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‘Employee Status (Owner-Drivers, Family Members, Nominee Representative)’ in Unfair Dismissal Decisions (Unfair Dismissal 192)
- Date2026/02/10 04:09
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[Case Information]
This case is a decision that was dismissed on procedural grounds in relation to the issue of “employee status (owner-drivers, family members, nominee representative).”
Decision Committee: Gyeonggi Regional Labor Relations Commission
2025Buhae3741 ○ ○ ○ Application for Remedy for Unfair Dismissal
December 15, 2025 · Case outcome: Dismissal
Summary of key issue: As it was difficult to recognize the employee status of seven owner-drivers claiming to be employees, the employer’s mother, and a person referred to as the Dongtan Representative, they were excluded from the calculation of the number of regular employees. As a result, the number of regular employees during the one month prior to the date of dismissal was four, and therefore the workplace did not fall within the scope of workplaces subject to applications for remedy for unfair dismissal.
1. Legal Implications
Ⅰ. Case Overview
In this case, after the employer dismissed a worker, an application for remedy was filed with the Labor Relations Commission, alleging that the dismissal constituted an unfair dismissal. The Commission examined whether the seven owner-drivers claimed by the applicant, the employer’s mother, and the so‑called Dongtan Representative could be recognized as employees, and, if so, whether including them would satisfy the requirement of having at least five regular employees.
The Commission ultimately denied the employee status of these individuals, found that the number of regular employees was four, and therefore rendered a decision dismissing the application on the ground that the workplace was not subject to the remedy procedure for unfair dismissal.
Ⅱ. Summary of Issues
The issue in this case is “whether individuals working in various forms—such as owner-drivers, family members, and nominal representatives—can be regarded as employees to be included in the number of regular employees, and, as a result, whether the workplace falls within the scope of workplaces subject to applications for remedy for unfair dismissal.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case held that the seven owner-drivers performing transportation work for the employer’s business, the employer’s mother, and the person referred to as the Dongtan Representative could not easily be recognized as employees under the Labor Standards Act, when comprehensively considering such factors as the existence of a relationship of direction and supervision over their work, the nature and method of payment of their remuneration, and whether they bore business risks and had independence.
Excluding those who claimed to be employees and calculating the number of regular employees in accordance with the criteria under the Enforcement Decree of the Labor Standards Act for the one month prior to the date of dismissal, the Commission found that the number of regular employees was only four and thus did not satisfy the “at least five employees on a regular basis” requirement under Article 11 of the Labor Standards Act.
The dismissal in this case was therefore found not to meet the prerequisite of being a “workplace subject to applications for remedy for unfair dismissal,” and the application was dismissed without proceeding to a determination on the merits.
[Supplementary Legal Commentary on the Commission’s Reasoning]
Employee status under the Labor Standards Act is determined not by the formal title of the contract—such as owner-driver, consignment, or subcontract—but by whether, in substance, labor was provided for the purpose of receiving wages in a subordinate relationship to the employer.
Specifically, it is necessary to comprehensively examine whether the content and manner of performing the work are determined by the employer; whether there is designation and control over working hours and workplace; whether the person can hire a third party to substitute for the work; who owns equipment, vehicles, and similar items; the nature of remuneration, including whether there is a base or fixed wage and whether withholding tax is applied; whether the person is enrolled in the four major social insurances; and the exclusivity and continuity of the relationship.
However, even where an owner-driver owns a vehicle and has registered as a business operator, there are precedents recognizing such individuals as employees where, in substance, they provide labor in a subordinate relationship to the employer for the purpose of receiving wages. Accordingly, it is important not to mechanically deny employee status solely on the basis of an owner-driver contract or business registration.
Ⅳ. Practical Points (From the Employee’s Perspective)
Workers seeking a remedy for unfair dismissal must pay close attention to whether their workplace qualifies as a “workplace with at least five employees on a regular basis” under the Labor Standards Act, as this is the starting point for administrative relief. Where individuals treated as owner-drivers, family members, or nominal representatives in fact worked in a subordinate manner under the employer’s direction and supervision, a strategy is needed to establish their employee status and thereby have the number of regular employees recognized as five or more.
To this end, it is advisable to systematically secure materials such as actual work logs, dispatch and work instruction records, pay statements and deposit records, documents on the four major social insurances and withholding tax, and company documents or text/messenger records relating to personnel and disciplinary matters. It is desirable to consult with experts such as Labor Law Firm Law& to first review your legal status (employee status) and the size of the workplace, and then prepare your response to the unfair dismissal.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, where owner-drivers, family members, or nominal representatives are utilized, it must be recognized that the practice of treating them only formally as “self‑employed” or “family workers” when they are in fact providing subordinate labor as employees can pose a significant risk in future disputes. Employers should bear in mind that employee status cannot be avoided merely by the title of the contract, and that the key criteria are the substantive direction and supervision, control over working hours and workplace, and the method of paying remuneration.
In addition, the calculation of the number of regular employees is complex. Under Article 7-2 of the Enforcement Decree of the Labor Standards Act, it is calculated by dividing the total number of employee‑days during the calculation period (usually one month) by the number of operating days, and even if the number of employees falls below five for part of the period, the workplace may still be subject to the Act if certain conditions are met. When planning personnel measures such as collective redundancies or dismissals, employers should accurately review the calculation of the number of regular employees and the determination of employee status in advance, and, where necessary, seek advice from professional institutions such as Labor Law Firm Law& to minimize the risk of disputes.
2. Matters Decided
A. Case Overview and Procedural History
As it was difficult to recognize the employee status of the seven owner-drivers claiming to be employees, the employer’s mother, and the person referred to as the Dongtan Representative, they were excluded from the calculation of the number of regular employees. As a result, the number of regular employees during the one month prior to the date of dismissal was four, and the workplace did not fall within the scope of workplaces subject to applications for remedy for unfair dismissal.
3. Summary of Decision
A. Summary of the Labor Relations Commission’s Reasoning
As it was difficult to recognize the employee status of the seven owner-drivers claiming to be employees, the employer’s mother, and the person referred to as the Dongtan Representative, they were excluded from the calculation of the number of regular employees. As a result, the number of regular employees during the one month prior to the date of dismissal was four, and the workplace did not fall within the scope of workplaces subject to applications for remedy for unfair dismissal.
[See More Related Decisions]
- “‘Probation Misclassification Dismissal (Rule Excluding Employees with at Least Two Years’ Experience from Probation)’ – Unfair Dismissal Decision”
- “‘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”
[Tags]
Unfair dismissal, employee status (owner-drivers·family members·nominee representative), 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, “‘Probation Misclassification Dismissal (Rule Excluding Employees with at Least Two Years’ Experience from Probation)’ – Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to employee status (owner-drivers·family members·nominee representative) can be viewed together in the “List of Decisions Related to Employee Status (Owner-Drivers·Family Members·Nominee Representative).”
※ Korean version of this case: Korean article
This case is a decision that was dismissed on procedural grounds in relation to the issue of “employee status (owner-drivers, family members, nominee representative).”
Decision Committee: Gyeonggi Regional Labor Relations Commission
2025Buhae3741 ○ ○ ○ Application for Remedy for Unfair Dismissal
December 15, 2025 · Case outcome: Dismissal
Summary of key issue: As it was difficult to recognize the employee status of seven owner-drivers claiming to be employees, the employer’s mother, and a person referred to as the Dongtan Representative, they were excluded from the calculation of the number of regular employees. As a result, the number of regular employees during the one month prior to the date of dismissal was four, and therefore the workplace did not fall within the scope of workplaces subject to applications for remedy for unfair dismissal.
1. Legal Implications
Ⅰ. Case Overview
In this case, after the employer dismissed a worker, an application for remedy was filed with the Labor Relations Commission, alleging that the dismissal constituted an unfair dismissal. The Commission examined whether the seven owner-drivers claimed by the applicant, the employer’s mother, and the so‑called Dongtan Representative could be recognized as employees, and, if so, whether including them would satisfy the requirement of having at least five regular employees.
The Commission ultimately denied the employee status of these individuals, found that the number of regular employees was four, and therefore rendered a decision dismissing the application on the ground that the workplace was not subject to the remedy procedure for unfair dismissal.
Ⅱ. Summary of Issues
The issue in this case is “whether individuals working in various forms—such as owner-drivers, family members, and nominal representatives—can be regarded as employees to be included in the number of regular employees, and, as a result, whether the workplace falls within the scope of workplaces subject to applications for remedy for unfair dismissal.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case held that the seven owner-drivers performing transportation work for the employer’s business, the employer’s mother, and the person referred to as the Dongtan Representative could not easily be recognized as employees under the Labor Standards Act, when comprehensively considering such factors as the existence of a relationship of direction and supervision over their work, the nature and method of payment of their remuneration, and whether they bore business risks and had independence.
Excluding those who claimed to be employees and calculating the number of regular employees in accordance with the criteria under the Enforcement Decree of the Labor Standards Act for the one month prior to the date of dismissal, the Commission found that the number of regular employees was only four and thus did not satisfy the “at least five employees on a regular basis” requirement under Article 11 of the Labor Standards Act.
The dismissal in this case was therefore found not to meet the prerequisite of being a “workplace subject to applications for remedy for unfair dismissal,” and the application was dismissed without proceeding to a determination on the merits.
[Supplementary Legal Commentary on the Commission’s Reasoning]
Employee status under the Labor Standards Act is determined not by the formal title of the contract—such as owner-driver, consignment, or subcontract—but by whether, in substance, labor was provided for the purpose of receiving wages in a subordinate relationship to the employer.
Specifically, it is necessary to comprehensively examine whether the content and manner of performing the work are determined by the employer; whether there is designation and control over working hours and workplace; whether the person can hire a third party to substitute for the work; who owns equipment, vehicles, and similar items; the nature of remuneration, including whether there is a base or fixed wage and whether withholding tax is applied; whether the person is enrolled in the four major social insurances; and the exclusivity and continuity of the relationship.
However, even where an owner-driver owns a vehicle and has registered as a business operator, there are precedents recognizing such individuals as employees where, in substance, they provide labor in a subordinate relationship to the employer for the purpose of receiving wages. Accordingly, it is important not to mechanically deny employee status solely on the basis of an owner-driver contract or business registration.
Ⅳ. Practical Points (From the Employee’s Perspective)
Workers seeking a remedy for unfair dismissal must pay close attention to whether their workplace qualifies as a “workplace with at least five employees on a regular basis” under the Labor Standards Act, as this is the starting point for administrative relief. Where individuals treated as owner-drivers, family members, or nominal representatives in fact worked in a subordinate manner under the employer’s direction and supervision, a strategy is needed to establish their employee status and thereby have the number of regular employees recognized as five or more.
To this end, it is advisable to systematically secure materials such as actual work logs, dispatch and work instruction records, pay statements and deposit records, documents on the four major social insurances and withholding tax, and company documents or text/messenger records relating to personnel and disciplinary matters. It is desirable to consult with experts such as Labor Law Firm Law& to first review your legal status (employee status) and the size of the workplace, and then prepare your response to the unfair dismissal.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, where owner-drivers, family members, or nominal representatives are utilized, it must be recognized that the practice of treating them only formally as “self‑employed” or “family workers” when they are in fact providing subordinate labor as employees can pose a significant risk in future disputes. Employers should bear in mind that employee status cannot be avoided merely by the title of the contract, and that the key criteria are the substantive direction and supervision, control over working hours and workplace, and the method of paying remuneration.
In addition, the calculation of the number of regular employees is complex. Under Article 7-2 of the Enforcement Decree of the Labor Standards Act, it is calculated by dividing the total number of employee‑days during the calculation period (usually one month) by the number of operating days, and even if the number of employees falls below five for part of the period, the workplace may still be subject to the Act if certain conditions are met. When planning personnel measures such as collective redundancies or dismissals, employers should accurately review the calculation of the number of regular employees and the determination of employee status in advance, and, where necessary, seek advice from professional institutions such as Labor Law Firm Law& to minimize the risk of disputes.
2. Matters Decided
A. Case Overview and Procedural History
As it was difficult to recognize the employee status of the seven owner-drivers claiming to be employees, the employer’s mother, and the person referred to as the Dongtan Representative, they were excluded from the calculation of the number of regular employees. As a result, the number of regular employees during the one month prior to the date of dismissal was four, and the workplace did not fall within the scope of workplaces subject to applications for remedy for unfair dismissal.
3. Summary of Decision
A. Summary of the Labor Relations Commission’s Reasoning
As it was difficult to recognize the employee status of the seven owner-drivers claiming to be employees, the employer’s mother, and the person referred to as the Dongtan Representative, they were excluded from the calculation of the number of regular employees. As a result, the number of regular employees during the one month prior to the date of dismissal was four, and the workplace did not fall within the scope of workplaces subject to applications for remedy for unfair dismissal.
[See More Related Decisions]
- “‘Probation Misclassification Dismissal (Rule Excluding Employees with at Least Two Years’ Experience from Probation)’ – Unfair Dismissal Decision”
- “‘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”
[Tags]
Unfair dismissal, employee status (owner-drivers·family members·nominee representative), 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, “‘Probation Misclassification Dismissal (Rule Excluding Employees with at Least Two Years’ Experience from Probation)’ – Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to employee status (owner-drivers·family members·nominee representative) can be viewed together in the “List of Decisions Related to Employee Status (Owner-Drivers·Family Members·Nominee Representative).”
※ Korean version of this case: Korean article
