[Case Information] This case is a decision that was procedurally dismissed on the issue of “restriction on legal application (fewer than five regular employees).” Decision Committee: Jeonnam Regional Labor Relations Commission 2026Buhae477 ○ ○ ○ Application for Remedy for Unfair Dismissal 2026-06-29 · Case result: Dismissed Summary of key issue: As the number of regular employees employed during the one-month period prior to the date on which the grounds for legal application arose at the workplace (5 May 2026), i.e., from 6 April 2026 to 5 May 2026, was fewer than five, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act. Accordingly, it was held that the case did not fall within the remedial jurisdiction of the Labor Relations Commission. 1. Legal Implications Ⅰ. Case Overview In this case, the employee claimed unfair dismissal and filed an application for remedy with the Labor Relations Commission. However, the case was dismissed because the key issue was whether the number of regular employees at the workplace was fewer than five. The Jeonnam Regional Labor Relations Commission examined the number of regular employees during the one-month period prior to 5 May 2026, the date on which the grounds for legal application arose, in order to determine whether the workplace fell within the scope of the unfair dismissal remedy procedure under Article 28 of the Labor Standards Act. As a rule, the Labor Relations Commission’s procedure for remedies against unfair dismissal applies only to workplaces that regularly employ five or more employees. Labor Law Firm Law& also explains during consultations that it is very important to first confirm whether this requirement is met. Ⅱ. Summary of Issues The issue in this case was whether an application for remedy for unfair dismissal under Article 28 of the Labor Standards Act is possible “where an employee has been dismissed at a workplace, but the number of employees regularly employed during the one-month period prior to the date on which the grounds for legal application arose is fewer than five.” Ⅲ. Summary of the Labor Relations Commission’s Decision The panel in this case found that: – The number of regular employees, calculated by dividing the total number of employee-days during the one-month period from 6 April 2026 to 5 May 2026 (the one month prior to 5 May 2026, the date on which the grounds for legal application arose) by the number of operating days, was fewer than five; – Under Article 11 of the Labor Standards Act and Article 7-2 of its Enforcement Decree, workplaces with fewer than five regular employees are not subject to the provisions on restrictions on dismissal and remedies for unfair dismissal; and – There were no special circumstances identified that would justify viewing the result of the calculation of the number of regular employees differently. In light of the above, the panel held that this dismissal did not occur at a “workplace to which the Act applies” that would be subject to the unfair dismissal remedy under Article 28 of the Labor Standards Act, and therefore could not be the subject of remedial jurisdiction by the Labor Relations Commission. Ⅳ. Practical Points (From the Employee’s Perspective) From the employee’s perspective, even if you feel you have been unfairly dismissed, you should first check whether your workplace regularly employs five or more employees, and how that number is calculated under the method prescribed by the Enforcement Decree of the Labor Standards Act (total number of employee-days during the previous one month ÷ number of operating days). If the workplace has fewer than five regular employees, an application for remedy for unfair dismissal to the Labor Relations Commission may be dismissed, so it is important to consider a strategy that includes other legal avenues, such as civil litigation or claims for wages and severance pay. In addition, when calculating the number of regular employees, part-time employees, fixed-term employees, and daily employees are, in principle, included, whereas dispatched workers are excluded. Because the detailed criteria are complex, if there is a difference in perception between the employer and the employee regarding the actual headcount, it is advisable to organize supporting materials together with an expert such as a labor attorney. Ⅴ. Practical Points (From the Employer/Company’s Perspective) From the employer’s perspective, in the case of small workplaces where the number of regular employees fluctuates around five, it is necessary to clearly manage the total number of employee-days during the “one month prior to the date on which the grounds for legal application arose” through monthly staffing records, attendance records, and payroll ledgers. Depending on whether the Labor Standards Act applies, the scope of HR and labor risks—such as unfair dismissal remedy procedures, disciplinary and dismissal requirements, and requirements for redundancy dismissals—varies significantly. Therefore, securing objective data on the number of regular employees in advance will help prevent disputes. Furthermore, even if a single business is operated as if it were multiple workplaces by dividing human and material resources or accounting, if in substance it is operated in an integrated manner under a single management entity, Supreme Court precedents treat it as a single workplace and allow aggregation of the number of regular employees. Accordingly, attempts to evade the application of the law through artificial “split operations” should be avoided. 2. Matters Decided A. Case Overview and Procedural History As the number of regular employees employed during the one-month period prior to 5 May 2026, the date on which the grounds for legal application arose at the workplace (from 6 April 2026 to 5 May 2026), was fewer than five, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act. Therefore, it was held that the case did not fall within the remedial jurisdiction of the Labor Relations Commission. 3. Summary of Decision A. Summary of the Labor Relations Commission’s Decision As the number of regular employees employed during the one-month period prior to 5 May 2026, the date on which the grounds for legal application arose at the workplace (from 6 April 2026 to 5 May 2026), was fewer than five, the workplace did not fall within the scope of application of Article 28 of the Labor Standards Act. Therefore, it was held that the case did not fall within the remedial jurisdiction of the Labor Relations Commission. / [See More Related Decisions] – “Unfair Dismissal Decision on ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’” – “Unfair Dismissal Decision on ‘Dismissal (Non-Appearance at Hearing)’” – Date of decision: – Case number: Dismissed – “Unfair Dismissal Decision on ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Date of decision: – Case number: First-instance decision upheld [Tags] Unfair dismissal, restriction on legal 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 on ‘Proof of Existence of Dismissal (Where Only the Employee’s Statement Exists)’,” in a new window. ※ A list of decisions related to restriction on legal application (fewer than five regular employees) can be viewed together at “List of Decisions Related to Restriction on Legal Application (Fewer Than Five Regular Employees).” ※ Korean version of this case: Korean article