[Case Information] This case is a decision that was concluded by dismissal on procedural grounds on the issue of “limitation on legal application (fewer than five regular employees).” Decision Committee: Seoul Regional Labor Relations Commission 2026BuHae1947 ○ ○ ○ Application for Remedy for Unfair Dismissal 2026-08-05 · Case result: Dismissed Summary of Key Issue: During the one‑month period prior to the termination date of the employment relationship, the total number of worker‑days (cumulative headcount) used by the employer was 81 and the number of operating days was 28, so the number of regular employees was 2.89, i.e., fewer than five. There was no day within the calculation period on which the daily number of employees reached five or more. Accordingly, the employer could not be regarded as operating a business or workplace to which the provisions of Articles 23(1) and 28 of the Labor Standards Act concerning unfair dismissal apply, and under Article 60(1)6 of the Rules of the Labor Relations Commission, “where it is evident that the remedy sought cannot be realized under the law or in fact,” … 1. Legal Implications Ⅰ. Case Overview In this case, the worker claimed that his/her dismissal was unfair and filed an application for remedy with the Labor Relations Commission. Before examining the merits of the unfair dismissal claim, however, the preliminary issue was whether the workplace employed at least five regular employees. The Labor Relations Commission calculated the number of regular employees based on the number of workers used by the employer and the number of operating days during the one‑month period prior to the termination date of the employment relationship, and then reviewed whether the unfair dismissal remedy system under the Labor Standards Act was applicable. Ⅱ. Summary of Issues The issue in this case is whether the Labor Relations Commission can accept an application for remedy for unfair dismissal based on Articles 23 and 28 of the Labor Standards Act against a small business that has fewer than five regular employees during the one‑month calculation period based on the termination date of the employment relationship. Ⅲ. Summary of the Labor Relations Commission’s Reasoning The decision panel in this case proceeded on the premise that, during the one‑month period prior to the termination date of the employment relationship, the total number of worker‑days used by the employer was 81 and the number of operating days was 28, and therefore calculated the number of regular employees as 2.89. Under the Enforcement Decree of the Labor Standards Act, the number of regular employees is calculated using the formula “total worker‑days ÷ number of operating days.” On that basis, the panel found that not only was the number of regular employees fewer than five, but there was also no day within the calculation period on which the number of employees reached five or more. The panel held that the dismissal at issue could not be subject to the unfair dismissal remedy provisions of Articles 23(1) and 28 of the Labor Standards Act, because the employer did not operate a business or workplace that regularly employs five or more employees. It therefore concluded that the case falls under Article 60(1)6 of the Rules of the Labor Relations Commission, which covers “cases where it is evident that the remedy sought cannot be realized under the law or in fact,” and that the application must be dismissed. Ⅳ. Practical Points (From the Worker’s Perspective) Before asserting unfair dismissal, a worker should first confirm whether the workplace where he or she worked regularly employs at least five employees. This is particularly important where day laborers and part‑time workers are mixed, in which case it is necessary to carefully examine, based on the total worker‑days and operating days during the most recent one‑month period, how the number of regular employees is calculated and on how many days the daily number of employees reached five or more. Even if the Labor Relations Commission remedy procedure under the Labor Standards Act does not apply, there may still be room to contest the validity of the dismissal or disputes concerning wages and retirement benefits through other avenues such as civil litigation. It is therefore advisable to consult with experts such as Labor Law Firm Law& to review possible remedies from multiple angles. Ⅴ. Practical Points (From the Employer’s/Company’s Perspective) From the employer’s perspective, where the number of regular employees is fewer than five, the workplace may fall outside the direct scope of the unfair dismissal remedy procedure under the Labor Standards Act. However, this does not permit arbitrary personnel management or dismissals. In particular, employers should retain objective records of the data used to calculate the number of regular employees—such as total worker‑days, operating days, and daily employee headcount—so that, if a dispute later arises before the Labor Relations Commission or the courts regarding the size of the workplace, they can substantiate their position. In addition, from the point in time when the business grows and the number of regular employees reaches five or more, stricter regulations under the Labor Standards Act will apply, including restrictions on dismissal, requirements for collective redundancies, and obligations to provide written notice. Employers should therefore proactively prepare in advance by updating work rules and personnel regulations and ensuring the legality of dismissal procedures before that threshold is reached. (ⓒ2026 copyright. Labor Attorney Moon Young‑seop, Labor Law Firm Law&) 2. Matters Determined A. Case Overview and Procedural History During the one‑month period prior to the termination date of the employment relationship, the total number of worker‑days used by the employer was 81 and the number of operating days was 28, so the number of regular employees was 2.89, i.e., fewer than five. There was no day within the calculation period on which the daily number of employees reached five or more. Accordingly, the employer could not be regarded as operating a business or workplace to which the provisions of Articles 23(1) and 28 of the Labor Standards Act concerning unfair dismissal apply, and the case falls under Article 60(1)6 of the Rules of the Labor Relations Commission, which covers “cases where it is evident that the remedy sought cannot be realized under the law or in fact.” 3. Gist of the Decision A. Summary of the Labor Relations Commission’s Reasoning During the one‑month period prior to the termination date of the employment relationship, the total number of worker‑days used by the employer was 81 and the number of operating days was 28, so the number of regular employees was 2.89, i.e., fewer than five. There was no day within the calculation period on which the daily number of employees reached five or more. Accordingly, the employer could not be regarded as operating a business or workplace to which the provisions of Articles 23(1) and 28 of the Labor Standards Act concerning unfair dismissal apply, and the case falls under Article 60(1)6 of the Rules of the Labor Relations Commission, which covers “cases where it is evident that the remedy sought cannot be realized under the law or in fact.” / [See More Related Decisions] - “‘Non‑Formation of Hiring Commitment (Absence of Offer Letter)’ Unfair Dismissal Decision” – Date of decision: – Case result: First‑instance decision upheld - “‘Voluntary Resignation (Submission of Resignation Letter)’ Unfair Dismissal Decision” - “‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’ Unfair Dismissal Decision” [Tags] Unfair dismissal, limitation 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 the “Unfair Dismissal Decisions” series by Labor Law Firm Law&. ※ You can view the previous article, “‘Excessive Disciplinary Measure (Workplace Bullying·Unauthorized Absence During Suspension from Duty)’ Unfair Dismissal Decision,” in a new window. ※ A list of decisions related to limitation on legal application (fewer than five regular employees) can be found in the “List of Decisions Related to Limitation on Legal Application (Fewer Than Five Regular Employees).” ※ Korean version of this case: Korean article