James Korexenos v Security in Depth Pty Ltd - [2025] FWC 1777

[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 1^st 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1777
Decision Date: 24 JUNE 2025

CaseChat Overview and Summary

James Korexenos lodged an unfair dismissal claim against Security in Depth Pty Ltd, originally named as Aphore Pty Ltd in his application. He sought a remedy for an alleged dismissal and argued that the dismissal was harsh, unjust, or unreasonable. The respondent, Security in Depth, argued that Mr Korexenos was never an employee of Aphore Pty Ltd and that the application was brought against the wrong entity. The Commission was required to decide whether the name of the respondent should be amended from Aphore Pty Ltd to Security in Depth Pty Ltd.

The court considered the submissions of both parties, with Security in Depth Pty Ltd objecting to the name change on the basis that it would extend the jurisdiction of the Commission to a new employer outside the 21-day filing period. The Commissioner noted that Mr Korexenos had promptly alerted the Commission to the correct name of his employer and requested the name be amended. The Commissioner also considered that Aphore Pty Ltd and Security in Depth Pty Ltd are associated entities, both run by Mr Connory, and that there is no dispute that Mr Korexenos was dismissed by Security in Depth Pty Ltd. The Commissioner 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. The Commissioner was also satisfied that there is no prejudice to Security in Depth Pty Ltd by making the name change order.

The Commissioner made an Order correcting the name of the respondent as named on the applicant’s application from “Aphore Pty Ltd” to “Security in Depth Pty Ltd”. The Commissioner found that this decision was in line with the principles set out in the Full Bench decision in Lili Sinden v HDR Inc.; HDR Pty Limited [2018] FWCFB 6934, which held that the power to correct the identification of a respondent employer is broad and can be used to substitute one corporate entity for another. The Commissioner concluded that the matter before the Commission could now 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.

Orders