James Korexenos v Security in Depth Pty Ltd
[2025] FWC 1777
•24 JUNE 2025
| [2025] FWC 1777 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James Korexenos
v
Security In Depth Pty Ltd
(U2025/4163)
| COMMISSIONER HUNT | BRISBANE, 24 JUNE 2025 |
Application for an unfair dismissal remedy – Name change Order issued in relation to Respondent – Reasons for decision
On 5 April 2025, Mr James Korexenos made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment and that the dismissal was harsh, unjust or unreasonable. The Respondent named in the application was Aphore Pty Ltd (Aphore).
On 20 June 2025, I issued an Order [PR788410] under s.586(a) of the Act, amending the name of the Respondent in Mr Korexenos’ application from “Aphore Pty Ltd” to “Security in Depth Pty Ltd”. My reasons for making the Order are set out below.
Background and procedural history
One week after making his application to the Commission, on 12 April 2025, Mr Korexenos sent the following correspondence to the Commission:
“Hi,
I just figured out the case should be against Security in Depth rather than Aphore. The company rebranded from Security in Depth to Aphore on March 1st 2025.
Turns out Aphore has a new ABN but contracts and payslips are with Security in Depth as I have just realised. It was communicated to me Aphore was just being rebranded and now see it is under a different ABN.
Is it possible to reissue the case under “Security in Depth”
ABN: 58 149 726 107”
This correspondence was served on Mr Michael Connory, Chief Executive Officer of Security in Depth Pty Ltd (Security in Depth) on 14 April 2025. The “Respondent” (at that stage, Aphore) was requested to provide a response by 16 April 2025 advising whether it consented to the name of the Respondent being amended from Aphore to Security in Depth.
On 15 April 2025, Mr Connory filed by email, from an ‘Aphore’ email address, a Form F3 response to the unfair dismissal application. The Form F3 response was completed by Mr Connory and stated that the legal name of the employer was “Security in Depth Pty Ltd”. A jurisdictional objection was also raised on the basis that Mr Korexenos was not an employee of Aphore and was therefore not dismissed by Aphore.
The Form F3, in addition to raising a further jurisdictional objection that the dismissal was in compliance with the Small Business Fair Dismissal Code and arguing that for other reasons the application should be dismissed under s.587 of the Act, stated that the “Applicant was never a full-time employee of Aphore Pty Ltd”. However, the Form F3 did not address whether there was consent for Mr Korexenos’ name change request.
The matter was listed for a conciliation before a staff conciliator on 5 May 2025. The matter did not resolve at conciliation.
The matter was allocated to me on 10 June 2025, more than two months after the application was made. That day, I listed the matter for preliminary conference on 20 June 2025 and issued directions requiring the Respondent to advise whether it pressed its jurisdictional objection that Mr Korexenos was not an employee. The following day, Mr Korexenos sent the following response:
“My official employment contract is under Security in depth, It was communicated Security in depth rebranded to Aphore on March 1st. Plenty of times this was mentioned by Michael that this was simply a rebrand. I even transitioned to an Aphore work email and was told to refer to the company and its clients as Aphore. Thus I had Aphore on the initial application.
During the conciliation Michael then mentioned that I never worked for Aphore and that it’s a different ABN. When I found out this was the case, the member of fair works during conciliation said the settlement agreement would be under security in depth.
So Aphore and Security in Depth are different ABNs but the business is being completely operated as Aphore on surface and client level.
I hope this makes sense.”
On 13 June 2025, Mr Connory sent the following response:
“1. The Respondent maintains its jurisdictional objection
The objection is pressed solely on the basis that Mr Korexenos was never employed by Aphore Pty Ltd (ABN 45 681 120 4367). At all material times he was employed by Security in Depth Pty Ltd (ABN 57 149 726 107) under a written contract dated 20 December 2022 which expressly names “Security in Depth (Employer)” on the first page.
2. Factual foundation for the objection
Fact Evidence Written contract of employment is with Security in Depth Pty Ltd Contract signed 20 Dec 2022, p 1, clause 1.1 All wages, PAYG withholding were paid from Security in Depth Pty Ltd’s bank account ending ***267 Payroll records & bank statements Security in Depth issued every payslip and the FY 2023-25 Income Statement to Mr Korexenos under its ABN Payslips Operational control, supervision and all HR policies (Employee Handbook v3.1) were issued by Security in Depth Pty Ltd Timeline & Evidence Review, p 1 and p 9 3. Separate and distinct corporate entities
·Security in Depth Pty Ltd is a trading entity that provides cyber-security consulting and employs professional staff in Australia. This entity still exists and is transacting with organisations today.
·Aphore Pty Ltd is a holding/management company. It owns shares in several subsidiaries (excluding Security in Depth Pty Ltd in Australia) and has no payroll.
·Aphore Pty Ltd does not issue invoices for consulting services, does not hold the workers’ compensation policy covering Mr Korexenos, and has never maintained an employee file for him.
4. Consequence sought
Given that the Applicant was never an employee of Aphore Pty Ltd, the Respondent respectfully submits that the application has been commenced against the wrong legally entity and should be summarily dismissed for want of jurisdiction.
…
Yours faithfully,
Michael Connory
Chief Executive Officer
Security in Depth Pty Ltd”
Having reviewed Mr Connory’s response, my chambers sent the following correspondence to the parties:
“Dear Parties,
The Commissioner confirms receipt of the Respondent’s correspondence.
The Commissioner proposes to make an Order pursuant to s.586 of the Fair Work Act 2009 correcting the name of the Respondent as named on the Applicant’s application from “Aphore Pty Ltd” to “Security in Depth Pty Ltd”, with the consent of the Respondent.
The Respondent is requested to advise whether it consents to the making of such an Order. Should the Respondent not consent, the Commissioner will discuss the matter further with the parties at the conference on Friday, 20 June 2025.
The Respondent is requested to advise its position by no later than 4:00pm (AEST) on Tuesday, 17 June 2025.”
Mr Connory responded on 16 June 2025 [emphasis in original]:
“Dear Commissioner Hunt,
I write to confirm that Aphore Pty Ltd does not consent to any amendment of the application under Fair Work Act 2009 (Cth) s.586, and to respectfully request that the Commission dismiss the application under s.587 for the reasons set out below. For context, we refer to and attach the Respondent’s Form F3 (Employer Response), which details these jurisdictional objections and the Respondent’s position in full. In summary, the application names the wrong employer, and the proposed “correction” is not a mere misnomer but a fundamental misidentification that cannot be cured without injustice. The Respondent submits that the application should be dismissed, without the need to proceed to the conference listed for 20 June 2025, pursuant to s.587(1)(a) and/or (c) of the Act.
No Consent to Amendment under s.586
Aphore Pty Ltd does not consent to the Applicant’s proposed amendment or “correction” to the named Respondent. The Commission’s power under s.586 to allow corrections or amendments is discretionary and is generally reserved for rectifying minor technical errors or misnomers – not for substituting an entirely different respondent after the fact. In this case, the error goes to the heart of jurisdiction: the Applicant has commenced proceedings against an entity that never employed him. The Respondent opposes any attempt to invoke s.586 to cure this defect, as doing so would improperly extend the jurisdiction of the Commission to a new employer outside the 21-day filing period under s.394. We respectfully submit that the Commission ought not exercise its s.586 discretion in these circumstances.
Application Brought Against the Wrong Employer
It is a fundamental flaw in this application that Mr James Korexenos was never employed by Aphore Pty Ltd. As noted in our Form F3 response (attached), the Applicant was at no time an employee - let alone a dismissed employee—of the Respondent. The correct employer (and the entity that actually engaged Mr Korexenos) was Security in Depth Pty Ltd (“SiD”), a completely separate company. The unfair dismissal claim has therefore not been brought against the correct employer. This misidentification strikes at a jurisdictional prerequisite of any unfair dismissal claim: an applicant can only pursue such a claim against their employer (at the time of dismissal). Because Mr Korexenos has named the wrong company, the application fails to meet the basic statutory requirement of an unfair dismissal proceeding and is not made in accordance with the Act, warranting dismissal under s.587(1)(a).
Not a Misnomer – Fundamental Misidentification
The Applicant’s naming of Aphore Pty Ltd is not a mere misnomer or typo; it is a deliberate and material misidentification of the respondent. In a misnomer scenario, an amendment under s.586 might be permitted where, for example, the correct entity is apparent from the materials and only the name was mistaken in form. Here, however, the claim originally targeted the wrong legal entity altogether, which constitutes a substantive error beyond the scope of any “simple correction”. The Commission and courts have drawn a clear distinction between misnomer and misidentification: a misnomer involves correcting a trivial misdescription, whereas misidentification means the wrong party has been sued – a defect which is not cured by merely fixing the name.
The facts indicate this was no innocent mistake. Indeed, the Commission has previously refused amendments in analogous circumstances. For example, in Lili Sinden v HDR Inc t/a HDR [2018] FWC 5643, Deputy President Kovacic declined to permit a s.586 name correction where the applicant had knowingly sued the wrong entity for strategic reasons. In that case, the applicant (an experienced HR manager) named a foreign parent company instead of her actual employer, purportedly to gain a tactical advantage; the Commission found it “implausible” that such an error was accidental and refused leave to amend to the correct company. Similarly here, the misnaming of the Respondent is fundamental, not a mere slip. It would be contrary to principle to treat this as a misnomer – in truth it is a jurisdictional error that cannot be waived or “corrected” without effectively bringing a new claim against a new party out of time.
…”
The submissions continued at further great length.
Later that afternoon, my chambers sent the following correspondence to the parties, referring to the correspondence sent to the parties by the Commission on 14 April 2025, asking the Respondent to respond to Mr Korexenos’ request to amend the name of the Respondent:
“Dear Parties,
The Commissioner refers the parties to the attached correspondence from the Commission’s Unfair Dismissals Case Management team, in which the Respondent was asked to provide a response to the Applicant’s request to amend the name of the Respondent. It does not appear the Respondent responded to this request in the material subsequently filed.
The issue will be discussed at the conference on 20 June 2025, however the Commissioner’s preliminary view is that notwithstanding the Respondent’s objection, she will likely make a name change correction order following the 20 June 2025 conference.”
In response to the correspondence from my chambers, Mr Connory forwarded the Form F3 provided to the Commission on 15 April 2025. Mr Connory noted, “If you see section 2.1 and 2.4 I clearly stated that James was never a employee at Aphore and that in section 2.5 this case was vexatious in nature and should be dismissed.”
At the conference on 20 June 2025, I informed the parties that having considered the submissions of Mr Connory, I would shortly make an Order correcting the name of the Respondent and that was a decision made by me. Following the Order being made, Mr Connory requested the reasons for the decision.
Consideration
Where Mr Connory relied upon the first instance decision in Lili Sinden v HDR Inc. [2018] FWC 5643, this decision was overturned on appeal in Lili Sinden v HDR Inc.; HDR Pty Limited[2018] FWCFB 6934. The Full Bench stated the following:
“ [11] Section 586(a) of the FW Act provides that the Commission may “allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate”. The discretionary power conferred by s 586(a) is self-evidently broad, and encompasses but is not expressed as confined to the correction of mistakes. In respect of the amendment power in a previous iteration of the federal legislative scheme for industrial relations, the High Court treated it as having a wide field of operation so as to give effect to the statutory intention that proceedings should be directed to the merits and that technicalities and legal forms should not be regarded. The same approach is applicable under the FW Act having regard to the requirements in s 577(b) for the Commission to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities and in s 578(b) for the Commission in performing functions and exercising powers in relation to a matter to take into account equity, good conscience and the merits of the matter. In the context of the Commission’s unfair dismissal jurisdiction, the s 586(a) power has been used to correct the identification of a respondent employer to the extent of substituting one corporate entity for another.” [footnotes omitted]
I had regard to the extraordinarily lengthy submissions of Mr Connory on behalf of both Aphore Pty Ltd and Security in Depth Pty Ltd, requesting the Commission dismiss Mr Korexenos’ claim against Aphore Pty Ltd and render him outside of the 21-day time limit in which to bring his claim against Security in Depth Pty Ltd.
The Commission must take into account equity, good conscience and the merits of the matter, in addition to performing its functions in a manner that is quick, informal and avoids unnecessary technicalities.[1]
Mr Korexenos alerted the Commission to the correct name of his former employer one week after bringing his application and before Mr Connory even raised an objection. By requesting the name of the respondent be altered, Mr Korexenos was essentially making an application to the Commission at that time. The matter was then not allocated to a member of the Commission until 10 June 2025 to deal with the jurisdictional and substantive issues. I have promptly and efficiently dealt with the issue by making the name change order after taking into account the detailed and repetitive submission of Mr Connory on behalf of both entities.
I was satisfied that in allowing the correction to be made under s.586(a) of the Act a new application was not created or established, and Mr Korexenos was not prejudiced by having to make a fresh application which would be significantly beyond the 21-day time limit, against his true employer when regard is had to the following:
(a) Mr Korexenos alerted the Commission so promptly to the issue and requested it be amended;
(b) Aphore Pty Ltd and Security in Depth Pty Ltd are associated entities, both run by Mr Connory; and
(c) Having reviewed the eight-page termination letter from Security in Depth Pty Ltd to Mr Korexenos, there is no dispute that Mr Korexenos was dismissed by Security in Depth Pty Ltd.
I was further satisfied that there is no prejudice to Security in Depth Pty Ltd by making the name change order. I have made the name change order to ensure that the matter before the Commission can be dealt with in accordance with all of the requirements in s.577 of the Act, including that the Commission must perform its functions and exercise its powers in a manner that is fair and just.
COMMISSIONER
[1] Fair Work Act 2009 s.577(b).
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