Labor Law Q&A details

Chapter 4 Working Environment and Disciplinary Action

Calculation Method of Number of Ordinarily Employed Workers

I work as a kitchen assistant at a restaurant, but the private institute gave me a notice of dismissal because of lack of ability. However, there is no specific explanation of how my job skills are lacking, and I have complained that I cannot accept dismissal because I have been working without any problems.
Then, the employer said that since the number of workers is less than 5, the Labor Standards Act does not apply in the academy and so I can be dismissed without justifiable reasons. Is this true? Currently, the number of workers except the CEO is four, but five workers were working two weeks ago.


In principle, the Labor Standards Act applies apply to all businesses or workplaces in which not less than five workers are ordinarily employed. And with respect to a business or workplace in which not more than four workers are ordinarily employed, some provisions of this Act may apply partially (Article 11 of the Labor Standards Act).

If the number of ordinarily employed workers is not more than 5, the provision of 30 days advance notice of dismissal under the Labor Standards Act is still applied. However, the provisions requiring justifiable grounds of dismissal and the provisions of relief procedure by Labor Relations Commission for unfair dismissals do not apply. Therefore it cannot be filed as an unfair dismissal relief to the Labor Relations Commission.

The method of calculating the number of ordinarily employed workers is as follows. ‘Businesses or workplaces in which not less than five workers are ordinarily employed’ mean ‘businesses or workplaces which use five or more employees ordinarily.’ And in this case, ‘ordinarily’ means ‘state’ which includes not only workers who work continuously but also daily employed workers who were hired by the necessity of the time.

According to Article 7-2 of the Enforcement Decree of the Labor Standards Act, the number of ordinarily employed worker 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 period after the establishment of the business / estimated period).

For example, if the date of dismissal is October 1 and the number of days of operation (business) during one month period (September 1 to September 30) before dismissal was 20 days, and the total sum of number of workers who worked for each business days for 20 days is total 100, then average number of workers per days is 5 (100 workers/20 days). So, even though the number of ordinarily employed workers is less than 5 at the time or dismissal, the provision of Limitations on Dismissal of the Labor Standards Act applies.

However, when calculate the number of workers per each business day, if the number of days with less than 5 workers is more than a half (in above example, number of business day with less than 5 workers is 10 days), even though the average number of a day’s workers on business day is more than 5, it will not be regarded as the law applicable business or workplace.

Conversely, when calculate the number of workers per each business day, if the number of days with more than 5 workers is more than a half (in above example, number of business day with more than 5 workers is 10 days), even though the average number of a day’s workers on business day is less than 5, it will be regarded as the law applicable business or workplace.

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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