Corporate trends / Performance record
‘Fewer Than Five Regular Employees (One Employee Enrolled in Employment Insurance)’ Unfair Dismissal Decision (Unfair Dismissal 355)
- Date2026/04/07 04:13
- Read 174
[Case Information]
This case is a decision that was procedurally dismissed at the threshold issue of “fewer than five regular employees (one employee enrolled in employment insurance).”
Decision Committee: Seoul Regional Labor Relations Commission 2025Buhae10173 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.02.20 · Case result: Dismissed on procedural grounds
Summary of key issues: ① 2025.
1. Legal Implications
Ⅰ. Case Overview
In this case, the employee filed an application with the Labor Relations Commission seeking a remedy for unfair dismissal. Before examining the merits of the dismissal, the primary issue was whether the workplace satisfied the statutory requirement regarding the number of regular employees. The Commission first reviewed the employment insurance enrollment status and the employee’s submitted table calculating the number of regular employees, in order to determine whether the workplace fell within the scope of the unfair dismissal remedy system under Article 28 of the Labor Standards Act.
Ⅱ. Summary of Issues
The key issue in this case is “whether this workplace in fact employs at least five regular employees, and therefore whether it is subject to an application for remedy for unfair dismissal under Article 28 of the Labor Standards Act.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case noted that from October to November 2025 the number of persons enrolled in employment insurance at the workplace was only one; that Kang ○○, Jeong ○○, and Deputy Manager ○, listed in the employee’s table calculating the number of regular employees, were not employees belonging to the workplace; and that there was no objective evidence that the person described as “president” actually provided labor as an employee of the workplace.
Taking into account that, once all of the persons claimed by the employee are excluded, the number of regular employees remains below five; and that the term “at least five regular employees” under the Labor Standards Act and its Enforcement Decree refers to a state in which, viewed as a whole, at least five employees are ordinarily employed despite temporary fluctuations, which this workplace did not meet,
the Commission held that it is difficult to regard the dismissal in this case as having occurred at a workplace with “at least five regular employees” to which the remedy system for unfair dismissal under Article 28 of the Labor Standards Act applies.
Ⅳ. Practical Points (From the Employee’s Perspective)
For an employee to file an application for remedy for unfair dismissal with the Labor Relations Commission, it is first necessary to confirm, using objective materials, whether the workplace employs at least five regular employees. The actual number of regular employees must be provable through documents such as the list of persons enrolled in employment insurance, a daily attendance record for one month, and employment contracts. In addition, it is necessary to separately examine whether family members, the president, outsourced workers, and subcontracted personnel are legally included as “employees.”
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, even if the workplace is a small business with fewer than five regular employees, it is important to maintain consistent records such as employment contracts, work logs, payroll ledgers, and employment insurance enrollment status so that the actual number of employees is clearly ascertainable. Furthermore, regardless of whether the statutory unfair dismissal remedy system under the Labor Standards Act applies, personnel and dismissal disputes may arise in connection with both redundancy (collective) dismissals and individual dismissals. Accordingly, personnel and labor management should be conducted so as to ensure the legitimacy of the grounds and procedures for dismissal.
2. Matters Decided
A. Case Overview and Procedural History
In light of (i) the fact that from October 2025 to November 2025 the number of persons enrolled in employment insurance at the workplace was one; (ii) the fact that Kang ○○, Jeong ○○, and Deputy Manager ○, listed in the employee’s table calculating the number of regular employees, were not employees belonging to the workplace, and that there is no evidence that the person described as president worked as part of the workplace; and (iii) the fact that, if the employer, Kang ○○, Jeong ○○, Deputy Manager ○, and the person described as president listed in the employee’s table are excluded, the number of regular employees is fewer than five, it cannot be deemed that the provisions of Article 28 of the Labor Standards Act concerning applications for remedy for unfair dismissal are applicable.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
In light of (i) the fact that from October 2025 to November 2025 the number of persons enrolled in employment insurance at the workplace was one; (ii) the fact that Kang ○○, Jeong ○○, and Deputy Manager ○, listed in the employee’s table calculating the number of regular employees, were not employees belonging to the workplace, and that there is no evidence that the person described as president worked as part of the workplace; and (iii) the fact that, if the employer, Kang ○○, Jeong ○○, Deputy Manager ○, and the person described as president listed in the employee’s table are excluded, the number of regular employees is fewer than five, it cannot be deemed that the provisions of Article 28 of the Labor Standards Act concerning applications for remedy for unfair dismissal are applicable. /
[See More Related Decisions]
- ‘Unfair Dismissal Decision Related to “Employer Status·Succession of Employment (Conversion to Apartment Self-Management)”’
- ‘Unfair Dismissal Decision Related to “Non-Formation of Hiring Commitment (Absence of Offer Letter)”’ – Date of decision: – Case number: Original decision upheld
- ‘Unfair Dismissal Decision Related to “Expression of Intent to Resign (Resignation Statement Made by Telephone)”’
[Tags]
Unfair dismissal, fewer than five regular employees (one employee enrolled in employment insurance), 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&.
※ The previous article, “‘Unfair Dismissal Decision Related to Employee Status (Unregistered Director)’,” can be viewed in a new window.
※ The list of decisions related to “fewer than five regular employees (one employee enrolled in employment insurance)” can be viewed together in the “List of Decisions Related to Fewer Than Five Regular Employees (One Employee Enrolled in Employment Insurance).”
※ Korean version of this case: Korean article
This case is a decision that was procedurally dismissed at the threshold issue of “fewer than five regular employees (one employee enrolled in employment insurance).”
Decision Committee: Seoul Regional Labor Relations Commission 2025Buhae10173 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.02.20 · Case result: Dismissed on procedural grounds
Summary of key issues: ① 2025.
1. Legal Implications
Ⅰ. Case Overview
In this case, the employee filed an application with the Labor Relations Commission seeking a remedy for unfair dismissal. Before examining the merits of the dismissal, the primary issue was whether the workplace satisfied the statutory requirement regarding the number of regular employees. The Commission first reviewed the employment insurance enrollment status and the employee’s submitted table calculating the number of regular employees, in order to determine whether the workplace fell within the scope of the unfair dismissal remedy system under Article 28 of the Labor Standards Act.
Ⅱ. Summary of Issues
The key issue in this case is “whether this workplace in fact employs at least five regular employees, and therefore whether it is subject to an application for remedy for unfair dismissal under Article 28 of the Labor Standards Act.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case noted that from October to November 2025 the number of persons enrolled in employment insurance at the workplace was only one; that Kang ○○, Jeong ○○, and Deputy Manager ○, listed in the employee’s table calculating the number of regular employees, were not employees belonging to the workplace; and that there was no objective evidence that the person described as “president” actually provided labor as an employee of the workplace.
Taking into account that, once all of the persons claimed by the employee are excluded, the number of regular employees remains below five; and that the term “at least five regular employees” under the Labor Standards Act and its Enforcement Decree refers to a state in which, viewed as a whole, at least five employees are ordinarily employed despite temporary fluctuations, which this workplace did not meet,
the Commission held that it is difficult to regard the dismissal in this case as having occurred at a workplace with “at least five regular employees” to which the remedy system for unfair dismissal under Article 28 of the Labor Standards Act applies.
Ⅳ. Practical Points (From the Employee’s Perspective)
For an employee to file an application for remedy for unfair dismissal with the Labor Relations Commission, it is first necessary to confirm, using objective materials, whether the workplace employs at least five regular employees. The actual number of regular employees must be provable through documents such as the list of persons enrolled in employment insurance, a daily attendance record for one month, and employment contracts. In addition, it is necessary to separately examine whether family members, the president, outsourced workers, and subcontracted personnel are legally included as “employees.”
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, even if the workplace is a small business with fewer than five regular employees, it is important to maintain consistent records such as employment contracts, work logs, payroll ledgers, and employment insurance enrollment status so that the actual number of employees is clearly ascertainable. Furthermore, regardless of whether the statutory unfair dismissal remedy system under the Labor Standards Act applies, personnel and dismissal disputes may arise in connection with both redundancy (collective) dismissals and individual dismissals. Accordingly, personnel and labor management should be conducted so as to ensure the legitimacy of the grounds and procedures for dismissal.
2. Matters Decided
A. Case Overview and Procedural History
In light of (i) the fact that from October 2025 to November 2025 the number of persons enrolled in employment insurance at the workplace was one; (ii) the fact that Kang ○○, Jeong ○○, and Deputy Manager ○, listed in the employee’s table calculating the number of regular employees, were not employees belonging to the workplace, and that there is no evidence that the person described as president worked as part of the workplace; and (iii) the fact that, if the employer, Kang ○○, Jeong ○○, Deputy Manager ○, and the person described as president listed in the employee’s table are excluded, the number of regular employees is fewer than five, it cannot be deemed that the provisions of Article 28 of the Labor Standards Act concerning applications for remedy for unfair dismissal are applicable.
3. Gist of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
In light of (i) the fact that from October 2025 to November 2025 the number of persons enrolled in employment insurance at the workplace was one; (ii) the fact that Kang ○○, Jeong ○○, and Deputy Manager ○, listed in the employee’s table calculating the number of regular employees, were not employees belonging to the workplace, and that there is no evidence that the person described as president worked as part of the workplace; and (iii) the fact that, if the employer, Kang ○○, Jeong ○○, Deputy Manager ○, and the person described as president listed in the employee’s table are excluded, the number of regular employees is fewer than five, it cannot be deemed that the provisions of Article 28 of the Labor Standards Act concerning applications for remedy for unfair dismissal are applicable. /
[See More Related Decisions]
- ‘Unfair Dismissal Decision Related to “Employer Status·Succession of Employment (Conversion to Apartment Self-Management)”’
- ‘Unfair Dismissal Decision Related to “Non-Formation of Hiring Commitment (Absence of Offer Letter)”’ – Date of decision: – Case number: Original decision upheld
- ‘Unfair Dismissal Decision Related to “Expression of Intent to Resign (Resignation Statement Made by Telephone)”’
[Tags]
Unfair dismissal, fewer than five regular employees (one employee enrolled in employment insurance), 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&.
※ The previous article, “‘Unfair Dismissal Decision Related to Employee Status (Unregistered Director)’,” can be viewed in a new window.
※ The list of decisions related to “fewer than five regular employees (one employee enrolled in employment insurance)” can be viewed together in the “List of Decisions Related to Fewer Than Five Regular Employees (One Employee Enrolled in Employment Insurance).”
※ Korean version of this case: Korean article
