Ye v Bertacco [2025] FedCFamC2G 714

Ye v Bertacco [2025] FedCFamC2G 714 | Case summary | Zoe

[5]

The applicant, Mr Ye, at all relevant times worked for the second respondent, Toto Properties Pty Ltd ('Toto'). Mr Mikus was at all relevant times the sole director of Toto. The first respondent, Mr Bertacco, was also at all relevant times engaged by Toto. In circumstances where Mr Ye no longer pressed his claim regarding the alleged termination of his employment, the question of whether Mr Ye (and Mr Bertacco) were engaged as employees or independent contractors ceased to be live issues in these proceedings, given the definition of employee in the RD Act, which is also discussed in more detail below.
Mr Ye commenced working for Toto from 3 April 2018 as a labourer/trade assistant.[1] Initially he was paid $22.50 per hour. Mr Ye ceased working for Toto in April 2019. He recommenced working for Toto in August 2019 from which time his hourly rate increased to $27.50.[2]
Toto is a small building company which undertakes residential building and renovation work.[3] Mr Mikus sometimes worked on site, and at other times, simply attended worksites as required. Over the period that Mr Ye worked with Toto, the company variously engaged between 2 and 16 workers depending on the amount of work that the company had at any particular time.
It is not in dispute that during his time working with Toto, Mr Ye was the only employee of Chinese race and ethnicity.[4] It is also not in dispute that Mr Ye largely worked with Mr Bertacco although at times, if Mr Mikus needed Mr Ye to assist him, he would attend to Mr Mikus' work and then once that was complete he would go and assist Mr Bertacco if required.
Mr Ye makes numerous allegations about Mr Bertacco's conduct towards him during his time with Toto. Mr Ye claims that Mr Bertacco engaged in objectional behaviour towards him including making racial taunts and slurs directed to him or made in his presence. Mr Ye also makes a series of allegations that Mr Bertacco engaged in other rude and objectionable behaviour towards him in the workplace and says that whilst these were not specifically racial in their terms, he says that he was targeted in this way because of his race. Mr Ye also refers to various text messages sent to him by Mr Bertacco as further examples of the racial taunts and slurs to which he says he was exposed.
Mr Ye claims that some of these racial slurs were made at the workplace, that as such, they were made otherwise than in private, and that this brings them within the operation of s 18C of the RD Act.
On 1 March 2022, Mr Ye says that there was an incident between himself and Mr Bertacco, in which Mr Ye finally retaliated, he says in response to Mr Bertacco's ongoing inappropriate behaviour.[5] It is not in dispute that later that evening, Mr Mikus sent Mr Ye a text message to have the next day off and that Mr Ye no longer worked for Toto.
Mr Ye has not had any contact with Mr Bertacco since 1 March 2022 (other than for the purposes of these proceedings). It is not in dispute that a few days after the 1 March incident, Mr Ye contacted Mr Mikus and asked him to sign a letter for Mr Ye's visa application, prepared by Mr Ye (or his migration agent) which nominated his period of employment with Toto as being from 22 August 2020 to 1 March 2022. Mr Mikus signed and returned the requested letter dated 4 March 2022.[6]
Mr Ye subsequently made an application for workers' compensation which was ultimately accepted by Toto's insurer on 25 August 2022.[7]

[12]

In his reply affidavit, Mr Ye further said at paragraph 10:
1. ... I did occasionally make mistakes at work, as all employees did. Each time I made a mistake, Lliam (and sometimes Peter) would yell at me, have an outburst and/or bring it up again and again in the weeks or months after. ...
In the context of this very general evidence in chief, when asked about Mr Mikus' conduct towards him during his time at Toto, Mr Ye raised a range of other significantly more specific complaints about Mr Mikus's conduct towards him, none of which were mentioned specifically in Mr Ye's affidavit material.[12] This included allegations that Mr Mikus screamed at Mr Ye.
Similarly, whilst it is clear that Mr Mikus as the owner and director of Toto was in charge of the second respondent, Mr Ye refused to acknowledge this and at one point suggested that to him it appeared that Mr Mikus reported to Mr Bertacco on site.
I found Mr Ye to answer questions put to him in ways which he believed were consistent with and supported the narrative he sought to project before the court. Having regard to the totality of the evidence, I formed the view that Mr Ye's evidence was not credible and that he embellished his claims in a manner that he considered would support his claims.
Mr Bertacco represented himself and gave evidence and was subject to cross examination. He came across as a genuine, if unsophisticated, person. He acknowledged that his language, and that of others, on a building site was at times 'rough' and that he regularly swore both at work and in his life generally, and that he was blunt and to the point. He conceded that he engaged in jokes and banter with the applicant more so than he did with other workers on site. He maintained that this was because he believed that he and Mr Ye were 'friends' outside of work as well as at work.
His evidence however, painted a picture of a person who was a bit of a larrikin and a joker. For example, he gave evidence that he did joke around with Mr Mikus on at least one occasion where he jumped out from behind something and gave Mr Mikus a 'scare' as a joke. This is dealt with further below as it is one of the allegations made against Mr Bertacco by the applicant.
However, Mr Bertacco also gave evidence, which I accept, that he took Mr Ye under his wing and tried to support him in learning what was required on a construction site. Mr Bertacco's evidence, which I accept, is that he genuinely felt that he and Mr Ye were friends and this was why he perhaps engaged in more 'banter' with him than he would have with other workers. Mr Bertacco points to the fact that their friendship extended beyond the workplace, including outings with his son and taking Mr Ye to his mother's home, as well as the extent of the text message exchanges which included an exchange of jokes and banter from both himself and from Mr Ye.
Mr Bertacco also gave evidence that he does not hold racist attitudes towards Chinese people specifically or Asian people more generally, or indeed any other racial group. He gave evidence that he has provided his time and effort in Cambodia for a charity as an example of his lack of racist attitudes. Whilst I accept this evidence, I note that it is possible for a person not to hold overtly racist views but to engage in conduct which by its nature is inconsistent with s 9 and possibly s 18C of the RD Act if it has the necessary effect, irrespective of its intent.
Mr Mikus also gave evidence in his capacity as sole director and managing director of Toto. He too gave evidence in an open and frank manner and denied that he has ever acted in a manner towards Mr Ye which could be construed as a breach of the RD Act. He gave evidence about having come to Australia as an international student and then subsequently starting his construction business. He gave evidence that he felt a sense of connection with Mr Ye who also had come to Australia as an international student and wanted to give him an opportunity even though Mr Ye had no experience in the building industry.
Notwithstanding that the applicant had no prior experience working in the construction industry, Mr Mikus gave the applicant a job and continued to have him work on his projects over a period of more than four years. I accept that there may have been occasions when Mr Mikus expressed frustration if the applicant did not complete a task in the expected time frame or to the requisite standard. However, that does not equate to singling the applicant out for such treatment.
Having had the benefit of observing each of the witnesses, to the extent that there was a difference between the evidence given by Mr Ye on the one hand and Mr Bertacco or Mr Mikus on the other, I prefer the evidence of Mr Bertacco and/or Mr Mikus.

[19]

In addition, Mr Mikus gave evidence that he is married to a person of Chinese ethnicity and his children share that ethnicity, and that he would not tolerate any racially inappropriate comments made against any person, but particularly someone of Chinese ethnicity.
In relation to the specific matters raised by Mr Ye against him, Mr Mikus denies that he yelled at Mr Ye as alleged. He does say that there was one incident where Mr Ye did not follow his instructions about delivering some material to the site and he was clearly angry but was not yelling and that his behaviour towards the applicant was no different to how he would behave in any similar circumstances to any other contractor who had not followed instructions irrespective of their race or ethnic origin.
Mr Mikus also gave evidence that at no stage did he receive any complaints from customers about the way that Mr Bertacco and Mr Ye worked together. On the contrary, he said that he received a compliment from one particular client who was very complementary about the way that Mr Bertacco was explaining things to Mr Ye. This was in the context of work being performed at a home renovation during the COVID lock downs when the clients were both working from home and were therefore able to observe the interactions between Mr Bertacco and Mr Ye.[27]
It is common ground that Mr Ye was not provided with an employment contract and nor were there any formal written policies and procedures in place. Given the definition of 'employment' for the purposes of the RD Act and the fact that it extends to a person who performs work under a contract for services, as well as under an employment Act, it was agreed that the nature of the applicant's engagement ceased to be an issue requiring determination. Similarly, in circumstances where the applicant withdrew his claim that his employment was terminated due to his race, the nature of the applicant's engagement, ultimately, did not require judicial determination.
Mr Ye says he completed his Certificate III in Carpentry on 6 August 2018 and that between 6 August 2018 and 5 April 2019, he worked on average 40 hours per week.[28]
Mr Ye says that when he commenced working, both Mr Bertacco and Mr Mikus worked together on the worksites, but over time, Mr Mikus only came to the worksite if there was something specific he needed to do and he generally worked with Mr Bertacco.
Mr Bertacco says that as the applicant was a labourer, when they worked together on a project, he would let the applicant know what needed to be done.
Mr Mikus said that the applicant's main duties were 'assisting the site manager, picking up materials, delivering those materials onsite, assisting generally with carpentry work, site cleaning and similar duties.' [29] He said that when there was work available at a particular project, the applicant would ordinarily work from 7am to 3.30pm each day until the project was completed. Once a project was completed, if there was another project that required his services, the applicant would be offered further work. Whether this was immediately or whether there was a break would depend on what work was available. This is consistent with the evidence given by Mr Bertacco about how Mr Mikus allocated work to workers on Toto sites.
It is common ground that Mr Mikus accommodated Mr Ye's desire to have time off to engage in his other activities. For example, there were times when he did not work on Thursdays as he had Jiu Jitsu lessons.[30]

[20]

As stated, at the heart of Mr Ye's complaint is that, although he did try and get along with Mr Bertacco, he says that he found Mr Bertacco to be quite angry and moody and Mr Ye says that Mr Bertacco subjected him to a range of inappropriate behaviour, he says based on his race.
Mr Bertacco denies this and says that after a short period of working together, he and Mr Ye developed a friendship. In particular, Mr Bertacco says that it became apparent to him that Mr Ye did not have a large support network around him and Mr Bertacco began to invite him to various activities outside of work so that Mr Ye would not be as lonely.
Mr Ye agrees that after some months of working together, Mr Bertacco started inviting the applicant to 'hang out' outside of work and spend time with him and his son, but says he only went along, as he felt pressure to do so.[31]
It is common ground that Mr Ye went roller skating, to various outings, including to Mr Bertacco's home both with Mr Bertacco and his son. Mr Ye says at times, he told Mr Bertacco that he didn't want to go and then a few hours later, he would receive a call from Mr Bertacco's son asking him to go and so he did.[32]
I find Mr Ye's evidence in this regard to be unconvincing and prefer the evidence of Mr Bertacco. The contemporaneous communications by text message between Mr Bertacco and Mr Ye are consistent with Mr Bertacco's version of events, namely that a friendship was forged between the two men. In addition to work related communications, there is evidence that both men engaged in light-hearted banter, including some communications from each of them that objectively speaking might be considered to be inappropriate, but for the context in which it occurred.
Mr Ye himself acknowledges that at times he felt like he and Mr Bertacco were friends. Mr Ye acknowledges that in about December 2018 when Mr Bertacco broke his hip in a work related injury, Mr Ye visited him in hospital. After this injury, Mr Bertacco also asked Mr Ye to come and assist with various things around his house and Mr Ye did so on about 20 occasions.[33] In his affidavit, Mr Ye says that he only did this in the hope that Mr Bertacco would stop being aggressive and angry towards him. I do not accept this evidence.
Nor do I accept Mr Ye's evidence that he only agreed to go to a shooting range and a local carnival with Mr Bertacco in the hope that if he went, Mr Bertacco would not be angry and aggressive towards him.
Mr Bertacco has maintained throughout these proceedings that from his perspective he took Mr Ye under his wing, both at work and in a personal capacity and that they developed a friendship outside of work in which they both joked about things together. He says that his comments made in the work setting ought be properly viewed in the context of this broader friendship and that whilst some of the comments which he admits he made, might appear inappropriate when viewed in isolation, they are in fact indicative of the type of relationship that he and Mr Ye had and which take on a different complexion when viewed in that context.
Mr Bertacco also says that the comments made on the worksite must be viewed in the context of the culture that exists on a worksite which is different from the sensitivities that one might expect, for example, in a white-collar environment.
In support of the nature of his relationship with Mr Ye, Mr Bertacco has provided a range of text messages and other communications between himself and Mr Ye which indicate that Mr Ye participated in the banter that he now says he took objection to.[34] For example:
- In March 2020, Mr Ye sent a message to Mr Bertacco in which he said "Hahaha Can you shit sitting down";
- in March 2020, Mr Ye sent Mr Bertacco an image of an article with the heading 'Lesbian numbers plummet - Coronavirus Chaos Making Men More Desirable' and then said "Get more girlfriends";
- on 6 September 2021, Mr Ye sent a Youtube video to Mr Bertacco with the heading 'Meanwhile in Russia' - the message was sent at 8.35 pm;
- on 28 September 2021, Mr Bertacco sent a photo to Mr Ye of his son wearing a t-shirt gifted to him by Mr Ye;
- exchanges between Mr Ye and Mr Bertacco about various items of interest, e.g. on 11 September 2020, Mr Ye sent an image of 'Universal Phone Suction Holder Strap' to Mr Bertacco to which Mr Bertacco replies "Get it" and Mr Ye then replies "be the bad n- word";
- text message exchanges between Mr Ye and Mr Bertacco in September 2020 about gaming vouchers and noodles;
- late night message from Mr Ye to Mr Bertacco on 13 September 2020 about the comedian AliG with a message 'Watch this story by Excuse Me on Instagram before it disappears';
- text message exchanges in March 2021 about business ideas that Mr Ye was considering/exploring; and
- various photos of Mr Ye spending time with Mr Bertacco and his son clearly outside of work hours, at carnivals, shooting range, and the like.
I prefer Mr Bertacco's evidence that:
- he thought the applicant might be lonely and therefore began inviting him to do things together outside of work and that he did not pressure the applicant to attend, he was simply trying to make a young person feel included;
- he invited the applicant into his home, his family and his life out of a genuine attempt to make a young person who was living in Australia without friends or family, feel welcome in the community; and
- he took the applicant under his wing on the worksite as well in circumstances where he did not have any prior construction work experience.
Mr Bertacco also gives evidence about the preferential treatment that Mr Ye received compared to other workers. For example, he says that during the COVID-19 pandemic, Toto laid off a number of more experienced workers but kept him and Mr Ye on. He said that he understood that Mr Ye was kept on at that time because he and Mr Ye worked well together.[35]
Mr Bertacco's evidence about his support for Mr Ye in the workplace also supports that he and Mr Ye were in fact friends rather than just work colleagues and that this friendship extended beyond the workplace. I also accept Mr Bertacco's evidence that in addition to helping Mr Ye in the workplace (for example, by letting Mr Ye freely use his tools), Mr Bertacco also helped Mr Ye outside of work. For example, when Mr Ye had issues with his rental accommodation, Mr Bertacco helped him to find alternative accommodation.
Another worker from Toto, Mr Chianese, has also given evidence in these proceedings. His observations of Mr Ye and Mr Bertacco are consistent with Mr Bertacco's description of their friendship. Mr Chianese deposes to working for Toto from April 2019 to February 2020 and then February 2022 to December 2023.[36] He said that he worked alongside Mr Bertacco and Mr Ye and believed them to be good friends. Relevantly he said:[37]
1. I recall that Lliam and Alan almost always ate lunch together on site. Alan often used to show Lliam things on his phone and the two of them would watch and laugh together. I have also seen them share their food. I never saw Alan distressed or upset around Lliam. I never witnessed any behaviour which suggested that Lliam was bullying or harassing Alan.
2. Whilst there was a level of joking and banter between contractors on the worksite, as is the case with any building site in the construction industry, I did not witness any behaviour which I would perceive as Lliam bullying or harassing Alan. ... I recall that Alan would sometimes refer to Lliam as an "old Aussie fart" and on another occasion when Lliam returned to work after injuring his hip Alan mocked the way in which Lliam was limping on the work site.
In cross examination, Mr Ye conceded that at times he joked with Mr Bertacco, both on the worksite and out of work. He conceded that he sent memes to Mr Bertacco which he considered to be funny.[38]
Whilst Mr Ye conceded that in some of his own dealings with Mr Bertacco he also engaged in what could be described as inappropriate exchanges, he sought to minimise his understanding of what he was saying and/or that he used terms that Mr Bertacco had introduced him to without properly understanding what they meant. I do not accept this evidence.
For example, Mr Ye conceded that he called Mr Bertacco a 'masturbator' but goes on to explain the context in which this occurred as follows:[39]
1. ... early on in my employment with Toto Properties, Lliam used to jokingly say that he was my "grandmaster" and I was his "grasshopper". He also repeatedly asked me to call him grandmaster. On these occasions, in response to what was a joke, I jokingly called Lliam a "masturbator".
In the course of cross examination on this issue, the following exchange occurred:[40]

[22]

I am not persuaded by this evidence. This is another example of Mr Ye seeking to minimise his own participation in a friendship with Mr Bertacco in which they both engaged in banter with each other which included the use of what might in a different context be considered to be inappropriate.
Mr Ye also agreed that he sent Mr Bertacco a meme about a supposed drop in the number of lesbians after COVID and therefore more girls being interested in men and the increased prospect of getting a girlfriend.[41] This exchange and others between Mr Ye and Mr Bertacco, are more consistent with a friendship between the two of them than the racially charged and intimidatory relationship that Mr Ye invites the court to find existed. It is highly improbable that Mr Ye would have had, and continued to have had, such exchanges with Mr Bertacco if he were, as he now claims, fearful of Mr Bertacco, and if he found Mr Bertacco's comments in the workplace to be racially offensive, and intimidatory.
I also find that the nature of the banter between the applicant and Mr Bertacco included swearing, reference to the term 'gay', referencing Mr Bertacco as 'master baiter' or 'masturbator' and the like. The applicant also used the 'n-word' in a text message to Mr Bertacco which I will discuss further below. Again, when asked about this in cross examination, the applicant suggested that he only used it because Mr Bertacco used it first and that he did not understand the meaning of this term until these proceedings.[42] The applicant conceded that this was sent in a joking manner following from an earlier exchange. The applicant also conceded that he now understood that to be an offensive term. When asked about this, the applicant said 'Well, he was the person that started using it first and that term is what he would use.' [43]
I do not accept this evidence.
Having regard to the totality of the evidence, I find that Mr Ye and Mr Bertacco became friends whilst working together. I prefer Mr Bertacco's evidence as to the nature of their relationship, namely that Mr Bertacco took Mr Ye under his wing and that he did what he could to ensure that the applicant learnt the necessary skills on a construction site. I accept Mr Bertacco's evidence that he assisted Mr Ye both in the workplace and outside of work. In particular, he assisted Mr Ye to find alternative accommodation, as well as other matters from time to time.

[23]

It is common ground that after a year or so of working with Toto, on 6 April 2019, Mr Ye advised Mr Mikus that he would not continue with the role.[44] He told Mr Mikus that this would be his last week working. According to Mr Ye, Mr Mikus did not ask why and simply 'nodded'.[45] The applicant says that in April 2019 he then posted another listing on Gumtree saying he was looking for work in warehousing.
Mr Mikus said he was not shocked by this news as he understood that the applicant was setting up an online business but did comment on the short notice given. [46] Similarly, Mr Bertacco also gives evidence that he understood that Mr Ye had left Toto on the first occasion to start up an online business.
Mr Bertacco says that he visited Mr Ye at home not long after he finished working for Toto, to see how he was going. Mr Bertacco's version is that he was simply acting out of concern for a person whom he had become friends with and whom he had assessed, did not have many supports in a foreign country.
Mr Ye seeks to put a different complexion on this visit. His evidence is that Mr Bertacco came to his home and he was yelling and screaming at Mr Ye and asking why he had not gone to work.[47]
Mr Ye's evidence is that Mr Bertacco came to his home in his own personal time, as he was not working that day, only to berate and attack Mr Ye for having left Toto after they had worked together for one year. I find Mr Ye's evidence about this incident, highly improbable. Rather, I prefer Mr Bertacco's version that, in circumstances where he had previously formed the view that Mr Ye did not have much support in Australia, and in the context of the friendship that he had formed with Mr Ye, he was concerned about how Mr Ye was getting on and came around to check in on him. Not only is this consistent with the nature of the friendship that had developed between the two men at this stage, but it is also consistent with Mr Bertacco's subsequent actions of checking in with Mr Ye again a few months later and then assisting him to return to Toto and negotiating a higher rate of pay for him.
To the extent that Mr Ye suggests that he left Toto in April 2019 because of the conduct of Mr Bertacco, I do not accept this.

[24]

Mr Ye says that in August 2019, he received a call from Mr Bertacco asking if he had found work yet to which he said he had not. Mr Bertacco asked if he wanted to return to working for the second respondent and if he wanted more money, to which, according to Mr Ye, he reluctantly, said 'yes'.[48]
Mr Ye said a few moments later, Mr Bertacco called again and said that if he returned to Toto he would be paid $27.50 per hour. As he had not secured alternative work, he agreed and returned to work.[49]
Mr Ye's evidence about this is as follows:[50]
1. On or around 30 August 2019 I returned to work for Toto Properties. Lliam told me which worksite to go to. At that worksite, Peter walked in the door, towards me and reached out his hand to shake hands with me. He seemed very happy to see me and I was very surprised and confused as Peter generally scared me and had not been that friendly before or since.
Mr Bertacco's evidence is that a few months after Mr Ye had left Toto, he contacted Mr Ye to see how he was going and they discussed Mr Ye returning to Toto. Mr Ye said he would come back for a higher rate of pay. Mr Bertacco says he then negotiated an increase to Mr Ye's pay with Mr Mikus and Mr Ye returned to work for Toto.
Mr Mikus' evidence is consistent with Mr Bertacco's. Mr Mikus said that in August 2019, Mr Bertacco approached him and told him that the applicant wanted to come back to work but wanted to be paid $27.50 per hour. Mr Mikus said that in circumstances where the applicant now had some experience and that it was a busy time, he was happy to increase the applicant's pay rate.[51]
Again, I prefer the evidence of Mr Bertacco and Mr Mikus about the circumstances in which Mr Ye returned to work for Toto. I accept that Mr Ye left Toto in April 2019 to try his hand at running an online business. I find that as this had not gone as well as he had hoped, he accepted the offer to return to work at Toto and that he accepted a higher rate of pay negotiated on his behalf by Mr Bertacco.
It is common ground that Mr Ye continued to work for Toto from August 2019 to March 2022.[52] Mr Ye's evidence is that he continued to work an average of 40 hours per week during this period and submitted invoices for work performed. I note that this is not consistent with the content of the letter that Mr Ye had Mr Mikus sign for visa purposes on 4 March 2022 which states that he worked an average of 20 hours.[53] Given my ultimate findings in this matter it is not necessary for me to resolve this discrepancy.

[25]

Mr Ye says that during his time working with Mr Bertacco, Mr Bertacco would repeatedly make derogatory remarks about Asians generally, Chinese people specifically and also would engage in mocking and ridiculing the applicant on the basis of his race. Mr Ye also claims that Mr Bertacco regularly swore at him, mocked and ridiculed him and generally treated him poorly and that this was because of his race.
Mr Ye says that Mr Bertacco engaged in this conduct on a weekly basis.[54] He says that this conduct occurred at the worksite in the presence of other workers and also occasionally in the presence of Mr Mikus.
He says that these comments and behaviours made him feel 'angry, upset, uncomfortable, helpless, scared, confused or ashamed'.[55] He says that he did not raise these issues at the time because he was fearful, found Mr Mikus to be intimidating and thought that if he ignored the comments and behaviours they would ultimately stop.
Mr Ye sets out at paragraphs 19, 20 and 21 of his trial affidavit the various conduct allegedly engaged in and comments allegedly made by Mr Bertacco which he found offensive. Some of these claims are clearly racially based on their face. Many are not. In respect of the latter, Mr Ye claims that he was subjected to that conduct because of his race and because he was a vulnerable person due to his ethnic origin among other things.
The applicant says that he has vulnerabilities arising from the fact that he came to Australia on a student visa and whilst in Australia struggled with rent, accommodation, tuition, immigration fees and not having a close network in Australia. He says that this was part of the reason why he accepted the role with Toto, why he remained with Toto and why he was more vulnerable in his employment.
Mr Bertacco says that it is common on a construction site for there to be banter between workers and for workers to call each other nicknames without any malice at all.[56] He says that the applicant freely engaged in this banter during the time they worked together and also called Mr Bertacco unsavoury names and words from time to time. He says that he did not take this to heart as it was all just part of being on a building site and that to the extent that Mr Ye made these comments to him, they were made in the context of a friendship that had developed between them. Mr Bertacco maintains however, that it was clear to him that the applicant was not fearful of him and he expressly denies that he has discriminated against the applicant on the grounds of his race as alleged or otherwise.[57]
Mr Bertacco says that the claims now made by Mr Ye are inconsistent with the relationship that they had with each other and moreover, that in the four years they worked together, Mr Ye never complained to him or to anyone else about his alleged conduct.[58] Further Mr Bertacco says that if the applicant had made a complaint about his conduct to Mr Mikus, in particular in relation to allegations of racism, Mr Mikus would have acted and would have terminated Mr Bertacco's engagement.
As to the specific allegations made by Mr Ye, Mr Bertacco largely denies them. To the extent that he admits some of the comments alleged, he says that these comments were not discriminatory when viewed in context.
Mr Mikus says that at no stage did he personally observe any of the conduct now alleged by the applicant against Mr Bertacco. Moreover, Mr Mikus says that no other person on site had ever reported such conduct to him. Mr Mikus also deposes that had any such issue been raised, he would have taken action as he would not tolerate any such racial discrimination on one of his worksites.
I will address each of the allegations made by Mr Ye in turn below.

[118]

When probed further about this, Mr Ye said that this happened more often in the first year.[107]
Mr Bertacco denied this allegation.[108]
On balance, I do not accept that Mr Bertacco would falsely accuse and/or yell at Mr Ye for not doing any work. I do accept that there may have been occasions particularly in the beginning of Mr Ye's employment when he had finished a task and was waiting to be allocated another task and Mr Bertacco may have been a bit brusque in his manner at directing Mr Ye to find other things to do. However, having regard to the nature of the workplace, and the totality of the evidence, including that Mr Ye had no construction experience when he came to work for Toto and that Mr Bertacco effectively took him under his wing to show him the ropes, I do not accept that any such exchanges were offensive, inappropriate nor do I find that they were in any way motivated by Mr Ye's race or ethnic origin.
Having said that, I accept that Mr Ye may have preferred a different form of communication from Mr Bertacco and/or may have been uncomfortable at receiving this feedback from Mr Bertacco.
At paragraph 8(b) of the applicant's statement of claim, the applicant sets out a series of comments which he says Mr Bertacco made to him during his engagement with Toto. With the exception of the last comment, each of these are directed at or involve derogatory comments about Chinese people and/or Asian people more generally.
Mr Bertacco denied that he ever said:[109]
- fucking Chinese;
- there's too many Chinese;
- Chinese people would say 'fuck you' Aussies say 'good morning';
- the dirty Chinese eat bats;
- Asian lives don't matter;
- Asians are the most hated race;
- Chinese and Indians go home; and
- You Chinese don't understand.
I have addressed the 'Aussies say 'good morning' claim above.
When asked about the allegation that Mr Bertacco said 'Asian's can't drive', Mr Ye said he could not recall the specific incidents about that.[110] In those circumstances, I am not satisfied to the requisite standard that this allegation is made out.
On balance, I am not satisfied to the requisite standard that Mr Bertacco engaged in the conduct alleged in paragraph 8(b) of the SoC.
Mr Bertacco also admitted that he did say to Mr Ye, words to the effect of 'you have been sucking too much cock' whenever Mr Ye had a nosebleed, but said it was just 'boy banter'.[111] I accept that Mr Bertacco made this comment but it is not clear when this statement was said and whether it was made in the work context or on one of the many occasions when the applicant and Mr Ye spent time together out of work. In any event, given the context of the banter that they engaged in both in person and by text message this comment is not one which is outside the scope of that relationship. Moreover, I find that it was one that was made to Mr Ye because of the relationship that he had with Mr Bertacco and was not based on his race in any way.
At paragraph 8(c) of the SoC, the applicant sets out a series of other terms by which he claims that Mr Bertacco referred to him. I will deal with each of the allegations in turn.
Mr Bertacco agreed that he did say to Mr Ye words to the effect of 'you're fucking useless' but went on to say that this was not said 'in a bad way'.[112] When asked how such a comment could be anything other than 'bad', Mr Bertacco said 'when you are friends with someone, it's ... Allen and I were close friends, so it wasn't a bad thing, it was just banter.'[113] Mr Bertacco maintained that it was not intended to be offensive.[114] Mr Bertacco also conceded that he called Allan 'gay' and also a 'fuckwit' but again said that 'it was done in a jovial mateship's kind of way. Work banter'. [115]
In this context, the following exchange occurred between Mr Bertacco and Mr Ye:[116]

[124]

It was apparent from this exchange that Mr Bertacco did not know what a 'wing nut' was. In circumstances where Mr Bertacco did accept that he made some of the comments alleged, but sought to explain the context or sense in which they were used, I prefer his evidence in relation to this claim and accept that he did not use this term to Mr Ye as alleged.
He also denies using the term 'GAS' standing for 'Gay Asian Strength' in respect of Mr Ye. Indeed his evidence was that he had never heard of that term before.[119] Mr Bertacco also denied calling Mr Ye a 'Uyghur' or using that term in relation to him, again suggesting he was unfamiliar with that term.[120]
Mr Bertacco did agree that he referred to Mr Ye as 'gay-boy', a 'dumb c-word' and a 'dickhead'.[121] Again, he said that these terms were all used in a 'close friendship manner'.[122] In relation to the term 'gay', Mr Bertacco's evidence was that he used that to refer to everyone, including himself and that it was not, to his mind a derogatory term. Mr Bertacco provides a range of text messages in which he refers to lots of different people and situations including himself as 'gay' as evidence that when he used this term it was not used in an offensive manner. Those text messages are consistent with a benign use of the term. In circumstances where tone and context can shape the way in which a term is used, and or received, and absent any specific details from Mr Ye which would suggest that this term was used in a way that was offensive to Mr Ye, I am not satisfied that it was offensive. In any event, even if Mr Ye did find the term offensive, I am not satisfied that Mr Bertacco used this term in relation to Mr Ye due to his race or ethnic origin.
Mr Bertacco's evidence was that he did use terms which in another work context might be considered to be offensive on their face but that in the building industry, with the type of workers who were engaged in that industry, and in the context of the friendship and mentorship which he understood he had with Mr Ye, were not offensive and indeed were used in a friendly, 'matey' sort of way. Moreover, when regard is had to the text communications between them, Mr Ye also used similar language in his communications and therefore, there was no basis for Mr Bertacco to assume that his comments were not received in the manner in which they were intended.
At paragraph 9 of the SoC, Mr Ye claims that in or about May 2018, while he was scraping plaster off the floor, Mr Bertacco said 'You need Aussie strength, not Asian strength' or words to that effect. Mr Bertacco denies this.
At paragraph 10 of the SoC, Mr Ye claims that Mr Bertacco said words to the effect of 'my turd looks like your face'. Mr Bertacco said he did not recall saying this. To his credit, Mr Bertacco went on to say that it is possible that he may have said something like this over the 4 year period that he had worked with Mr Ye, and in respect of a period of almost 6 years prior to the hearing. Again, whilst these comments on their face would seem offensive, they must be viewed in the context of the friendship between Mr Bertacco and the banter that they both engaged in. I note that Mr Ye sent a message to Mr Bertacco asking if he could 'shit sitting down'. On balance, I find that Mr Bertacco did make this statement, but it is not in any way racially based.
In cross examination when asked about the 'can you shit sitting down' message, the applicant said that this was in response to something that the applicant said to him.[123] When asked about this message he first said he did not recall sending it at all but conceded that he did send it. When asked about the context of that message, he said:[124]

[127]

... Yes. You were shouting at your house. I don't remember whether you asked me to go, or whether I ... just went. But I've repeatedly - because you previously, at work, ... you asked me, "Why do you use Tinder?" I just said "I don't like using Tinder. I really don't". So then, one day, I was in your house. So you asked me to borrow my ... phone, and I didn't know what it was for. But, well, I might have heard that you were, you know, your voice getting higher.

... So - and I didn't want to make you upset.

... And I gave it to you. All you did was using - you look at your phone about my phone number and then you sign it up for me and you asked me to look at it. So on the one hand, I can't - I mean, I kind of have to do - you know, just like work, I have to do what you asked me to do. So I just start looking, and then you probably saw me looking at women close to a Caucasian background, and maybe just for 10 seconds. Maybe I didn't like them. And then he yelled at me. It was just ... really loud.

...

... really ... you became really angry.

... you were sitting on the couch.

...you were extremely angry.

...

...

You were still angry. And I felt very painful, very hurt. And ... I just told you I had to leave. ...

... And then I ... might have opened up your door and I told you about it and I left. If I'm not wrong, I probably had a cry when I went home because of how sad I was. ... the next - it's either the next day or the next week, I just told Peter.

...

I just told Peter it was my last week, and Peter said "Did you tell Lliam?" I just went 'No'

...

Well, you abused me ... well, at that point, for a year. And I tried to be nice to you ... the best I could, you know. I went to the hospital when you fell off the roof. I mean,... after I went to the hospital, I saw you, maybe at that period of time, until the point where you said this to me, you didn't scream at me. You didn't yell at me at that point, and I thought, I thought it was fine.

...

... because you look at me, look, swiping Tinder for 10 seconds, and then you made the assumption is I didn't like Asian girls. You don't know that. For 10 seconds, and I, maybe ... I accidentally swipe something and then you made that assumption about me and then decided it would be a good idea to scream at me.

[128]

Mr Ye's evidence about this incident is not credible. On his own evidence, he had visited Mr Bertacco in his home. It is not clear why he would have done so if he and Mr Bertacco were not friends. I do not accept his evidence that he felt he had no option but to attend at Mr Bertacco's home. Mr Ye has not established on the balance of probabilities that this interaction occurred as he now claims. I am prepared to accept that whilst in Mr Bertacco's home, they had a discussion about Tinder and possibly about the types of people that Mr Ye might be attracted to. I do not accept that Mr Bertacco became angry and abusive to Mr Ye, a person who he considered to be a friend and a person who he had invited into his own home.
At paragraph 13 of the SoC, Mr Ye alleges that in or about December 2019, when Mr Ye was guiding flooring contractors who were of Chinese ethnicity into a driveway near a worksite, Mr Bertacco laughed and shouted 'Asian versus Asian'.[129] Mr Bertacco denies making this comment.[130] Mr Ye's evidence about this incident again was not persuasive. Moreover, it is not clear what the alleged statement, if made by Mr Bertacco was intended to convey. On Mr Ye's version, he was assisting the driver of a vehicle to either drive into or reverse out of a driveway. It is not clear why this would be characterised as one person 'versus' or against another. It is not an inherently negative or disparaging comment and Mr Ye's evidence about this did not clarify the circumstance in which he says that it occurred.
I do not accept Mr Ye's evidence about this incident. Moreover, for reasons previously given, where there is a dispute between the parties, I prefer the evidence of Mr Bertacco and am not satisfied to the requisite level that the comments were made as alleged.
At paragraph 14 of the SoC, Mr Ye refers to a text message exchange on 29 March 2020 in which he attached an article about the COVID-19 deaths in Wuhan and said 'China Lies'. It was put to Mr Bertacco that in sending this message, he was being disparaging about China and that this would have been offensive to Mr Ye who was Chinese. Whilst conceding that he sent this message, Mr Bertacco denies that this message was offensive to Mr Ye or to Chinese people.[131]
Mr Bertacco said that this exchange between two friends was responsive to a topical issue at the time, given that this was at the beginning of the COVID-19 pandemic. Mr Bertacco further said that his comment was referring to the article that he sent to Mr Ye in which a discrepancy was noted between the number of deaths reported compared to the number of urns provided (presumably for the remains of each person who had died). Mr Bertacco said that the comment he was making was directed and inaccurate information being provided.[132]
When asked about this, Mr Ye said this was just another example of Mr Bertacco saying a lot of political things in the workplace, including mentioning China's 'One Belt One Road' program.[133]
In this context, the following exchange occurred:[134]

[134]

Can you expand on this?---Yes. So if I'm not wrong, I was nailing the weatherboards with Miguel, and I think I needed more nails. So because the building was two-storey. So I don't know if that's - you call it a large balcony. So we were on the balcony. I had to walk down. As I was walking down, I saw - you know, you were cutting something. I think it was the plank, like a big piece of timber, for - for everybody to walk, and the Chinese .... came next to you and said - said, I think, 'Hey. Hey, boss." Maybe he said, "Hey, boss. This mine." And so, after - you know, then I walked in, walked inside the house because you were doing at the sliding door. I kind of walked in and turned right into the room for - and I was getting nails, and for a few moments, I couldn't - maybe I hear some - you know, a little - you know, kind of stepping, but I'm not too sure. Maybe I didn't hear anything, but when I walked out, your hands were down, you're screaming at him like, "Fuck off, fuck off, fuck off, fuck off." You just keep going. Every time you said, "Fuck off, and the Chinese guy kind of crossed his arm in a further distance. He said, "Why?" So then he got, "Fuck off." "Why?" "Fuck off." "Why?" So it kind of went like that, and I walked upstairs, and I was just - maybe I was struggling, and I was telling Miguel, saying, "Thing like this happen. You just don't want to get involved", and I think later on, when you walked upstairs, you were telling us that you thought that was Miguel's saw - Miguel's saw - circular saw, and then I asked you whether I could talk to him. You say, "Yes, you can go talk to him." And I walked downstairs. He was in - in the house downstairs, and he said - he was calling his boss. I was sitting - standing next to him and I asked him - well, after he finished the phone calls, I asked him what happened. He said, "He pushed me." Because everything was spoken in Chinese, so I'm sort of doing a translation, "He pushed me twice." I kind of - I was a bit shocked because - and I didn't really - I don't remember what I said, but I think I didn't - I wasn't too sure what I would say. I think I said to him, "Maybe you stood too close to him." Because I do remember Lliam complaining about the Chinese people at the pool was swimming really close to him, had no manners. So my assumption is that - that's might have been what happened. And then he asked, "Well, how can you work with somebody like this?" And if I'm not wrong, I said, "Well, I don't want to do it any more." I didn't want to do it any more, and I just, "Yes, I just don't know what to do." I didn't know what to do. And then he sort of went, "You don't want to do it any more." And maybe I spoke to him again later on, and he was saying that Peter told him - Peter told his boss that Lliam was just an independent contractor, had nothing to do with him, with Peter. And after he said that to him, he turned sort of around and said, "I'm so upset. I just want to go home." And I sort of walked him - walked with him to his car. I said, "Yes." And I said, "Sometimes it's better if you work by yourself." And I remember seeing Peter calling Lliam up. Lliam picked up the phone call, and Peter said - Peter asked him about it, and then there was this exchange where Peter yelled, "But you can't fucking push him," or maybe, "But you can't push him." and I heard that over the phone. And Lliam said, "Yes, this fucking screaming." It's a lot more aggressive as I'm - what I'm saying - compared to what I'm saying. So - and then some time passed and, as he was walking - I was standing on the balcony, and he was on the ground. So as he walked past, I asked him - I said, "Did you push him?" He stopped and turned around and said, "You Chinese don't understand. You don't look at me and say, "Hey, hey, hey." And I didn't know - I didn't know what I should or could do at that point.

[143]

I find that Mr Bertacco sent both of these text messages. Both are in their terms objectionable. However, they were private communications between the applicant and Mr Bertacco. For the reasons given earlier, whilst objectionable and no doubt inappropriate in most if not all workplaces, the tenor of the communications must be ultimately considered in the context of the nature of the relationship between these two individuals and the context in which they occurred.
These communications were exchanged in August 2021 after these two men had known each other and worked together, for over two years. The objective independent evidence, such as it is, suggests that they shared jokes together whilst at work and were observed to spend lunch time together sharing their food and conversation. There is objective evidence of Mr Ye socialising with Mr Bertacco during this period including text messages from Mr Ye to Mr Bertacco which whilst not racially based or directed to Mr Bertacco personally, indicate that Mr Ye is actively engaging in the banter and that it is a two way communication. The evidence is that Mr Ye also sent inappropriate messages to Mr Bertacco, including the use of the N-word in one message, a term which in many contexts, if not most, is inherently considered to be racially inappropriate and offensive.
In the context of the toilet text, the fact that Mr Ye sent the first image to Mr Bertacco is consistent with Mr Bertacco's evidence that there was an issue with the condition of the toilets on the worksite when certain other contractors were there.
In that context, Mr Bertacco's response, while inherently offensive, was clearly not directed at Mr Ye, but rather was directed at the other workmen on site.
I stress that in making these observations, I do not intend to be seen to be condoning the use of the language in either of these text messages. However, as will be seen shortly when I consider s 9 of the RD Act, the conduct must be assessed to determine whether it has the purpose or effect of nullifying or impairing the 'recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life'. For the reasons set out above, I find that this was not Mr Bertacco's intent or purpose. In determining whether it had that effect notwithstanding, one must therefore have regard to the context in which the comment was made.
Finally, at paragraph 21 and 22 of the SoC, Mr Ye alleges that an incident occurred on 1 March 2022 which ultimately led to him ceasing his engagement with Toto.
In relation to this incident Mr Bertacco says that on 1 March 2022 he and Mr Ye were working at a site which did not have easy access and the tradespeople working had to park at the road and walk with their tools down a narrow track of about 100 meters to the building site.[145]
In relation to this incident Mr Ye said:[146]
1. On 1 March 2022 I was working at a worksite in The Patch. Lliam was aware that I practice jiu jitsu. Early in the day, Lliam referred to my jiu jitsu practice and mocked me by stating, 'You get nuts and ass rubbing on your face' or words to that effect. I did not respond but the comment made me angry.
2. Later on in the day, Lliam yelled at me, 'Where are my fucking screws?' I did not respond. Miguel went to get the screws. Liam later asked for a shifter. I did not have my toolbox with me. Lliam yelled at me, 'You only fucking have a water bottle'. I cut him off and yelled back 'Don't give me this shit, fuck off'. Shortly after, I asked Lliam what I should do with some offcuts of timber. Lliam replied 'Do whatever you want Alan, do whatever you want.' We stopped talking to each other after that.
Mr Bertacco denies that he made the 'nuts and ass' comment as alleged or that he yelled at him about his screws.[147] Mr Bertacco says that when the applicant arrived for work he did not have his tools with him which he was supposed to bring down from the car. Mr Bertacco says that he told the applicant he should have brought his tools and that he said words to the effect of 'don't do trips up and down a steep hill empty handed'.[148] Mr Bertacco says that he then noticed that the applicant was typing a list of materials into his phone, from a list prepared by Mr Bertacco, which the applicant would need to go and buy and he said to the applicant words to the effect of 'take a photo of my list'. Mr Bertacco says that the applicant then screamed at him in the following terms 'Don't give me this shit. Fuck off'.[149] Mr Bertacco said that this exchange occurred in front of two other workers, Gavin and Miguel.[150]
Mr Bertacco said he did not respond. He assumed that the applicant was just 'blowing off steam' and did not consider it a big deal.[151] Mr Bertacco further says that he did not say anything about this incident to Mr Mikus. He said that he spoke to Mr Mikus later that day and told him that they had finished the job and that he was available for the next job in Upwey. Mr Bertacco says that he told Mr Mikus that as that was a small job he could do it on his own and did not need a labourer.
When asked about this in cross examination, Mr Bertacco said that he recalls Mr Ye snapping on that day, but says that it 'was over nothing'.[152]
Mr Bertacco denies that he made any comment as alleged by Mr Ye about him 'gets nuts and ass rubbing on [his] face' being a reference to Mr Ye's Jiu Jitsu.[153]
Mr Bertacco says that he went to the Upwey job the next day and then heard that the applicant had resigned a few days later.[154]
Mr Ye says that later on the evening of 1 March 2022 he received a message from Mr Mikus telling him to take the following day off which the applicant says was unusual.[155] He says that he did not work again for Toto after that date. Mr Ye also says that Mr Mikus did not contact him again after that about work and he did not want to go back to work because of Mr Mikus' last text message to him and because the situation at work was not good for him, because of Mr Bertacco's ongoing conduct towards him.
Mr Bertacco says that it was common for Mr Mikus to tell him that he was not needed at times when jobs were completed until the next job came up. He said that when the applicant had been told there was no work in the past, he had complained to Mr Bertacco and Mr Bertacco had spoken to Mr Mikus and suggested that the applicant be engaged on other work.
In relation to the incident on 1 March 2022, Mr Mikus says that he received a call from Mr Bertacco in which he said that Mr Ye had lost his temper and shouted at him [Mr Bertacco].[156] Mr Mikus said that he attended the worksite later that day and after making inquiries of others who were on site about what had happened, decided that in circumstances where the work at that site had temporarily finished and he didn't have any other labourer work the following day, it would be a good idea for Mr Ye to have a day away the following day. He sent Mr Ye a test message asking him to take the next day off.
Mr Mikus confirmed that he did not speak to Mr Ye about what had happened on site as he had already left for the day.[157] He says however, that he heard what had happened from two independent witnesses, namely Mr Bertacco and another worker, Miguel.
Mr Mikus said that as far as he understood, Mr Ye and Mr Bertacco were good friends, and his expectation was that Mr Ye would come back to work within a few days. Mr Mikus maintained in cross examination that he did not understand the incident which occurred on 1 March 2022 to have been a 'big deal' and certainly did not understand that there were any allegations of racial discrimination which were being raised. [158]
Mr Mikus says that Mr Ye did not contact him after that for any further work.[159] Mr Mikus then received an email from Mr Ye on 5 March 2022 in which Mr Ye requested that he sign a letter which stated the period during which he had worked for the second respondent as a subcontractor.[160]
Mr Mikus says that as that letter stated the period of Mr Ye's work as ending on 1 March 2022, he took that as Mr Ye not wishing to undertake any more work for Toto. He therefore did not allocate any further work to Mr Ye. [161]
It is clear from the applicant's own evidence that, prior to the 1 March 2022 incident, there had been other times when he was told that there was no work for him and his services were not required and then subsequently, when there was work, he was re-engaged.

[145]

"the applicants' allegations against the respondents can be described as "serious". To allege that individuals performing public functions and exercising public powers did so on the basis of race is to make an allegation that reflects poorly upon those individuals."

The same is true here of the individual respondents in particular. The applicants make serious allegations against them. I wondered at times during the trial whether the seriousness of what was being alleged, especially in relation to the classroom teaching about Israel and Palestine, was entirely appreciated by the applicants and their legal representatives.

In determining what matters of fact I am satisfied about on the balance of probabilities, I have borne in mind the factors set out in s 140(2). Those factors are not exhaustive, and I have not confined myself to considering those factors. I have also reminded myself that each of the individual respondents remains employed as a teacher and that there are reputational and professional considerations which may flow from the findings of this Court. In relation to Mr Minack, I have borne in mind that he remained the principal of BSC at the time of trial, and that his professional and personal reputation has been very much placed in issue by the applicants' allegations. I have been mindful, in making the findings that I have, of the possible consequences for Mr Minack of my findings. I have therefore sought to ensure I have an appropriate level of satisfaction about the findings of fact I make relating to his conduct.

Finally, it is of some relevance in this proceeding to recall the observations of Branson J in Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [138], that the "the inherent unlikelihood of an occurrence of a given description" (citing Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 362) is a consideration which may affect the answer to the question whether an issue has been proven to the reasonable satisfaction of the Court. That particular factor has some relevance to the applicants' allegations about the classroom conduct of Mr Varney, Ms Flessa and Mr Lyons.

[146]

Applying these principles to the issues before me, I make the following findings.
I find that as a result of working together Mr Bertacco took Mr Ye under his wing both at work and outside of the workplace and they became friends and communicated with each other outside of the workplace as well as working closely together. I accept that Mr Bertacco invited Mr Ye into his home and that Mr Ye became friends with Mr Bertacco's son and was introduced to Mr Bertacco's mother.
I also find that in circumstances where Mr Ye did not have any construction experience, Mr Bertacco took it upon himself to try and teach Mr Ye the skills needed to progress within the construction industry. A significant example of this is Mr Bertacco's involvement in arranging for Mr Ye to be offered further work and at a higher rate of pay in August 2020. Similarly, Mr Bertacco's involvement in ensuring that Mr Ye had consistent work during the COVID-19 pandemic when other workers were not kept on as much.
I accept that at times, Mr Bertacco may have been curt or direct with Mr Ye if Mr Ye made mistakes at work. I also accept that Mr Ye may have found this manner of instruction to be confronting at times. However, I do not accept that Mr Bertacco's treatment of Mr Ye was in any way based on his race or his ethnic origin.
I also accept that at times, Mr Bertacco used colourful language including in his communications with Mr Ye. However, having regard to the totality of the evidence and subject to the two text messages which I will address below I do not accept Mr Ye's claims that this included racially abusive language. Moreover, Mr Bertacco's comments must be viewed in the context of the relationship that he and Mr Ye had, which by reference to Mr Ye's own messages to Mr Bertacco included comments from both of them which could be viewed as being racially inappropriate.
Mr Bertacco concedes that he sent the two text messages which include objectionable material referred to above, the COVID test text and the toilet text.
I further find that Mr Mikus was not aware of either of these two text exchanges. I also find that Mr Mikus was not aware of any of the concerns now raised by Mr Ye. I also accept his evidence that he would not tolerate any racially abusive communications in the workplace and that if he had been aware of any such communications, he would have taken action against the offending party.
I find that there was an altercation between Mr Bertacco and a kitchen installer but I accept Mr Bertacco's evidence that this related to a dispute about whether Mr Bertacco had used the kitchen installer's tools and did not in any way have a racial overtone or that racial comments were made.
In relation to the remaining allegations made by Mr Ye I make the following findings:
- I do not accept that Mr Bertacco used an exaggerated, high-pitched voice to imitate and mock the applicant, nor do I accept that Mr Bertacco mocked the way that Chinese people speak English;
- I do not accept that Mr Bertacco told Mr Ye to 'speak English' when he did not understand what Mr Bertacco said;
- I do not accept that Mr Bertacco referred to other Asian people as Mr Ye's 'mates';
- I accept that Mr Bertacco used expletives on the worksite and that he may at times have raised his voice at Mr Ye whilst in the workplace, when they were working together;
- I accept that Mr Bertacco may have raised issues about the way in which the Chinese government was dealing with the COVID-19 pandemic, however, I accept Mr Bertacco's evidence that this was reflective of the general discussions at the time reported on the daily news;
- I do not accept that Mr Bertacco demanded that Mr Ye say 'good morning' to him as alleged;
- Nor do I accept that Mr Bertacco would throw material offcuts into a toilet cubicle whilst Mr Ye was using it or that he attempted to lock Mr Ye in the toilet cubicle, that he poked the applicant with various objects or that he placed dead animals in Mr Ye's face, or pointed a blower in his face;
- I do accept that Mr Bertacco might have jumped out from behind a wall to give Mr Ye a fright and whilst this might be said to be somewhat childish, I accept that this is something that Mr Bertacco did with others, including with Mr Mikus;
- I do not accept that Mr Bertacco played loud music near Mr Ye's face, or that he shone his headlights into Mr Ye's eyes, or that Mr Bertacco would hit Mr Ye in the head if he did something wrong;
- I do not accept that Mr Bertacco shone his car lights into Mr Ye's face intentionally, although I have found that this may have occurred inadvertently as discussed earlier;
- I do not accept that Mr Bertacco said that the applicant 'loves it' when other people raised concerns about his conduct towards the applicant;
- I do not accept that Mr Bertacco spat fruit seeds at the applicant or into his lunch box;
- I do not accept that Mr Bertacco falsely accused the applicant of not working or yelled at him for not working;
- I do not accept that Mr Bertacco yelled at the applicant for being too slow in completing a task when other employees took as long if not longer than the applicant.
I do not find that Mr Bertacco made the comments attributed to him at paragraph 8(b) or (c), or paragraph 9 of the SoC, other than that at paragraph 8(b)(x), 8(c)(i),(ii),(iii), (vii), (viii) and (ix).
I accept on balance that Mr Bertacco made the statement attributed to him at paragraphs 10 and 18 of the SoC and that he sent the text message referenced at paragraphs 11, 14, 19 and 20 of the SoC.
In relation to the 1 March incident, I prefer the evidence of Mr Bertacco as to what occurred on that day.
I do not accept that the applicant made the statements attributed to him at paragraphs, 12, 13, 16, 17(b).
I note that the COVID test text and the toilet text were sent on 23 August 2021 and 25 August 2021 respectively. In LB-3, Mr Bertacco has annexed a number of text exchanges between himself and Mr Ye, including some after these dates. Relevantly, on 31 August 2021, shortly after these offending texts, Mr Ye sent an image with the heading 'Thieves training at gym' with a laughing emoji.
On 6 September 2021, Mr Ye sent Mr Bertacco a further text with what appears to be a Youtube video headed 'Meanwhile in Russia'. This is not consistent with Mr Ye's suggestion that the COVID test text and/or the toilet text were upsetting to him and that they made him angry.
The only other incident which Mr Ye refers to in his affidavit after this time and before the 1 March 2022 incident was the incident involving the kitchen installer and Mr Ye and the 'trophy wife' incident also in December 2021, both of which I have discussed earlier.

[158]

"It is critical, as Allsop J observed in Baird at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of "elements", as the respondents' submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if "effect" is the focus; or on what was intended, in a purposive sense, to be the outcome, if "purpose" is the focus.

The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened."

(Original emphasis.)

In Wotton at [545] I also made these observations which are relevant to the current proceeding and which I adopt and apply:

"Although Gageler J [in Maloney v The Queen [2013] HCA 28; 252 CLR 168] employs the language of s 10 ("to a more limited extent") rather than the language of s 9 ("nullifying or impairing the recognition ... on an equal footing"), the point is the same. The lack of dignity and respect that inheres in treating people in particular ways based on race lies in the difference between how the human rights and freedoms of those people are recognised and enjoyed and how the human rights and freedoms of people of other races are recognised and enjoyed. To answer the whole of the question posed by s 9(1), one must ask not only whether race is the reference point for the differential treatment, but also what is the nature and extent of the difference."

As I explain below, even if a "comparator" is not an essential element of the statutory prohibition in s 9, that is why comparison of treatment in an evidentiary sense can be an appropriate way to ascertain what was the true basis or reason for certain treatment.

[161]

Racial abuse of an employee, and indeed exposure to racial slurs in the workplace, can contravene s 9 of the RD Act.[162] As stated in Qantas Airways Ltd v Gama [2008] FCAFC 69 at [76] - [78] by French and Jacobson JJ (with whom Branson J agreed on this point):
1. ... Section 9 prohibits a class of acts defined by their attributes and their purpose or effect. To be unlawful under s 9 it is necessary that an act involve 'a distinction, exclusion, restriction or preference based on race, colour, dissent (sic) or national or ethnic origin ..." The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person's race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the persons race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person's race then the linkage establishes both the distinction and its basis upon race. That was the present case.
2. The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person's recognition, enjoyment or exercise on an equal footing of any "human right or fundamental freedom ...". The denigration of an employee on the grounds of that person's race or other relevant attribute can properly be found to have the effect of impairing that person's enjoyment of his or her right to work or to just and favourable conditions of work. The question then is whether two or three racist remarks over a period of time can have such a purpose or effect. That is a matter dependent upon the nature and circumstances of the remarks.
3. The learned magistrate having found the remarks were made, was satisfied that the making of them impaired Mr Gama's enjoyment or exercise of his right to work and to just and favourable conditions of work which would include the right to work free of discriminatory comments from his workmates. He did not elaborate in his reasons the way in which these particular incidents could have had that effect. Undoubtedly remarks which are calculated to humiliate or demean an employee by reference to race, colour, descent or national or ethnic origin, are capable of having a very damaging impact on that person's perception of how he or she is regarded by fellow employees and his or her superiors. They may even affect their sense of self worth and thereby appreciably disadvantage them in their conditions of work. Much will depend upon the nature and circumstances of the remark. Occasional politically incorrect banter will be unlikely to have the requisite purpose or effect. The judgement is a matter of fact. ... (emphasis added)
As noted by Judge Burchardt in Murugesu, 'the right to just and favourable conditions of work ... obviously includes a right to work in an environment free of racist insult'.[163] However, ultimately, the question is one to be determined by reference to the facts in each particular case.
Whilst I have found that Mr Bertacco sent the COVID test text message, I am not satisfied that that is a text message constitutes a breach of s 9 of the RD Act. It is apparent from the text exchange that Mr Bertacco and Mr Ye were having a conversation or conversations about the COVID-19 pandemic and China's response to it. So much is clear from Mr Ye's reply 'Jobs are more important'. In this context and having regard to the article which Mr Bertacco sent Mr Ye, the comment 'China lies' is a comment about how the Chinese government was responding to the challenges it faced in the pandemic. I make no comment about the validity or otherwise of Mr Bertacco's views, but it is not, in my view a comment that could be said to breach s 9(1). If this interpretation were upheld, it would silence discussions about political actions taken by governments around the world. The comment 'China lies', when read in context in that text message did not have the purpose or effect of nullifying or impairing a person's recognition, enjoyment or exercise on an equal footing of any 'human right or fundamental freedom ...'.
As stated earlier, it is a political observation about a country's response to a worldwide pandemic. As I said earlier, I make no comment about the correctness or otherwise of that observation. In the context of a friendship in which many things were discussed, including political issues, making this observation of itself, did not have the effect of 'nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.'
In relation to the COVID test text and the toilet text, I have found that Mr Bertacco did send those two text messages which were, on their face, derogatory of Asian people. The first that an Asian person providing a negative COVID test could not be trusted and the second that Asian people using toilets on a work site leave a mess. As I say on their face both of these are offensive. However, when regard is had to the context, first the fact that neither appears to have been directed at Mr Ye, and more importantly, the friendship between Mr Ye and Mr Bertacco and the nature of the communications between them including from Mr Ye himself, these two messages do not in my view have the requisite purpose or effect to amount to a breach of s9(1) of the RD Act.
For these reasons, I find that the applicant has not made out the claim under s 9(1).
It is therefore not necessary for me to consider the consequential claim under s 18A in respect of those aspects of the application.

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