This case is an unfair dismissal decision that was procedurally dismissed on the issue of the “number of regular employees (calculated as 3.18 employees).” [Case Information] This case was concluded by a procedural dismissal on the issue of “number of regular employees (calculated as 3.18 employees).” Decision Committee: Incheon Regional Labor Relations Commission 2026Buhae653 ○ ○ ○ Application for Remedy for Unfair Dismissal 2026-07-29 · Case result: Dismissed Key Issue Summary: During the period for calculating the number of regular employees at the workplace (31 days from 26 March to 25 April 2026), there were 22 operating days and a total headcount of 70, resulting in 3.18 regular employees. There was no day on which 5 or more employees were employed. 1. Legal Implications Ⅰ. Case Overview This unfair dismissal case was filed with the Incheon Regional Labor Relations Commission, and the key premise was whether the workplace constituted a “business or workplace regularly employing five or more employees” under the Labor Standards Act. The Labor Relations Commission first calculated the number of regular employees as 3.18 based on the total headcount and the number of operating days during the calculation period, and then examined whether Articles 23 and 28 of the Labor Standards Act applied. The issue in this case was whether there is any remedial interest in an application for remedy for unfair dismissal filed in respect of a workplace where the number of regular employees is calculated as fewer than five. The panel in this case regarded the period for calculating the number of regular employees as one month prior to the date on which the grounds for application of the law (such as dismissal) arose (26 March to 25 April 2026). It found that the number of operating days during this period was 22, and the total headcount was 70; that the number of regular employees calculated by dividing these figures was only 3.18; and that, even when looking at the daily number of employees, there was not a single day on which 5 or more employees were employed. Accordingly, the panel held that this workplace did not fall under a “business or workplace regularly employing five or more employees” as defined in Article 7-2 of the Enforcement Decree of the Labor Standards Act. The dismissal in this case was therefore deemed to have occurred at a workplace to which neither the restriction on dismissal without just cause under Article 23(1) of the Labor Standards Act nor the system of application for remedy for unfair dismissal under Article 28 applies, and it was held that the case did not fall within the scope of the Labor Relations Commission’s unfair dismissal remedy procedure. Ⅱ. Summary of Issues The issue in this case is whether the statutory unfair dismissal remedy system under the Labor Standards Act applies where, based on the total headcount and number of operating days during the one-month period prior to the occurrence of the grounds for application of the law, the number of regular employees is fewer than five and there is no day on which 5 or more employees were employed. Ⅲ. Summary of the Labor Relations Commission’s Reasoning The Labor Relations Commission relied on the following grounds: first, pursuant to Article 7-2 of the Enforcement Decree of the Labor Standards Act, the number of regular employees is calculated by “dividing the total headcount of employees used during the relevant one-month period by the number of operating days during the same period,” which yielded 3.18 employees; second, even when examining the daily number of employees during the calculation period, there was no day on which the number reached 5 or more, so the proviso that “if the number of days with fewer than five employees is less than one-half of the total number of days, the workplace is deemed to fall within the scope of application of the Act” did not apply; and third, under the structure of Article 11 of the Labor Standards Act and Annex Table 1 of the Enforcement Decree, the restriction on dismissal (Article 23(1)) and the application for remedy for unfair dismissal (Article 28) apply only to workplaces regularly employing five or more employees. As a result, because the employer fell under a workplace regularly employing fewer than five employees, Articles 23(1) and 28 of the Labor Standards Act did not apply, and the application for remedy for unfair dismissal was deemed not to satisfy the statutory requirements and therefore had to be dismissed. Ⅳ. Practical Points (From the Employee’s Perspective) Even if an employee feels that they have been unfairly dismissed, they must first accurately confirm whether their workplace is one “regularly employing five or more employees,” based on the total number of employees including daily workers and part-time workers. While dispatched, subcontracted, or outsourced workers are excluded from the calculation of the number of regular employees, fixed-term workers, part-time workers, and foreign workers are included. Therefore, it is advisable to carefully examine, with the assistance of experts such as Labor Law Firm Law&, whether the actual staffing level reaches five or more. In addition, the fact that a workplace regularly employs fewer than five employees does not mean that all legal protections disappear. Other possible violations, such as failure to give advance notice of dismissal, unpaid wages, violations of the Minimum Wage Act, and issues relating to the four major social insurances, should be reviewed separately. Ⅴ. Practical Points (From the Employer’s/Company’s Perspective) From the employer’s perspective, it is important to objectively calculate the number of regular employees in accordance with the method set out in Article 7-2 of the Enforcement Decree of the Labor Standards Act before any dispute over unfair dismissal or redundancy dismissal arises. In particular, if records of total headcount, operating days, and daily number of employees are not accurately maintained, the employer may be placed at a disadvantage later before the Labor Relations Commission or the courts in proving whether the workplace “regularly employs five or more employees.” Employers should therefore systematically manage basic records such as attendance sheets, employment contracts, and payroll ledgers. Furthermore, even at workplaces regularly employing fewer than five employees, the possibility of disputes surrounding dismissal always exists. Employers should therefore establish basic HR and labor management processes, such as written notification of dismissal reasons, prior warnings, and disciplinary procedures, and, where necessary, consult on an ongoing basis with experts such as Labor Law Firm Law&. 2. Matters Determined a. Case Overview and Procedural Progress During the period for calculating the number of regular employees at the workplace (31 days from 26 March to 25 April 2026), there were 22 operating days and a total headcount of 70, resulting in 3.18 regular employees. There was no day on which 5 or more employees were employed. As the workplace does not appear to be one regularly employing five or more employees under Article 7-2 of the Enforcement Decree of the Labor Standards Act, Articles 23(1) and 28 of the Labor Standards Act do not apply to the employer pursuant to Annex Table 1 of the Enforcement Decree of the Labor Standards Act. 3. Summary of the Decision a. Summary of the Labor Relations Commission’s Reasoning During the period for calculating the number of regular employees at the workplace (31 days from 26 March to 25 April 2026), there were 22 operating days and a total headcount of 70, resulting in 3.18 regular employees. There was no day on which 5 or more employees were employed. As the workplace does not appear to be one regularly employing five or more employees under Article 7-2 of the Enforcement Decree of the Labor Standards Act, Articles 23(1) and 28 of the Labor Standards Act do not apply to the employer pursuant to Annex Table 1 of the Enforcement Decree of the Labor Standards Act. / [See More Related Decisions] - “Unfair Dismissal Decision Concerning ‘Failure to Submit Reinstatement Application (Long-Term Sick Leave)’” - “Unfair Dismissal Decision Concerning ‘Existence of Dismissal (Request for Resignation · Expression of Intent to Resign)’” - “Unfair Dismissal Decision Concerning ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’” [Tags] Unfair dismissal, number of regular employees (calculated as 3.18 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. ※ The previous article, “Unfair Dismissal Decision Concerning ‘Failure to Submit Reinstatement Application (Long-Term Sick Leave)’,” can be viewed in a new window. ※ The list of decisions related to the number of regular employees (calculated as 3.18 employees) can be viewed together at “List of Decisions Related to Number of Regular Employees (Calculated as 3.18 Employees).” ※ Korean version of this case: Korean article