[Case Information] This case is an unfair dismissal decision that was procedurally dismissed on the issue of “restriction on legal application (fewer than five regular employees).” Decision Committee: Gyeongbuk Regional Labor Relations Commission 2026Buhae733 ○ ○ ○ Application for Remedy for Unfair Dismissal 2026-09-14 · Case result: Dismissed on procedural grounds Summary of Key Issue: During the one-month period prior to the date on which the grounds for legal application arose, the employer’s average number of regular employees was 2.4, and the number of days on which fewer than five employees were employed accounted for at least one-half of all operating days. Accordingly, under Article 11 (Scope of Application) of the Labor Standards Act and Article 7 (Scope of Application) of the Enforcement Decree of the same Act, the business in question does not fall within the scope of workplaces to which Article 28 (Application for Remedy for Unfair Dismissal, etc.) of the same Act applies. 1. Legal Implications Ⅰ. Case Overview In this case, a worker filed an application with the Labor Relations Commission seeking a remedy for unfair dismissal. The application was dismissed on the ground that the key issue was whether the employer’s workplace employed fewer than five regular employees. The Gyeongbuk Regional Labor Relations Commission, based on the calculation of the number of regular employees pursuant to Article 11 of the Labor Standards Act and Article 7-2 of the Enforcement Decree, held that this workplace does not fall within the scope of the remedy system for unfair dismissal under Article 28 of the Labor Standards Act, and therefore dismissed the case. Among the various unfair dismissal cases handled by Labor Law Firm Law&, this case clearly illustrates that, before filing an application for remedy with the Labor Relations Commission, one must first confirm whether the workplace is subject to the Labor Standards Act. Ⅱ. Summary of Issues The issue in this case is whether, in a small-scale workplace where the average number of regular employees during the one-month period prior to the date on which the grounds for legal application arose is fewer than five, a worker may file an application for remedy for unfair dismissal with the Labor Relations Commission. Ⅲ. Summary of the Labor Relations Commission’s Decision The decision panel in this case comprehensively considered the following: that the average number of regular employees, calculated by dividing the total number of worker-days employed by the employer during the one-month period prior to the date on which the grounds for legal application arose by the number of operating days, was only 2.4; that, during the same period, on a daily basis, the number of days on which fewer than five employees worked accounted for at least one-half of all days; and that, under Article 11 of the Labor Standards Act and Article 7-2(2) of the Enforcement Decree, a workplace in such circumstances cannot be regarded as subject to the remedy system for unfair dismissal under Article 28 of the Labor Standards Act. As a result, the Commission held that this workplace does not fall under a business employing at least five regular employees, and therefore the worker’s application for remedy for unfair dismissal fails to meet the statutory requirements and must be dismissed. Ⅳ. Practical Points (From the Worker’s Perspective) If a worker feels that they have been unfairly dismissed, before immediately filing an application for remedy with the Labor Relations Commission, they should first confirm whether the workplace currently, or at the time of dismissal, employed at least five regular employees. The number of regular employees is calculated by including not only permanent employees but also fixed-term, part-time, and daily workers. It is determined by dividing the total number of worker-days employed over a one-month period by the number of operating days. If, during that period, the number of days on which fewer than five employees are employed accounts for at least one-half of all days, the workplace may fall outside the scope of the unfair dismissal remedy system under the Labor Standards Act. This point should be carefully noted. Even if relief through the Labor Relations Commission is difficult, other legal avenues—such as civil litigation to contest the validity of the dismissal or claims for wages and severance pay—can still be considered. It is therefore advisable to consult with a labor attorney (labor consultant) on both the availability of an application for remedy and the overall dispute resolution strategy. Ⅴ. Practical Points (From the Employer’s/Company’s Perspective) From the employer’s perspective, it is essential to understand precisely how the number of regular employees is calculated and to systematically manage personnel, payroll, and working-hours records so that the number and working patterns of all employees actually engaged—permanent, fixed-term, part-time, and daily workers—can be objectively substantiated. In particular, for small-scale workplaces where the number of regular employees fluctuates around five, it is important to clearly maintain records of daily headcount, operating days, and total worker-days. Proper documentation will help reduce unnecessary disputes before the Labor Relations Commission or courts regarding the scope of application of the Labor Standards Act. However, even if the number of regular employees is fewer than five, only the unfair dismissal remedy system under the Labor Standards Act is inapplicable; other legal responsibilities remain, such as the prohibition on abuse of termination rights under the Civil Act, obligations to pay wages and severance pay, and liability under other laws relating to discrimination, assault, etc. Accordingly, when implementing personnel measures such as dismissal or redundancy, it is still safest to ensure that basic procedures and substantive justification are fully satisfied. 2. Matters Decided A. Case Overview and Procedural History During the one-month period prior to the date on which the grounds for legal application arose, the employer’s average number of regular employees was 2.4, and the number of days on which fewer than five employees were employed accounted for at least one-half of all days. Therefore, under Article 11 (Scope of Application) of the Labor Standards Act and Article 7 (Scope of Application) of the Enforcement Decree of the same Act, the business in question does not fall within the scope of workplaces to which Article 28 (Application for Remedy for Unfair Dismissal, etc.) of the same Act applies. 3. Summary of Decision A. Summary of the Labor Relations Commission’s Decision During the one-month period prior to the date on which the grounds for legal application arose, the employer’s average number of regular employees was 2.4, and the number of days on which fewer than five employees were employed accounted for at least one-half of all days. Therefore, under Article 11 (Scope of Application) of the Labor Standards Act and Article 7 (Scope of Application) of the Enforcement Decree of the same Act, the business in question does not fall within the scope of workplaces to which Article 28 (Application for Remedy for Unfair Dismissal, etc.) of the same Act applies. / [See More Related Decisions] - “Unfair Dismissal Decision Relating to ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’” - “Unfair Dismissal Decision Relating to ‘Expression of Intent to Resign (Oral Declaration of Resignation)’” - “Unfair Dismissal Decision Relating to ‘Disciplinary Measure Level (Workplace Bullying by Head of Finance Division)’” [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 the “Unfair Dismissal Decisions” series by Labor Law Firm Law&. ※ You can view the previous article, “Unfair Dismissal Decision Relating to ‘Expression of Intent to Resign (Oral Declaration of Resignation)’,” in a new window. ※ A list of decisions relating to restriction on legal application (fewer than five regular employees) can be found in the “List of Decisions Relating to Restriction on Legal Application (Fewer Than Five Regular Employees).” ※ Korean version of this case: Korean article