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‘Scope of Application (Fewer Than Five Regular Employees)’ Unfair Dismissal Decision (Unfair Dismissal 321)
- Date2026/03/27 10:22
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[Case Information]
This case is a decision that was dismissed on procedural grounds at the stage of determining the “scope of application (fewer than five regular employees).”
Decision Committee: Gyeonggi Regional Labor Relations Commission, 2025 Unfair Dismissal Relief Application No. 9372 ○ ○ ○
Unfair Dismissal Relief Application
2026.01.08 · Case outcome: Dismissed
Summary of key issue: The employer argued that, at the time the employee was working, the workplace had three regular employees including the employee, and that daily workers were hired through an employment agency only when employees took leave, etc. The payroll ledger and the statement of earned income withholding tax confirmed that only two employees other than the employee worked there, and the number of employees newly insured under employment insurance was also confirmed as two, which was consistent with the employer’s assertion. The employee claimed that the number of regular employees was six or more, but…
1. Legal Implications
Ⅰ. Case Overview
In this unfair dismissal case, an application for relief was filed with the Labor Relations Commission, but the case was dismissed because the key preliminary issue was whether the workplace had fewer than five regular employees. The Gyeonggi Regional Labor Relations Commission determined the number of regular employees based on the payroll ledger, statements of earned income withholding tax, and the status of employees newly insured under employment insurance. As a result, it found that this workplace did not fall within the category of workplaces subject to unfair dismissal relief.
Ⅱ. Summary of Issues
The issue in this case is whether “the number of employees regularly employed at the workplace where the employee claiming unfair dismissal worked was five or more, and therefore whether the workplace constitutes a ‘business to which the Labor Standards Act applies’—a prerequisite for filing an unfair dismissal relief application with the Labor Relations Commission.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case noted that the employer asserted that the number of regular employees was three, and that daily workers were hired through an employment agency only to cover vacation or other absences; that the payroll ledger and statements of earned income withholding tax showed only two employees other than the employee; and that the number of employees newly insured under employment insurance was also two, consistent with the employer’s assertion.
Although the employee stated that there were six or more regular employees, there was no objective evidence at all to support this statement. Under the Labor Standards Act and relevant case law, “five or more employees on a regular basis” refers not to temporary fluctuations but to the average number of employees regularly employed over a certain period. Daily workers may be included in the count of regularly employed workers depending on the actual pattern of use, but in this case there was insufficient evidence of such regularity.
Accordingly, the panel held that this dismissal took place at a workplace outside the scope of application of the unfair dismissal relief system under the Labor Standards Act. Therefore, before examining the merits of whether the dismissal was unfair, the application for relief had to be dismissed for failure to satisfy the filing requirements.
Ⅳ. Practical Points (From the Employee’s Perspective)
For an employee to file an unfair dismissal relief application with the Labor Relations Commission, it is first necessary to verify with objective materials whether the workplace regularly employs five or more employees. It is important to secure evidence that can prove the actual number of employees, such as records of working hours/attendance, payroll ledgers, records of enrollment in the four major social insurances, and data on the use of daily workers through employment agencies.
In particular, if the employer asserts that the workplace has “fewer than five employees,” it is difficult to overturn this with mere statements. You should therefore organize and record the number of people who worked with you before the dismissal, shift rosters, work schedules, and the actual composition of personnel including part‑time, fixed‑term, and foreign workers.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, whether the number of regular employees is fewer than five or five or more significantly affects the regulatory framework under the Labor Standards Act regarding dismissal systems, unfair dismissal relief applications, and overtime, night, and holiday work. Accordingly, HR, payroll, and four major social insurance records must be managed consistently. Daily workers, part‑time workers, and fixed‑term workers may be included in the count of regular employees depending on their actual pattern of use, so the type of employment contract, period of use, and number of working days should be clearly recorded.
Even at workplaces with fewer than five regular employees, it is advisable, when dismissing an employee, to observe minimum procedural and human‑rights standards, to provide written notice, and to clearly document the reasons for dismissal, as this will help prevent future disputes.
Labor Law Firm Law& provides tailored advice to both employees and employers on issues such as unfair dismissal, the requirements for filing relief applications with the Labor Relations Commission, and the calculation of the number of regular employees, so that legal risks can be minimized in each specific case.
2. Decision Details
A. Case Overview and Procedural History
The employer asserted that, at the time the employee was working, the workplace had three regular employees including the employee, and that daily workers were hired through an employment agency only when employees took leave, etc. The payroll ledger and the statement of earned income withholding tax confirmed that only two employees other than the employee worked there, and the number of employees newly insured under employment insurance was also confirmed as two, all of which supported the employer’s assertion. The employee claimed that the number of regular employees was six or more, but, apart from the employee’s own statement, there was no other evidence indicating that there were six or more employees. In light of this, the number of regular employees at the workplace was determined to be fewer than five. Therefore, the workplace does not fall within the scope of workplaces to which the unfair dismissal relief system applies.
3. Summary of Decision
A. Summary of the Labor Relations Commission’s Reasoning
The employer asserted that, at the time the employee was working, the workplace had three regular employees including the employee, and that daily workers were hired through an employment agency only when employees took leave, etc. The payroll ledger and the statement of earned income withholding tax confirmed that only two employees other than the employee worked there, and the number of employees newly insured under employment insurance was also confirmed as two, all of which supported the employer’s assertion. The employee claimed that the number of regular employees was six or more, but, apart from the employee’s own statement, there was no other evidence indicating that there were six or more employees. In light of this, the number of regular employees at the workplace was determined to be fewer than five. Therefore, the workplace does not fall within the scope of workplaces to which the unfair dismissal relief system applies. /
[See More Related Decisions]
- ‘Unfair Dismissal Decision Concerning Denial of Forced Resignation (Handwritten Resignation Letter · Receipt of Severance Payment)’
- ‘Unfair Dismissal Decision Concerning Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’
- ‘Unfair Dismissal Decision Concerning Expression of Intent to Resign (Resignation Remark Made Over the Phone)’
[Tags]
Unfair dismissal, scope of 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “Unfair Dismissal Decision Concerning Denial of Forced Resignation (Handwritten Resignation Letter · Receipt of Severance Payment),” in a new window.
※ A list of decisions related to the scope of application (fewer than five regular employees) can be found in the “Scope of Application (Fewer Than Five Regular Employees) Related Decisions List.”
※ Korean version of this case: Korean article
This case is a decision that was dismissed on procedural grounds at the stage of determining the “scope of application (fewer than five regular employees).”
Decision Committee: Gyeonggi Regional Labor Relations Commission, 2025 Unfair Dismissal Relief Application No. 9372 ○ ○ ○
Unfair Dismissal Relief Application
2026.01.08 · Case outcome: Dismissed
Summary of key issue: The employer argued that, at the time the employee was working, the workplace had three regular employees including the employee, and that daily workers were hired through an employment agency only when employees took leave, etc. The payroll ledger and the statement of earned income withholding tax confirmed that only two employees other than the employee worked there, and the number of employees newly insured under employment insurance was also confirmed as two, which was consistent with the employer’s assertion. The employee claimed that the number of regular employees was six or more, but…
1. Legal Implications
Ⅰ. Case Overview
In this unfair dismissal case, an application for relief was filed with the Labor Relations Commission, but the case was dismissed because the key preliminary issue was whether the workplace had fewer than five regular employees. The Gyeonggi Regional Labor Relations Commission determined the number of regular employees based on the payroll ledger, statements of earned income withholding tax, and the status of employees newly insured under employment insurance. As a result, it found that this workplace did not fall within the category of workplaces subject to unfair dismissal relief.
Ⅱ. Summary of Issues
The issue in this case is whether “the number of employees regularly employed at the workplace where the employee claiming unfair dismissal worked was five or more, and therefore whether the workplace constitutes a ‘business to which the Labor Standards Act applies’—a prerequisite for filing an unfair dismissal relief application with the Labor Relations Commission.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case noted that the employer asserted that the number of regular employees was three, and that daily workers were hired through an employment agency only to cover vacation or other absences; that the payroll ledger and statements of earned income withholding tax showed only two employees other than the employee; and that the number of employees newly insured under employment insurance was also two, consistent with the employer’s assertion.
Although the employee stated that there were six or more regular employees, there was no objective evidence at all to support this statement. Under the Labor Standards Act and relevant case law, “five or more employees on a regular basis” refers not to temporary fluctuations but to the average number of employees regularly employed over a certain period. Daily workers may be included in the count of regularly employed workers depending on the actual pattern of use, but in this case there was insufficient evidence of such regularity.
Accordingly, the panel held that this dismissal took place at a workplace outside the scope of application of the unfair dismissal relief system under the Labor Standards Act. Therefore, before examining the merits of whether the dismissal was unfair, the application for relief had to be dismissed for failure to satisfy the filing requirements.
Ⅳ. Practical Points (From the Employee’s Perspective)
For an employee to file an unfair dismissal relief application with the Labor Relations Commission, it is first necessary to verify with objective materials whether the workplace regularly employs five or more employees. It is important to secure evidence that can prove the actual number of employees, such as records of working hours/attendance, payroll ledgers, records of enrollment in the four major social insurances, and data on the use of daily workers through employment agencies.
In particular, if the employer asserts that the workplace has “fewer than five employees,” it is difficult to overturn this with mere statements. You should therefore organize and record the number of people who worked with you before the dismissal, shift rosters, work schedules, and the actual composition of personnel including part‑time, fixed‑term, and foreign workers.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, whether the number of regular employees is fewer than five or five or more significantly affects the regulatory framework under the Labor Standards Act regarding dismissal systems, unfair dismissal relief applications, and overtime, night, and holiday work. Accordingly, HR, payroll, and four major social insurance records must be managed consistently. Daily workers, part‑time workers, and fixed‑term workers may be included in the count of regular employees depending on their actual pattern of use, so the type of employment contract, period of use, and number of working days should be clearly recorded.
Even at workplaces with fewer than five regular employees, it is advisable, when dismissing an employee, to observe minimum procedural and human‑rights standards, to provide written notice, and to clearly document the reasons for dismissal, as this will help prevent future disputes.
Labor Law Firm Law& provides tailored advice to both employees and employers on issues such as unfair dismissal, the requirements for filing relief applications with the Labor Relations Commission, and the calculation of the number of regular employees, so that legal risks can be minimized in each specific case.
2. Decision Details
A. Case Overview and Procedural History
The employer asserted that, at the time the employee was working, the workplace had three regular employees including the employee, and that daily workers were hired through an employment agency only when employees took leave, etc. The payroll ledger and the statement of earned income withholding tax confirmed that only two employees other than the employee worked there, and the number of employees newly insured under employment insurance was also confirmed as two, all of which supported the employer’s assertion. The employee claimed that the number of regular employees was six or more, but, apart from the employee’s own statement, there was no other evidence indicating that there were six or more employees. In light of this, the number of regular employees at the workplace was determined to be fewer than five. Therefore, the workplace does not fall within the scope of workplaces to which the unfair dismissal relief system applies.
3. Summary of Decision
A. Summary of the Labor Relations Commission’s Reasoning
The employer asserted that, at the time the employee was working, the workplace had three regular employees including the employee, and that daily workers were hired through an employment agency only when employees took leave, etc. The payroll ledger and the statement of earned income withholding tax confirmed that only two employees other than the employee worked there, and the number of employees newly insured under employment insurance was also confirmed as two, all of which supported the employer’s assertion. The employee claimed that the number of regular employees was six or more, but, apart from the employee’s own statement, there was no other evidence indicating that there were six or more employees. In light of this, the number of regular employees at the workplace was determined to be fewer than five. Therefore, the workplace does not fall within the scope of workplaces to which the unfair dismissal relief system applies. /
[See More Related Decisions]
- ‘Unfair Dismissal Decision Concerning Denial of Forced Resignation (Handwritten Resignation Letter · Receipt of Severance Payment)’
- ‘Unfair Dismissal Decision Concerning Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’
- ‘Unfair Dismissal Decision Concerning Expression of Intent to Resign (Resignation Remark Made Over the Phone)’
[Tags]
Unfair dismissal, scope of 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “Unfair Dismissal Decision Concerning Denial of Forced Resignation (Handwritten Resignation Letter · Receipt of Severance Payment),” in a new window.
※ A list of decisions related to the scope of application (fewer than five regular employees) can be found in the “Scope of Application (Fewer Than Five Regular Employees) Related Decisions List.”
※ Korean version of this case: Korean article
