Advance Notice Pay in Workplaces with Fewer Than 5 Employees — Korea Foreign Workers' Guide

Can You Receive Advance Notice Pay Even from a Workplace with Fewer Than 5 Employees?

Have you ever been told "there's no advance notice pay because we have fewer than 5 employees"? That is incorrect. The advance notice of dismissal provisions apply regardless of workplace size.

What Is Advance Notice Pay (해고예고수당)?

Article 26 of the Labor Standards Act (근로기준법 제26조) requires that an employer who intends to dismiss a worker must give at least 30 days' advance notice. If the employer fails to give 30 days' notice, they must pay the worker at least 30 days' worth of ordinary wages (통상임금) as advance notice pay (해고예고수당).

This provision applies equally to workplaces with fewer than 5 full-time employees. Although Article 11(2) of the Labor Standards Act (제11조 제2항) excludes certain provisions from applying to workplaces with 4 or fewer employees, Article 26 (advance notice of dismissal) is not on that exclusion list. The Ministry of Employment and Labor's administrative interpretations (고용노동부 행정해석, e.g., 근로기준과-2004-01-01 and others) consistently take the same position.

Exceptions Where the Advance Notice Obligation Does Not Apply

However, the advance notice obligation is waived in the following cases (Article 26 proviso and Article 35 of the Labor Standards Act / 제26조 단서, 제35조):

1. A daily worker who has not been continuously employed for 3 months
2. A worker employed for a fixed term of 2 months or less
3. A monthly-paid worker employed for less than 6 months — (Note: this exception was deleted in 2019 and no longer applies)
4. Cases where it is impossible to continue the business due to natural disasters, wartime events (천재·사변), or other unavoidable circumstances
5. Cases where the worker intentionally caused serious disruption to the business or inflicted property damage (when the Ministry of Employment and Labor's prescribed criteria are met)

How Is 30 Days' Ordinary Wages Calculated?

The basis for advance notice pay is ordinary wages (통상임금). Ordinary wages are wages paid regularly, uniformly, and on a fixed basis; in addition to base pay, fixed allowances such as job-duty allowances and position allowances are included. Expense reimbursements such as meal allowances and transportation costs are, in principle, excluded.

For example, if your monthly ordinary wages are KRW 2,500,000 and you are dismissed without 30 days' notice, you may claim KRW 2,500,000 as advance notice pay. If partial notice was given (e.g., only 10 days' notice), you may claim only the shortfall — in this case, 20 days' worth.

Note: Your employment contract may specify terms different from the statutory minimum, but the statutory floor always applies.

What If You Did Not Receive Advance Notice Pay?

If an employer fails to pay advance notice pay, they may be subject to imprisonment of up to 2 years or a fine of up to KRW 20,000,000 under Article 110 of the Labor Standards Act (제110조). Workers can exercise their rights through the following channels:

• File a complaint with the Ministry of Employment and Labor (고용노동부 진정 접수): Submit a written complaint to the Regional Employment and Labor Office (지방고용노동청) with jurisdiction over the workplace.
• File a small-claims action (민사 소액심판 청구): If the amount is small, you may use the court's small-claims procedure.
• Use the Wage Claim Guarantee (체당금 제도): If the employer has gone bankrupt, you may recover part of the unpaid amount through the Korea Workers' Compensation & Welfare Service (근로복지공단).

Check Quickly with Bylaw (바이로)

If you need to calculate your ordinary wages or the exact amount of advance notice pay owed, use the Bylaw (바이로) salary take-home calculator at workbylaw.com to confirm your monthly ordinary wages first. You can also use the AI search feature to quickly find interpretations of dismissal-related laws applicable to your situation, and use the complaint-drafting feature to easily prepare documents for submission to the Ministry of Employment and Labor.

This article is for informational purposes only and does not constitute legal advice. For specific cases, consult a certified labor attorney (노무사) or lawyer.