the number of regular employees fluctuates around five, and whether an unfair dismissal is established where the employer notifies dismissal orally without providing written notice.”
Ⅲ. Gist of the Labor Relations Commission’s Decision
The panel in this case found that:
– The total cumulative number of employees used by the employer during the calculation period was 170;
– Dividing this by 31 operating days, the number of regular employees was 5.48; and
– Under Article 7-2(2)1 of the Enforcement Decree of the Labor Standards Act, the number of days on which the daily number of employees was fewer than five was less than one-half of all days in the calculation period.
In light of the above, the panel held that the employer fell within the scope of an employer to whom the Labor Standards Act applies.
In addition, the panel held that from the time the employer expressed its intention to give advance notice of dismissal to the employee on 9 August 2025, the intention to terminate the employment contract was clearly manifested externally, and therefore there existed an act of terminating the employment contract, i.e., a “dismissal.”
As for the dismissal in this case, since the employer entirely failed to fulfill the obligation to provide written notice of the reason for dismissal and the timing of dismissal as prescribed in Article 27 of the Labor Standards Act, the panel found that the procedural defect was serious and that the dismissal was unfair.
As consistently emphasized in commentaries and case law concerning Article 27 of the Labor Standards Act, the effectiveness of a dismissal arises only when it is notified in writing, and mere oral notification or reporting of loss of coverage under the four major social insurances cannot constitute a lawful dismissal. This was reaffirmed in this case.
Ⅳ. Practical Points (From the Employee’s Perspective)
Employees should bear in mind that even if the workplace is small and the number of employees fluctuates, they may file an application for remedy for unfair dismissal under the Labor Standards Act if, when the number of regular employees is calculated based on the cumulative number of employees over one month and the number of operating days, the result is five or more.
Even if you hear an oral statement such as “Don’t come to work anymore,” if there was an expression of intent to give advance notice of dismissal, the existence of a dismissal may be recognized. If you then do not receive written notice thereafter, you may challenge the dismissal before the Labor Relations Commission on the ground of a procedural violation.
You should also keep as detailed a record as possible of the date you were notified of dismissal, the method of notification (phone call, text message, in-person, etc.), and the contents of the conversation, through notes, recordings, and the like, as this will be of great assistance in proving the existence and timing of the dismissal.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, a vague assertion such as “We always had fewer than five employees” is not sufficient to avoid application of the Labor Standards Act with respect to the method of calculating the number of regular employees. Employers must clearly understand that the determination is made by considering the cumulative number of employees divided by the number of operating days, as well as the ratio of days on which the daily number of employees was fewer than five.
When dismissing an employee, the employer must prepare and deliver a written document specifying in detail the reason and timing of the dismissal. If this is omitted, the employer may receive an unfair dismissal decision solely on the ground of a procedural violation, regardless of the substantive justifiability of the dismissal reason.
In particular, even in industries where staffing levels fluctuate frequently (use of daily workers, part-time workers, etc.), employers should accurately manage data on the cumulative number of employees actually used and the number of operating days, and, at the stage of considering dismissal, must consult in advance with experts such as Labor Law Firm Law& to review the method, contents, and timing of written notice.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether the number of regular employees was at least five
During the calculation period, the total cumulative number of employees used by the employer was 170. Dividing this by 31 operating days, the employer’s number of regular employees was 5.48. Under Article 7-2(2)1 of the Enforcement Decree of the Labor Standards Act, when the number of employees is identified for each day within the calculation period, the number of days that fell short of the statutory threshold for application of the Act was four, which is less than one-half of all days. Accordingly, it is reasonable to regard the employer as a business establishment to which the Act applies.
B. Whether a dismissal existed
It is reasonable to view that this case originated when the employer expressed its intention to give advance notice of dismissal to the employee on 9 August 2025. Therefore, the dismissal in this case exists.
C. Whether the dismissal was justified (reason and procedure)
Since, in this case, the employer failed to fulfill the obligation of written notice of dismissal under Article 27 of the Labor Standards Act, the dismissal constitutes an unfair dismissal. Accordingly, there is no need to further examine the substantive justifiability of the reason for dismissal in this case.
3. Gist of the Decision
A. Gist of the Labor Relations Commission’s Decision
A. Whether the number of regular employees was at least five
During the calculation period, the total cumulative number of employees used by the employer was 170. Dividing this by 31 operating days, the employer’s number of regular employees was 5.48. Under Article 7-2(2)1 of the Enforcement Decree of the Labor Standards Act, when the number of employees is identified for each day within the calculation period, the number of days that fell short of the statutory threshold for application of the Act was four, which is less than one-half of all days. Accordingly, it is reasonable to regard the employer as a business establishment to which the Act applies.
B. Whether a dismissal existed
It is reasonable to view that this case originated when the employer expressed its intention to give advance notice of dismissal to the employee on 9 August 2025. Therefore, the dismissal in this case exists.
C. Whether the dismissal was justified (reason and procedure)
Since, in this case, the employer failed to fulfill the obligation of written notice of dismissal under Article 27 of the Labor Standards Act, the dismissal constitutes an unfair dismissal. Accordingly, there is no need to further examine the substantive justifiability of the reason for dismissal in this case. /
[See More Related Decisions]
– “Unfair Dismissal Decision Concerning ‘Excessive Disciplinary Measure (Concurrent Employment·Secondhand Trading)’”
– “Unfair Dismissal Decision Concerning ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’”
– “Unfair Dismissal Decision Concerning ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Decision date: – Case result: Initial decision upheld
[Tags]
Unfair dismissal, scope of legal application (calculation of 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 ‘Resignation at Employee’s Request (Memo on Suggested Resignation)’,” in a new window.
※ You can also view the list of decisions related to the scope of legal application (calculation of five regular employees) at “List of Decisions Related to Scope of Legal Application (Calculation of Five Regular Employees).”
※ Korean version of this case: Korean article
This case is a decision in which the employee prevailed in full on the issue of “scope of legal application (calculation of five regular employees).”
Decision Committee: Busan Regional Labor Relations Commission, Case No. 2025부해757 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2025.11.14 · Result: Application fully upheld
Key issue summary:
A. Whether the number of regular employees was at least five: during the calculation period, the total cumulative number of employees used by the employer was 170. Dividing this by 31 operating days, the employer’s number of regular employees was 5.48.
1. Legal Implications
Ⅰ. Case Overview
In this case, an application for remedy was filed with the Labor Relations Commission in relation to an unfair dismissal that occurred at a workplace where the number of regular employees fluctuated around five. The Busan Regional Labor Relations Commission sequentially examined whether the Labor Standards Act applied, whether a dismissal existed, and whether the dismissal was justified.
The Commission focused its review on the method of calculating the number of employees, the legal meaning of a notice of dismissal given in advance, and whether there was a violation of the written notice requirement under Article 27 of the Labor Standards Act, and fully upheld the employee’s application.
Among the many unfair dismissal cases handled by Labor Law Firm Law&, this case is one that simultaneously illustrates the issue of legal applicability to small-scale workplaces and violations of dismissal procedures.
Ⅱ. Summary of Issues
The issues in this case are: “Whether the Labor Standards Act applies to a workplace where the number of regular employees fluctuates around five, and whether an unfair dismissal is established where the employer notifies dismissal orally without providing written notice.”
Ⅲ. Gist of the Labor Relations Commission’s Decision
The panel in this case found that:
– The total cumulative number of employees used by the employer during the calculation period was 170;
– Dividing this by 31 operating days, the number of regular employees was 5.48; and
– Under Article 7-2(2)1 of the Enforcement Decree of the Labor Standards Act, the number of days on which the daily number of employees was fewer than five was less than one-half of all days in the calculation period.
In light of the above, the panel held that the employer fell within the scope of an employer to whom the Labor Standards Act applies.
In addition, the panel held that from the time the employer expressed its intention to give advance notice of dismissal to the employee on 9 August 2025, the intention to terminate the employment contract was clearly manifested externally, and therefore there existed an act of terminating the employment contract, i.e., a “dismissal.”
As for the dismissal in this case, since the employer entirely failed to fulfill the obligation to provide written notice of the reason for dismissal and the timing of dismissal as prescribed in Article 27 of the Labor Standards Act, the panel found that the procedural defect was serious and that the dismissal was unfair.
As consistently emphasized in commentaries and case law concerning Article 27 of the Labor Standards Act, the effectiveness of a dismissal arises only when it is notified in writing, and mere oral notification or reporting of loss of coverage under the four major social insurances cannot constitute a lawful dismissal. This was reaffirmed in this case.
Ⅳ. Practical Points (From the Employee’s Perspective)
Employees should bear in mind that even if the workplace is small and the number of employees fluctuates, they may file an application for remedy for unfair dismissal under the Labor Standards Act if, when the number of regular employees is calculated based on the cumulative number of employees over one month and the number of operating days, the result is five or more.
Even if you hear an oral statement such as “Don’t come to work anymore,” if there was an expression of intent to give advance notice of dismissal, the existence of a dismissal may be recognized. If you then do not receive written notice thereafter, you may challenge the dismissal before the Labor Relations Commission on the ground of a procedural violation.
You should also keep as detailed a record as possible of the date you were notified of dismissal, the method of notification (phone call, text message, in-person, etc.), and the contents of the conversation, through notes, recordings, and the like, as this will be of great assistance in proving the existence and timing of the dismissal.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, a vague assertion such as “We always had fewer than five employees” is not sufficient to avoid application of the Labor Standards Act with respect to the method of calculating the number of regular employees. Employers must clearly understand that the determination is made by considering the cumulative number of employees divided by the number of operating days, as well as the ratio of days on which the daily number of employees was fewer than five.
When dismissing an employee, the employer must prepare and deliver a written document specifying in detail the reason and timing of the dismissal. If this is omitted, the employer may receive an unfair dismissal decision solely on the ground of a procedural violation, regardless of the substantive justifiability of the dismissal reason.
In particular, even in industries where staffing levels fluctuate frequently (use of daily workers, part-time workers, etc.), employers should accurately manage data on the cumulative number of employees actually used and the number of operating days, and, at the stage of considering dismissal, must consult in advance with experts such as Labor Law Firm Law& to review the method, contents, and timing of written notice.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether the number of regular employees was at least five
During the calculation period, the total cumulative number of employees used by the employer was 170. Dividing this by 31 operating days, the employer’s number of regular employees was 5.48. Under Article 7-2(2)1 of the Enforcement Decree of the Labor Standards Act, when the number of employees is identified for each day within the calculation period, the number of days that fell short of the statutory threshold for application of the Act was four, which is less than one-half of all days. Accordingly, it is reasonable to regard the employer as a business establishment to which the Act applies.
B. Whether a dismissal existed
It is reasonable to view that this case originated when the employer expressed its intention to give advance notice of dismissal to the employee on 9 August 2025. Therefore, the dismissal in this case exists.
C. Whether the dismissal was justified (reason and procedure)
Since, in this case, the employer failed to fulfill the obligation of written notice of dismissal under Article 27 of the Labor Standards Act, the dismissal constitutes an unfair dismissal. Accordingly, there is no need to further examine the substantive justifiability of the reason for dismissal in this case.
3. Gist of the Decision
A. Gist of the Labor Relations Commission’s Decision
A. Whether the number of regular employees was at least five
During the calculation period, the total cumulative number of employees used by the employer was 170. Dividing this by 31 operating days, the employer’s number of regular employees was 5.48. Under Article 7-2(2)1 of the Enforcement Decree of the Labor Standards Act, when the number of employees is identified for each day within the calculation period, the number of days that fell short of the statutory threshold for application of the Act was four, which is less than one-half of all days. Accordingly, it is reasonable to regard the employer as a business establishment to which the Act applies.
B. Whether a dismissal existed
It is reasonable to view that this case originated when the employer expressed its intention to give advance notice of dismissal to the employee on 9 August 2025. Therefore, the dismissal in this case exists.
C. Whether the dismissal was justified (reason and procedure)
Since, in this case, the employer failed to fulfill the obligation of written notice of dismissal under Article 27 of the Labor Standards Act, the dismissal constitutes an unfair dismissal. Accordingly, there is no need to further examine the substantive justifiability of the reason for dismissal in this case. /
[See More Related Decisions]
– “Unfair Dismissal Decision Concerning ‘Excessive Disciplinary Measure (Concurrent Employment·Secondhand Trading)’”
– “Unfair Dismissal Decision Concerning ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’”
– “Unfair Dismissal Decision Concerning ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Decision date: – Case result: Initial decision upheld
[Tags]
Unfair dismissal, scope of legal application (calculation of 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 ‘Resignation at Employee’s Request (Memo on Suggested Resignation)’,” in a new window.
※ You can also view the list of decisions related to the scope of legal application (calculation of five regular employees) at “List of Decisions Related to Scope of Legal Application (Calculation of Five Regular Employees).”
※ Korean version of this case: Korean article
