Corporate trends / Performance record
Unfair Dismissal Decision on “Legal Applicability Requirement (Fewer Than 5 Regular Employees)” (Unfair Dismissal 150)
- Date2026/01/26 04:13
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[Case Information]
This case is a decision that was procedurally dismissed on the issue of the “legal applicability requirement (fewer than 5 regular employees).”
Decision Committee: Jeonnam Regional Labor Relations Commission 2025Buhae9062 ○ ○ ○ Application for Remedy for Unfair Dismissal
December 23, 2025 · Case Result: Dismissal (for procedural reasons)
Summary of Key Issue: The employee did not submit any objective evidence to prove that the company had at least 5 regular employees. Based on the employer’s submission on the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the Commission found that, for the one‑month calculation period immediately preceding the date on which the grounds for legal applicability arose (August 8, 2025), i.e., from July 8, 2025 to August 7, 2025, the total number of worker‑days was 61 and the number of operating days was...
1. Legal Implications
Ⅰ. Case Overview
In this case, the employee claimed that the measure taken against him/her constituted an unfair dismissal and filed an application for remedy with the Labor Relations Commission. However, the case was dismissed on the ground that the key issue was whether the company had fewer than 5 regular employees. The Labor Relations Commission first examined whether the Labor Standards Act and the unfair dismissal remedy system were applicable, based on the employer’s submission on the calculation of the number of regular employees and the employment insurance data. During this process, the employee failed to submit objective evidence to prove that the number of regular employees was 5 or more.
Ⅱ. Summary of the Issue
The issue in this case is: to what extent an employee alleging unfair dismissal must prove that the requirement of “at least 5 regular employees,” which is necessary to obtain relief from the Labor Relations Commission, has been satisfied.
Ⅲ. Summary of the Labor Relations Commission’s Decision
The panel in this case, taking into account the employer’s submission on the calculation of the number of regular employees, the company’s employment insurance status confirmed by the Commission, and the method of calculating the number of regular employees under the Enforcement Decree of the Labor Standards Act (dividing the total number of worker‑days during the one‑month period prior to the date on which the grounds for legal applicability arose by the number of operating days in the same period), found that:
For the one‑month period immediately preceding the date on which the grounds for legal applicability arose (August 8, 2025), i.e., from July 8, 2025 to August 7, 2025, the total number of worker‑days was 61 and the number of operating days during the same period was 19, so that the number of regular employees was calculated to be 3.21. The employee submitted no evidence to the contrary at all. In addition, business establishments with fewer than 5 regular employees are not subject to the provisions of the Labor Standards Act restricting dismissal or to the unfair dismissal remedy system. On this basis, the Commission determined that the company in this case was a business establishment with fewer than 5 regular employees.
The dismissal in this case was therefore found, even before examining its substantive justification, not to fall within a “business establishment subject to the law,” which is a precondition for an application for remedy for unfair dismissal. Accordingly, the Commission held that the application for remedy for unfair dismissal itself was not subject to the remedy system.
Ⅳ. Practical Points (From the Employee’s Perspective)
To apply for a remedy for unfair dismissal, an employee must not only allege the unfairness of the dismissal but also be prepared to prove that the business establishment where he or she worked had at least 5 regular employees. It is necessary to collect and preserve objective evidence indicating that there were 5 or more employees in practice, such as records of attendance, payroll ledgers, statements from co‑workers, and records of enrollment in the four major social insurances.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, the basis for calculating the number of regular employees (employee registers, work logs, payroll and employment insurance data, etc.) should be clearly organized on a regular basis, so that unnecessary disputes can be reduced if a conflict arises before the Labor Relations Commission regarding the scope of legal applicability. In particular, small‑scale businesses around the 5‑employee threshold should accurately manage the inclusion of daily and part‑time workers, the calculation period, and the number of operating days in accordance with the Labor Standards Act and relevant case law.
In this type of case, both employees and employers should, from the very first stage, proactively examine whether the legal applicability requirement of “at least 5 regular employees” is satisfied and prepare the supporting evidence, rather than focusing solely on the grounds for dismissal or the requirements for redundancy.
2. Matters Decided
a. Case Overview and Procedural Progress
The employee did not submit any objective evidence to prove that the company had at least 5 regular employees. Based on the employer’s submission on the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the Commission found that, for the one‑month calculation period immediately preceding the date on which the grounds for legal applicability arose (August 8, 2025), i.e., from July 8, 2025 to August 7, 2025, the total number of worker‑days was 61 and the number of operating days was 19, so that the number of regular employees was calculated to be 3.21. Accordingly, the company’s number of regular employees was confirmed to be fewer than 5, and thus the application for remedy for unfair dismissal was found not to fall within the scope of the remedy system.
3. Summary of the Decision
a. Summary of the Labor Relations Commission’s Reasoning
The employee did not submit any objective evidence to prove that the company had at least 5 regular employees. Based on the employer’s submission on the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the Commission found that, for the one‑month calculation period immediately preceding the date on which the grounds for legal applicability arose (August 8, 2025), i.e., from July 8, 2025 to August 7, 2025, the total number of worker‑days was 61 and the number of operating days was 19, so that the number of regular employees was calculated to be 3.21. Accordingly, the company’s number of regular employees was confirmed to be fewer than 5, and thus the application for remedy for unfair dismissal was found not to fall within the scope of the remedy system. /
[See More Related Decisions]
- “Decision on Unfair Dismissal Related to ‘Dismissal (Non‑appearance at Hearing)’” – Date of Decision: - Case Number: Dismissal
- “Decision on Unfair Dismissal Related to ‘Non‑Formation of Hiring Commitment (Absence of Offer Letter)’” – Date of Decision: - Case Number: Initial Decision Upheld
- “Decision on Unfair Dismissal Related to ‘Employee Status · Submission of Resignation Letter (Secretary‑General)’”
[Tags]
Unfair dismissal, legal applicability requirement (fewer than 5 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “Decision on Unfair Dismissal Related to ‘Extinction of Interest in Relief (Notice of Disciplinary Cancellation)’,” in a new window.
※ A list of decisions related to the legal applicability requirement (fewer than 5 regular employees) can be found under “List of Decisions Related to Legal Applicability Requirement (Fewer Than 5 Regular Employees).”
※ Korean version of this case: Korean article
This case is a decision that was procedurally dismissed on the issue of the “legal applicability requirement (fewer than 5 regular employees).”
Decision Committee: Jeonnam Regional Labor Relations Commission 2025Buhae9062 ○ ○ ○ Application for Remedy for Unfair Dismissal
December 23, 2025 · Case Result: Dismissal (for procedural reasons)
Summary of Key Issue: The employee did not submit any objective evidence to prove that the company had at least 5 regular employees. Based on the employer’s submission on the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the Commission found that, for the one‑month calculation period immediately preceding the date on which the grounds for legal applicability arose (August 8, 2025), i.e., from July 8, 2025 to August 7, 2025, the total number of worker‑days was 61 and the number of operating days was...
1. Legal Implications
Ⅰ. Case Overview
In this case, the employee claimed that the measure taken against him/her constituted an unfair dismissal and filed an application for remedy with the Labor Relations Commission. However, the case was dismissed on the ground that the key issue was whether the company had fewer than 5 regular employees. The Labor Relations Commission first examined whether the Labor Standards Act and the unfair dismissal remedy system were applicable, based on the employer’s submission on the calculation of the number of regular employees and the employment insurance data. During this process, the employee failed to submit objective evidence to prove that the number of regular employees was 5 or more.
Ⅱ. Summary of the Issue
The issue in this case is: to what extent an employee alleging unfair dismissal must prove that the requirement of “at least 5 regular employees,” which is necessary to obtain relief from the Labor Relations Commission, has been satisfied.
Ⅲ. Summary of the Labor Relations Commission’s Decision
The panel in this case, taking into account the employer’s submission on the calculation of the number of regular employees, the company’s employment insurance status confirmed by the Commission, and the method of calculating the number of regular employees under the Enforcement Decree of the Labor Standards Act (dividing the total number of worker‑days during the one‑month period prior to the date on which the grounds for legal applicability arose by the number of operating days in the same period), found that:
For the one‑month period immediately preceding the date on which the grounds for legal applicability arose (August 8, 2025), i.e., from July 8, 2025 to August 7, 2025, the total number of worker‑days was 61 and the number of operating days during the same period was 19, so that the number of regular employees was calculated to be 3.21. The employee submitted no evidence to the contrary at all. In addition, business establishments with fewer than 5 regular employees are not subject to the provisions of the Labor Standards Act restricting dismissal or to the unfair dismissal remedy system. On this basis, the Commission determined that the company in this case was a business establishment with fewer than 5 regular employees.
The dismissal in this case was therefore found, even before examining its substantive justification, not to fall within a “business establishment subject to the law,” which is a precondition for an application for remedy for unfair dismissal. Accordingly, the Commission held that the application for remedy for unfair dismissal itself was not subject to the remedy system.
Ⅳ. Practical Points (From the Employee’s Perspective)
To apply for a remedy for unfair dismissal, an employee must not only allege the unfairness of the dismissal but also be prepared to prove that the business establishment where he or she worked had at least 5 regular employees. It is necessary to collect and preserve objective evidence indicating that there were 5 or more employees in practice, such as records of attendance, payroll ledgers, statements from co‑workers, and records of enrollment in the four major social insurances.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, the basis for calculating the number of regular employees (employee registers, work logs, payroll and employment insurance data, etc.) should be clearly organized on a regular basis, so that unnecessary disputes can be reduced if a conflict arises before the Labor Relations Commission regarding the scope of legal applicability. In particular, small‑scale businesses around the 5‑employee threshold should accurately manage the inclusion of daily and part‑time workers, the calculation period, and the number of operating days in accordance with the Labor Standards Act and relevant case law.
In this type of case, both employees and employers should, from the very first stage, proactively examine whether the legal applicability requirement of “at least 5 regular employees” is satisfied and prepare the supporting evidence, rather than focusing solely on the grounds for dismissal or the requirements for redundancy.
2. Matters Decided
a. Case Overview and Procedural Progress
The employee did not submit any objective evidence to prove that the company had at least 5 regular employees. Based on the employer’s submission on the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the Commission found that, for the one‑month calculation period immediately preceding the date on which the grounds for legal applicability arose (August 8, 2025), i.e., from July 8, 2025 to August 7, 2025, the total number of worker‑days was 61 and the number of operating days was 19, so that the number of regular employees was calculated to be 3.21. Accordingly, the company’s number of regular employees was confirmed to be fewer than 5, and thus the application for remedy for unfair dismissal was found not to fall within the scope of the remedy system.
3. Summary of the Decision
a. Summary of the Labor Relations Commission’s Reasoning
The employee did not submit any objective evidence to prove that the company had at least 5 regular employees. Based on the employer’s submission on the calculation of the number of regular employees and the employment insurance status of the company confirmed by the Commission, the Commission found that, for the one‑month calculation period immediately preceding the date on which the grounds for legal applicability arose (August 8, 2025), i.e., from July 8, 2025 to August 7, 2025, the total number of worker‑days was 61 and the number of operating days was 19, so that the number of regular employees was calculated to be 3.21. Accordingly, the company’s number of regular employees was confirmed to be fewer than 5, and thus the application for remedy for unfair dismissal was found not to fall within the scope of the remedy system. /
[See More Related Decisions]
- “Decision on Unfair Dismissal Related to ‘Dismissal (Non‑appearance at Hearing)’” – Date of Decision: - Case Number: Dismissal
- “Decision on Unfair Dismissal Related to ‘Non‑Formation of Hiring Commitment (Absence of Offer Letter)’” – Date of Decision: - Case Number: Initial Decision Upheld
- “Decision on Unfair Dismissal Related to ‘Employee Status · Submission of Resignation Letter (Secretary‑General)’”
[Tags]
Unfair dismissal, legal applicability requirement (fewer than 5 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “Decision on Unfair Dismissal Related to ‘Extinction of Interest in Relief (Notice of Disciplinary Cancellation)’,” in a new window.
※ A list of decisions related to the legal applicability requirement (fewer than 5 regular employees) can be found under “List of Decisions Related to Legal Applicability Requirement (Fewer Than 5 Regular Employees).”
※ Korean version of this case: Korean article
