[Case Information] This case is a decision that was concluded by dismissal on procedural grounds on the issue of “legal applicability requirements (restaurant with fewer than 5 employees).” Decision Committee: Seoul Regional Labor Relations Commission 2026Buhae1997 ○ ○ ○ Application for Remedy for Unfair Dismissal 2026-08-07 · Case result: Dismissed Key issue summary: (i) The employee did not express any particular opinion regarding the number of regular employees at the workplace being 5 or more, nor did he submit any related evidence; (ii) by contrast, according to the employer’s submitted calculation table of the number of regular employees, the business operates 7 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 with the Labor Relations Commission for a remedy on the ground of unfair dismissal. However, the application was dismissed on the issue of whether the number of regular employees at the workplace was fewer than 5. The Seoul Regional Labor Relations Commission first examined whether the business fell within the scope of application of the Labor Standards Act and the unfair dismissal remedy system, based on the employer’s submitted materials calculating the number of regular employees and employment insurance–related data. The employee did not submit any separate rebuttal or evidentiary materials regarding the assertion that the number of regular employees at the workplace was 5 or more. The employer, on the other hand, submitted materials showing that, based on the total number of persons employed over one month and the number of operating days, the number of regular employees was fewer than 5. Ⅱ. Issues The issue in this case is whether an employee can obtain a remedy for unfair dismissal through the Labor Relations Commission even when the workplace does not satisfy the requirement of being a “business with 5 or more regular employees,” which is a precondition for the unfair dismissal remedy system. More specifically, the core issues were (i) whether, in light of the employer’s calculation table of the number of regular employees and the employment insurance data, this workplace fell within the category of a business with 5 or more regular employees as defined in Article 11 of the Labor Standards Act, and (ii) upon whom and how the burden of proof regarding this point should be placed. Ⅲ. Summary of the Labor Relations Commission’s Decision The panel in this case noted that the employee had not put forward any specific arguments or evidence that the number of regular employees at the workplace was 5 or more; that, according to the employer’s calculation table, the business operated for 31 days during the one-month period, with a total of 94 persons employed over those days, resulting in an average of approximately 3.03 regular employees, which is fewer than 5; and that, even when viewed against objective data such as the acquisition and loss records of employment insurance insured status at the workplace, it was reasonable to regard the business as having fewer than 5 employees. Accordingly, the panel determined that the dismissal at issue occurred at a workplace that did not satisfy the “5 or more regular employees” requirement presupposed by the Labor Standards Act and the Labor Relations Commission’s unfair dismissal remedy system. Therefore, it held that it was proper to dismiss the application for remedy itself before reaching a substantive determination on whether the dismissal was unfair. Ⅳ. Practical Points (From the Employee’s Perspective) An employee who wishes to allege unfair dismissal and file an application for remedy with the Labor Relations Commission should first check whether his or her workplace has 5 or more regular employees. Using attendance records, payroll ledgers, records of enrollment in the four major social insurances, work schedules, etc., the employee should confirm the total number of persons employed over at least the most recent one-month period and the number of operating days, and be able to explain to the Labor Relations Commission that the number of regular employees was 5 or more. If the employer asserts that the workplace has “fewer than 5 employees” and submits calculation tables or employment insurance data to that effect, and the employee has not secured materials in advance that can rebut such evidence, the application for remedy may be dismissed before any determination is made on the legitimacy of the dismissal, as in this case. Ⅴ. Practical Points (From the Employer’s/Company’s Perspective) From the employer’s standpoint, the applicable legal norms and the scope of dispute risk differ significantly depending on whether the business is operated with 5 or more regular employees or with fewer than 5. It is therefore necessary to understand precisely the method of calculating the number of regular employees under Article 7-2 of the Enforcement Decree of the Labor Standards Act and to maintain the relevant data on an ongoing basis. In addition to managing the figure obtained by dividing the total number of persons employed during the calculation period by the number of operating days, it is helpful, in preparation for future determinations by the Labor Relations Commission or the courts, to keep track of the ratio of days on which the number of employees was 5 or more to days on which it was fewer than 5. Furthermore, even where there is in substance a single workplace, artificially separating accounting or splitting personnel so that the business appears to have fewer than 5 employees may run counter to Supreme Court precedents and the purpose of the Labor Standards Act, and should therefore be avoided. When preparing personnel measures such as redundancy dismissals or disciplinary dismissals, it is important for dispute prevention to clarify in advance whether the business falls within the scope of application of the law and to organize the related materials. (ⓒ2026 copyright. Labor Attorney Moon Young-seop, Labor Law Firm Law&. Unauthorized reproduction and redistribution are prohibited.) 2. Matters Decided A. Case Overview and Procedural History (i) The employee did not express any particular opinion regarding the number of regular employees at the workplace being 5 or more, nor did he submit any related evidence; (ii) by contrast, according to the employer’s submitted calculation table of the number of regular employees, the business operates 7 days a week and, for 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 number of persons employed over those days was 94, which, when divided by the 31 operating days, results in approximately 3.03 employees, meaning the workplace falls into the category of a business with fewer than 5 employees; (iii) even in light of the records of acquisition and loss of employment insurance insured status at the workplace, etc., it is also … 3. Gist of the Decision A. Summary of the Labor Relations Commission’s Reasoning (i) The employee did not express any particular opinion regarding the number of regular employees at the workplace being 5 or more, nor did he submit any related evidence; (ii) by contrast, according to the employer’s submitted calculation table of the number of regular employees, the business operates 7 days a week and, for 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 number of persons employed over those days was 94, which, when divided by the 31 operating days, results in approximately 3.03 employees, meaning the workplace falls into the category of a business with fewer than 5 employees; (iii) even in light of the records of acquisition and loss of employment insurance insured status at the workplace, etc., it is also … / [More Related Decisions] - ‘Disciplinary Measure Level (Violation of Standard Work Methods by Internet A/S Technician)’ Unfair Dismissal Decision - ‘Expression of Intention to Resign (Resignation Remark Made by Telephone)’ Unfair Dismissal Decision - ‘Dismissal (Non-Appearance at Hearing)’ Unfair Dismissal Decision – Date of Decision: – Case result: Dismissed [Tags] Unfair dismissal, legal applicability requirements (restaurant with fewer than 5 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 the “Unfair Dismissal Decisions” series by Labor Law Firm Law&. ※ You can view the previous article, “‘Disciplinary Measure Level (Sexual Intercourse with Colleague Without Explicit Consent)’ Unfair Dismissal Decision,” in a new window. ※ The list of decisions related to legal applicability requirements (restaurants with fewer than 5 employees) can be viewed together on the “List of Decisions Related to Legal Applicability Requirements (Restaurants with Fewer Than 5 Employees).” ※ Korean version of this case: Korean article