[Case Information] This case is a decision that was procedurally dismissed at the stage of the issue of “legal applicability requirements (restaurant with fewer than five employees).” Date of decision: 2026-08-07 · Labor Relations Commission: Seoul Regional Labor Relations Commission · Case No.: 2026부해1997 Key issue summary: (i) The employee did not express any particular opinion that the number of regular employees at the workplace was five or more, nor did he submit any related evidence; (ii) on the other hand, according to the employer’s calculation table of the number of regular employees, the business was operated seven days a week and, for the one-month period prior to the date on which the grounds for calculation arose (2026. …). 1. Legal Implications Ⅰ. Case Overview In this case, the employee filed an application for remedy with the Seoul Regional Labor Relations Commission, claiming that his dismissal constituted unfair dismissal. Before examining the lawfulness of the dismissal, however, the preliminary issue was whether the number of regular employees at the workplace was fewer than five. The Labor Relations Commission reviewed whether this business fell within the scope of the unfair dismissal remedy system under the Labor Standards Act, based on the employer’s materials calculating the number of regular employees and the employment insurance insured persons’ records. Ⅱ. Summary of Issues The issue in this case is whether the unfair dismissal remedy system under the Labor Standards Act applies “where the number of regular employees at the workplace is fewer than five.” The panel in this case noted that, according to the employer’s calculation table of the number of regular employees, during the one-month period prior to the date on which the grounds for application of the law arose (2026.1.1–2026.1.31), the business was operated for 31 days, and the total cumulative number of employees used during that period was 94. Dividing this by the number of operating days yields approximately 3.03 employees, which is fewer than five. In addition, even from the employment insurance records of acquisition and loss of insured status, no data could be found indicating that the number of regular employees was five or more. Taking into account that the employee neither asserted that the number of regular employees was five or more nor submitted any evidence to support such a claim, the Commission concluded that this business did not fall under a “business or workplace that regularly employs five or more employees” as defined in Article 11 of the Labor Standards Act. The dismissal in this case therefore did not satisfy the requirement of being a “workplace to which the Act applies,” which is a precondition for filing an application for remedy for unfair dismissal under Article 28 of the Labor Standards Act. Accordingly, the Commission held that the dismissal could not be the subject of the unfair dismissal remedy procedure before the Labor Relations Commission. Ⅲ. Summary of the Labor Relations Commission’s Reasoning The Labor Relations Commission, first, took into account that the employee did not dispute that the number of regular employees was five or more and submitted no evidence to prove it. Second, it found that, when the number of regular employees was calculated in accordance with the method prescribed in Article 7-2 of the Enforcement Decree, the result was approximately 3.03 employees, which is fewer than five. Third, it noted that, even in light of objective data such as employment insurance insured persons’ records, there was no basis to regard the workplace as one with five or more employees. On this basis, the Commission held that the workplace did not constitute a business to which the Labor Standards Act applies, which is a prerequisite for an application for remedy for unfair dismissal. Ⅳ. Practical Points (From the Employee’s Perspective) When preparing to file an application for remedy for unfair dismissal, an employee should first confirm whether his or her workplace qualifies as one that “regularly employs five or more employees,” in addition to examining the justifiability of the dismissal itself. In particular, in the case of small-scale workplaces, it is important to secure materials that will allow the employee to prove the actual number of employees used, such as records of attendance, payroll ledgers, employment contracts, and employment insurance and four major social insurance enrollment records. Ⅴ. Practical Points (From the Employer/Company Perspective) From the employer’s perspective, it is necessary to have an accurate understanding of the method for calculating the number of regular employees (cumulative headcount ÷ number of operating days, the 1/2 standard for days with fewer than or at least five employees, etc.) and to manage employment contracts, attendance records, and employment insurance data in a consistent manner. However, even if the number of regular employees is fewer than five, this does not mean that the lawfulness of a dismissal is never at issue. Employers should therefore establish and maintain a basic HR and labor management system—such as clear personnel regulations, well-organized grounds for dismissal, and compliance with procedures—in advance, together with experts such as Labor Law Firm Law&. 2. Matters Determined A. Case Overview and Procedural Progress This is a case in which it was determined that, because the number of regular employees was fewer than five, the provisions of the Labor Standards Act concerning applications for remedy for unfair dismissal did not apply. 3. Gist of the Decision A. Summary of the Labor Relations Commission’s Reasoning (1) The employee did not express any particular opinion that the number of regular employees at the workplace was five or more, nor did he submit any related evidence; (2) on the other hand, according to the employer’s calculation table of the number of regular employees, the business was operated seven days a week, and during the one-month period prior to the date on which the grounds for calculation arose (2026.1.1–2026.1.31), the total number of operating days was 31 and the total cumulative number of employees used was 94. Dividing this by the 31 operating days yields approximately 3.03 employees, which corresponds to a workplace with fewer than five employees; (3) even from the records of acquisition and loss of employment insurance insured status at the workplace, the fact that the number of regular employees was five or more could not be confirmed. In light of all of the above, the Commission concluded that the number of regular employees at the workplace was fewer than five and that the workplace was therefore not subject to an application for remedy. [See More Related Decisions] - “Unfair Dismissal Decision Concerning ‘Expectation of Employment Succession (Logistics Center Competitive Bidding)’” - “Unfair Dismissal Decision Concerning ‘Excessive Disciplinary Measure (Negligent Management/Supervision)’” - “Unfair Dismissal Decision Concerning ‘Business Necessity (Reassignment of Cleaning Staff)’” [Tags] Unfair dismissal, legal applicability requirements (restaurant with fewer than five 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 one of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&. ※ You can view the previous article, “Unfair Dismissal Decision Concerning ‘Disciplinary Measure (Sexual Intercourse with Colleague Without Explicit Consent)’,” in a new window. ※ A list of decisions related to legal applicability requirements (restaurant with fewer than five employees) can be viewed together under “List of Decisions Related to Legal Applicability Requirements (Restaurant with Fewer Than Five Employees).” ※ Korean version of this case: Korean article