I work as a kitchen assistant at the cafeteria attached to a private institute, but the institute issued me a notice of dismissal due to “a lack of ability.” However, there is no specific explanation of how my job skills are lacking, and I have complained that I cannot accept the dismissal because I have been working without any problems.
The employer then said that since the cafeteria employs fewer than five workers, the Labor Standards Act does not apply, meaning I can be dismissed without justifiable reasons. Is this true? Currently, there are four workers excluding the CEO, but two weeks ago there were five workers.
In principle, the Labor Standards Act applies to all businesses or workplaces where no fewer than five workers are ordinarily employed. With respect to a business or workplace in which not more than four workers are ordinarily employed, some provisions of this Act may still apply, at least on a partial basis (Article 11 of the Labor Standards Act).
If there are no more than five ordinarily employed workers, the provision requiring 30 days’ advance notice of dismissal still applies under the Labor Standards Act. However, the provisions requiring justifiable grounds for dismissal and procedures for remedy action by the Labor Relations Commission for unfair dismissals do not apply. Therefore, relief cannot be filed for with the Labor Relations Commission regarding a claim of unfair dismissal.
The method for calculating the number of ordinarily employed workers is as follows. “Businesses or workplaces in which no fewer than five workers are ordinarily employed” means “businesses or workplaces which use five or more employees ordinarily.” In this case, “ordinarily” means “currently,” which includes both workers who work continuously and daily employed workers who were hired to meet momentary necessities.
According to Article 7-2 of the Enforcement Decree of the Labor Standards Act, the number of ordinarily employed workers is calculated by dividing the total number of employees who worked for one month before the dismissal day by the number of days during the same period (If the business is less than one month from the date of establishment, the applicable (estimated) period would be after establishment of the business).
For example, if the date of dismissal is October 1 and the number of days of operation (business) during the one month period (September 1 to September 30) before dismissal was 20 days, and the total sum of workers who worked each business day for 20 days totals 100, then the average number of workers per days is 5 (100 workers / 20 days). So, even though there were fewer than five ordinarily employed workers at the time or dismissal, the Limitations on Dismissal provision in the Labor Standards Act applies.
However, when calculating the number of workers per business day, if for half or more of the days the business had fewer than 5 workers (in the above example, 10 days or more), the provision will not be deemed applicable even if the average number of workers for each day was more than five.
Conversely, when calculating the number of workers per business day, if the business had five or more workers for more than half of the days (in the above example, there were 10 or more such business days), even though the average number of workers on each business day is less than 5, the law will be regarded as applicable to the business or workplace.