Lin v American International Assurance Company (Australia) Pty Ltd (No 2)

[2006] NSWADT 228

CITATION:	Lin v American International Assurance Company (Australia) Pty Ltd (No 2) [2006] NSWADT 228
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Ping (Peter) Lin RESPONDENT American International Assurance Company (Australia) Pty Ltd
FILE NUMBER:	031102
HEARING DATES:	24-25/10/2005, 15, 21-22/12/2005, 10/04/2006
SUBMISSIONS CLOSED:	04/10/2006
DATE OF DECISION:	08/02/2006
BEFORE:	Britton A - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Hayes E - Non Judicial Member
CATCHWORDS:	Race Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey (No. 2) [2003] NSWADT 126 O'Callaghan v Loder [1984] EOC 92-023 Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 Waterhouse v Bell (1991) 25 NSWLR 99 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
REPRESENTATION:	APPLICANT I Archibald, barrister RESPONDENT C Ronalds, barrister
ORDERS:	1. Complaint of race discrimination is dismissed; 2. Complaint of victimisation is dismissed

1 The Applicant, Mr Pin (Peter) Lin, was born in the People’s Republic of China and migrated to Australia in 1989. He is now an Australian citizen. In 1997 he was appointed as a commission agent to sell insurance policies on behalf of American International Assurance Company (Australia) Pty Ltd (AIA), a multinational insurance company with offices in Australia. Mr Lin claims that AIA discriminated against him on the ground of race and also victimised him when he made allegations of race discrimination. AIA contends that those allegations are without foundation.

Background

2 Structure of AIA AIA sells life insurance and investment products to members of the public. According to AIA’s former National Director of Agencies, Carl Gustini, most of AIA’s clients based in Australia are of a “Chinese ethnic background” and the balance are from the Korean, Philippino and Vietnamese communities now resident in Australia. The ethnic mix of AIA’s agents mirrors that of its clients. AIA estimates that throughout the period Mr Lin was an agent, 1997 to 2000, about 75% of its agents were born in mainland China.

3 A hierarchy of agents exists within AIA, which, in ascending order, is as follows:

Agent

Agency Organiser

Agency Supervisor

Unit Manager

District Manager

4 Agents receive commission on the sale of policies. Progression through the AIA hierarchy entitles an agent to receive a share of the commission earned by those agents or sub-agents who are members of their team and below them in the hierarchy.

5 Agency Agreement AIA engages agents on a standard form agreement (the agency agreement). That agreement sets out the rights and obligations of the parties and the method for calculating commission. Headed, “Schedule of Contract Maintenance Requirements”, Schedule Three to the Agreement stipulates that the agent was required to bring in three new contracts (policies) and generate $3,000 “First Year Earned Premium” each quarter. In addition agents were required to achieve an 80% persistency rate which, in broad terms, meant that a prescribed percentage of policies sold by them must be renewed each year.

6 Guidelines for Promotion From time to time, AIA published guidelines, which set out the criteria for progression within AIA. It is common ground that the applicable guidelines for the purpose of Mr Lin’s complaints were those issued on 26 November 1998, “Revised 1998 Promotional Guideline” which in these reasons will be referred to as “the Guidelines”. It provided:

Minimum Standards of Performance…Agency Organiser to Agency Supervisor

A. Minimum of 10 newly created Agents of which 3 are full time.

B. $60,000 paid FYP [full year premium] and 40 paid cases (minimum 50% FYP from new agents). 1 year MDC [Million Dollar Club] qualifier would be preferred.

C. Nomination in writing by Agency Leader.

D. AIA final approval.

7 Appointment of Mr Lin On 10 March 1997, Mr Lin entered into a standard agency agreement with AIA. At the recommendation of team leader Mathew Cheung, he was promoted to Agency Organiser. The terms of that appointment were recorded in a letter dated 1 June1998 signed by both parties (the Organiser Contract).

8 At all material times Mr Lin was a member of a team of agents headed by Mathew Cheung of Persistent Financial Consultants.

9 Promotion Discussed with Mr Cheung Mr Cheung was not called to give evidence. According to Mr Lin, when Mr Cheung told him he had been promoted he also told him that he had an opportunity to become an Agency Supervisor. Mr Lin claims that Mr Cheung explained that to be promoted all he needed to do was recruit a minimum of ten Agents; earn $60,000 in CFYP [“Collected Full Year Premium” - the amount of premiums collected or paid at the particular point in the year in which production is assessed] and sell at least 40 insurance products, at least half of these by his sub-agents.

10 According to Mr Lin, before signing the Organiser Contract he questioned Mr Cheung about the operation of the “Validation Override Plan”, which formed an attachment to it. He claimed that Mr Cheung assured him that if the sales targets set by the Plan were not met demotion would not automatically follow.

11 Mr Lin claimed that he notified Mr Cheung in March 1999 that he had met the recruitment and CFYP targets set out in the Guidelines (Criterion A and B) and therefore was eligible for promotion to Agency Supervisor. He claimed that to his surprise, Mr Cheung then disclosed that AIA would only consider applications for promotion at the end of its financial year, i.e. 30 November.

12 According to Mr Lin the conversation became heated and Mr Cheung eventually admitted that the real reason he would not recommend him for promotion was because if he did, he would no longer be entitled to a share of Mr Lin’s commission. According to Mr Lin, Mr Cheung promised that if he waited another six months he would be promoted automatically.

13 By memo dated 11 March 1999, Mr Cheung rebuked Mr Lin for his “behaviour and speech regarding the matter of your promotion as agency supervisor”:

“[Y]ou should not push your leader to promote you as an Agency supervisor and shout on your leader…You should respect and trust the company and your leader on this matter…The company promoted you as AO giving you the opportunity to build up your team and learn how to be an Agency Supervisor, rather than jealous about how much money your leader made…”

14 Mr Lin claimed that when he complained to AIA State Manager, Katie Lin (no relation) about the memo he was told that she did not approve of Mr Cheung’s decision and promised to promote him in December 1999, irrespective of whether he had Mr Cheung’s support.

15 Meeting with Ms Lin Mr Lin wrote to Ms Lin on 26 April 1999 about the decision not to promote him. In that memo, he also commented on AIA’s structure and recommended that the organisation:

Introduce clearer rules for promotion to Agency Supervisor.

Abolish the rule which restricted promotion to the end of the year.

Introduce greater transparency in its accounting practices.

16 According to Mr Lin, when he met with Ms Lin to discuss this letter she counselled him against sending it on to Mr Gustini because it might hinder his prospects of promotion. He said at that meeting Ms Lin promised he would be promoted to Associate Agency Supervisor in June 1999 and to Agency Supervisor six months later, regardless of Mr Cheung’s views.

17 Mr Lin’s Performance It is not in issue that before his appointment as Agency Organiser, Mr Lin had been a highly successful Agent. He received a number of awards for his sales performance and in 1998 was made a member of AIA’s Million Dollar Club, a coveted award given to highly successful agents.

18 Nor is it in issue that after the issue of promotion was raised with Mr Cheung in March 1999, that the performance of Mr Lin’s team went into a decline. The central point of disagreement between the parties was whether Mr Lin nevertheless met the criteria for promotion to Supervisor.

19 In a handwritten note to Mr Lin, apparently made in July 1999, Ms Lin wrote: “You have done a good job in recruiting. However, being an agency leader your primary objective is to get your agents moving/producing.”

20 In a memo dated 25 July 1999, Mr Cheung advised Mr Lin that AIA’s half-yearly review had revealed a number of problems with his performance and that of his team. He pointed out that Mr Lin’s production had fallen below that expected of a full-time agent. Mr Cheung recommended that Mr Lin attend the Monday meetings of agents, actively recruit new agents and train his own team to be more active. He wrote that if these issues were not addressed, he would not be promoted.

21 In November 1999, Ms Lin summoned Mr Lin to a meeting and raised her concerns with the decline in his “personal production”.

22 Allegations of Discrimination Mr Lin claimed that in or about November 1998 he raised with Mr Cheung his concern that AIA’s regular in-house competitions, referred to as “Challenges”, discriminated against “Chinese-speaking agents”. Mr Lin claimed he was told this was not his business. The following month, Mr Lin again raised these concerns with Mr Cheung and continued to do so throughout 1999.

23 On 31 May 2000, Mr Lin wrote to the Managing Director of AIA and Mr Gustini criticising Mr Cheung’s decision not to promote him. He also raised a number of fresh allegations including Mr Cheung’s alleged practice of not providing agents with copies of their monthly income statements. He advised that he had written to the Anti-Discrimination Board about these matters.

24 On Mr Lin’s account, he publicly criticised AIA for its alleged discriminatory practices at a training meeting of agents held in July 1999.

25 By memo dated 30 July 1999, Ms Lin told Mr Lin that “[a]s we are all part of the AIA big family I am very disappointed by the way you have been treating other family members”. She went on to write, “We trusted your capability and maturity and promoted you as an AO [Agency Organiser], moreover your unprofessional behaviour and speech could ruin our high evaluation of you”.

26 In a memo to Mr Cheung dated 2 August 1999, and copied to Mr Gustini and Ms Lin, Mr Lin asserted that AIA was in breach of “Australian anti-discrimination laws”. He went on to criticise Mr Cheung for failing to disclose to his agents necessary financial information and for pushing them to violate “Australian fair trading legal requirements”. In August 1999, Ms Lin called for a detailed report of those allegations and repeated that request in a memo dated 1 September 1999.

27 In August 1999, Mr Lin met with Ms Lin and her assistant. He said that Ms Lin denied that AIA had been in breach of anti-discrimination laws and told him that he would need to resolve any problems he had with Mr Cheung directly. He claimed that Ms Lin denied having promised to promote him to Associate Agency Supervisor. He requested a copy of the minutes of that meeting but did not receive them. He repeated that request. By memo dated 6 December 1999, Ms Lin advised that the minutes could not be located.

28 Termination of Agreement By letter dated 24 December, AIA notified Mr Lin that his appointment as Agency Organiser had been terminated but he was free to continue to work as an Agent. He was also advised that he had “failed to achieve the minimum requirements as set out in your contract”.

29 On 20 February 2000, Mr Lin lodged a complaint with the Anti-Discrimination Board.

30 By memo dated 6 April 2000, Ms Lin put Mr Lin on notice that his agency contract was in jeopardy due to “lack of production”.

31 By letter dated 16 May 2000, Mr Lin was formally advised that AIA had terminated his agency agreement, citing “failure to achieve the minimum contract requirement as set out in …your Agency Agreement” as the reason for that decision.

Complaint of Race Discrimination

32 Section 9(2) makes it unlawful for a principal to discriminate against a commission agent on the ground of race:

(a) in the terms or conditions which the principal affords him or her as a commission agent,

(b) by denying him or her access, or limiting his or her access, to opportunities for promotion, transfer or training, or to any other benefits associated with his or her position as a commission agent, or

(c) by terminating his or her engagement or subjecting him or her to any other detriment.

33 Mr Lin alleges that AIA discriminated against him on the ground of race by:

Refusing to promote him to Agency Supervisor.

Refusing to promote him to Associate Agency Supervisor.

Terminating his Agency Organiser Contract.

Terminating his Agency Contract.

34 To succeed in his complaint, which is cast as one of direct discrimination (s 7(1)(a)), Mr Lin must, on the balance of probabilities, establish, in respect of each allegation that:

In the same or similar circumstances, an Agent not of his race would have been treated more favourably ("differential treatment"); and

That one of the reasons for that less favourable treatment was his race ("causation").

35 It may be that he can succeed in proving one of these matters and not the other. That is a matter to be decided on the evidence. The four allegations do not necessarily stand or fall together.

36 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45], the Appeal Panel said that in a case of direct discrimination, differential treatment should be determined before causation as "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". The recent decisions of Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] and Martin v McKensey (No. 2) [2003] NSWADT 126 at [46] questioned the practical difficulties of adopting that approach where the assessment of differential treatment relies on a hypothetical comparator.

Complaint of Victimisation

37 Mr Lin claims that the four allegations listed at paragraph [33] of these reasons, separately and in combination, constitute a complaint of victimisation pursuant to s 50 of the AD Act. Mr Lin must establish that AIA subjected him to a detriment “on the ground” that he made an allegation of race discrimination.

38 The meaning of the words “on the ground of” is critical to the operation of s 50(1). Section 4A has no application to the operation of s 50. Guidance as to what is meant by these words is to be found in those cases that considered the term in the context of discrimination on substantive grounds before the 1994 amendment to the Act that inserted insert s 4A, took effect. The NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1997, (NSW) Report No 92 at [7.155-7.158] notes that before the 1994 amendment, two approaches were generally followed. The first required a determination of whether the unlawful conduct constitutes a “significant factor” in the decision- making process (see O'Callaghan v Loder [1984] EOC 92-023 at 75,499; Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 at 75,569.) The second required a determination of whether one of the “real or operative” grounds for doing the act was a proscribed ground of discrimination. (See the decision of Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at p 106.) More recently in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 43], the following approach was adopted: “it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of ... discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred”.

Scope of Complaints

39 The complaints referred by the President of the Anti-Discrimination Board span the period 29 August 1999 to 16 May 2000. The President refused Mr Lin’s request to accept his out of time allegations.

RACE DISCRIMINATION

CLAIM 1: FAILURE TO PROMOTE TO AGENCY SUPERVISOR

40 Mr Lin’s case is that AIA, through Mr Cheung and Ms Lin, failed to fulfil its promise that he would be promoted to Supervisor. He asserts that Mr Cheung kept moving the goal posts by initially telling him that he only needed to meet Criterion A and B and later, adding the restriction that promotion could only be considered at the end of the financial year. Likewise, it is asserted that Ms Lin failed to honour her promise to promote him to Associate Supervisor, and later to Supervisor. Mr Lin concedes that while his performance had deteriorated in the later part of 1999, at all material times he met the published criteria for promotion to Supervisor. He contrasts this treatment with that afforded “non-Chinese” agents and invites the Tribunal to conclude that one of the reasons for his alleged poor treatment was race.

41 AIA’s answer is that first, the end of the year requirement was not, as Mr Lin suggested, a recent invention. Second, it argued that Mr Lin’s contention that he had met the performance criteria for promotion to Supervisor rested on a flawed understanding of AIA’s practice. Third, it argued that there was a simple reason for the decision not to promote Mr Lin - namely that, despite early promise as an Agent, he proved to be an abject failure as an Organiser.

42 Before considering whether the elements necessary to establish a complaint of race discrimination have been established, a number of factual matters in dispute between the parties need to be addressed. These include the timing of promotions, the performance criteria applied by AIA, Mr Lin’s performance and AIA’s record of promoting Chinese and non-Chinese agents.

A. Timing of Promotion

43 As Mr Lin points out, the Guidelines, Organiser contract and Agency Agreement make no mention of the purported end-of-year promotion rule. According to Mr Lin, he first heard of it when he approached Mr Cheung in March 1999.

44 Mr Gustini’s evidence was that the practice within AIA as at March 1999, was for applications for promotion to Supervisor to be considered at the end of AIA’s financial year, 30 November. He cited administrative convenience as the reason for that practice. He conceded that, on occasion, applications at other times were considered.

45 A document prepared by Mr Lin and tendered in these proceedings sets out details of those agents promoted throughout the period March 1997 to May 2000 (Exhibit A3, Annexure E). This reveals that in most cases as claimed by Mr Gustini promotions took place at the end of the year.

46 While Mr Lin may not have been advised of this practice it would not appear as Mr Lin suggested that the practice was devised to thwart his promotional ambitions.

B. Criteria for Promotion

47 It is Mr Lin’s case that the only criteria for promotion to Supervisor were as set out in the Guidelines. Mr Gustini’s evidence is that an Organiser was also required to demonstrate what he described as “non-quantifiable” factors importantly, a demonstrated ability to mentor and train agents and meet the requirements of the Validation Override Plan.

48 Validation Override The “Validation Override Plan” (the Plan) provided that if an Organiser and their team achieved set recruitment and sales targets, namely a total of 10 new recruits and 83 “cases” over a twelve month period the Organiser would receive in addition to “regular commission” an amount equivalent to 5% of their “Production Benefit Bonus” i.e. the sum of the earned First Year Commission and earned Annual Premium commissions (‘PBB’).

49 It was contended for Mr Lin that the Plan did not constitute a “contract maintenance requirement” and merely set targets which if met would trigger an entitlement to additional commission. This interpretation, it is argued was consistent with the fact that the Guidelines set more modest performance requirements than those set by the Plan.

50 Mr Gustini claimed that in practice AIA saw the Plan as a performance requirement.

51 Non-Quantifiable Factors Mr Gustini’s evidence was to the effect that the position of Organiser was a probationary one designed to assess whether a person who had proved their worth as an agent could go on and prove they had the necessary leadership and management skills to recruit and lead a team of agents. He claimed that AIA gave considerable weight to “non-quantifiable factors” such as loyalty, commitment to AIA, leadership skills and regulatory compliance. In his view the reference in the Guidelines to “AIA approval” indicated that factors other than Criterion A and B were taken into account.

52 AIA contended that even if Mr Cheung had as claimed, promised Mr Lin that promotion would be automatic once Criterion A and Criterion B were met (which is not conceded) the battery of correspondence from Ms Lin, Messrs Cheung and Gustini should have made it clear to Mr Lin that he was expected to do something more than meet his own production targets. Ms Lin’s note to him in July 1999 advising “[b]eing an Agency leader your prime objective is to get your agents moving” made this, argued AIA, abundantly clear.

53 Findings: Criteria for Promotion There is some strength in the argument put for Mr Lin that it is curious that the Guidelines which were expressed to set the criteria for promotion set lower targets than those prescribed by the Plan. The Plan focussed on the number of cases sold, requiring 83 new cases over a nine-month period with 65 of that number coming from members of the Organiser’s team. In contrast the target set by the Guidelines was just under half that. In addition unlike the Plan, the Guidelines set a target for FYP. While both the Plan and the Guidelines set the same overall requirement for the number of new recruits the Plan also set a monthly target.

54 In our opinion the written documentation provided to Organisers did not fully and clearly disclose the criteria on which decisions regarding promotion would be based. Nevertheless the Guidelines read together with the Organiser Contract in our view do not indicate that promotion to Supervisor would be automatic once Criteria A and B were met. Clause 3 of the letter of appointment gives an indication of the expectations placed on Organisers: “Essentially your role is to build your team: to oversee, guide, train and support the agents you recruit to it, developing their confidence and professionalism and thereby enhancing both profitable production and the company’s image in the market place. Please refer to your agency Supervisor for details and guidance.”

55 The wording of Clause 2 of the Organiser Contract would appear to suggest that the Plan was designed to do something more than merely set out a formula for the payment of additional commission. It read:

Qualifying performance criteria for Agency Organiser. A minimum number of new business policies per month must be successfully sold, by you and your agents, and new agents recruited by you in accordance with the attached table . …Failure to achieve or maintain these targets in a given account month will not lead automatically to demotion, however any protracted default may do so and will certainly influence the Director of Agencies’ review of your performance over the 12 month period. [The only attachment to the contract was a one-page document headed “Agency’s Organiser Validation Override Plan” in which was set out a table.]

56 Mr Gustini’s evidence that “non-quantifiable factors” were taken into account is both plausible and consistent with the reference in the Guidelines to “minimum criteria” and the extracts from the Organiser Contract as set out above. Notwithstanding the apparent inconsistencies between the Guidelines and the Plan, having regard to Clause 2 of the Contract and the evidence about the practice within AIA, we accept that there was an expectation that Organisers seeking promotion would comply with the requirements set by the Plan.

C. Mr Lin’s Performance

57 As noted it is not in issue that Mr Lin had been a highly successful agent. Nor is it disputed that after his confrontation with Mr Cheung in March 1999 his performance and that of his team went into decline.

58 Tendered in these proceedings was an analysis undertaken by both parties of Mr Lin’s performance as at December 1999 as measured against Criteria A and B.

59 As the Table below indicates the only material point of difference relates to the target for recruitment of new agents. On AIA’s analysis Mr Lin did not meet that target while Mr Lin concluded that he had. The discrepancy can be explained by the different periods used by each. AIA’s figures were taken from the period 12 months to 30 November 1999 while Mr Lin took his from the period commencing from the date of his appointment to Organiser. As is apparent Mr Lin exceeded Criterion B.

A. Criterion - Minimum of 10 new agents

AIA’s analysis - 4 new agents recruited

Mr Lin’s analysis - 12 new agents recruited

B. 1 Criterion - $60,000 FYP (50% FYP from new agents)

AIA’s analysis - Total FYP $130,000, $90,000 from sub-agents

Mr Lin’s analysis - Agreed

B. 2 Criterion - Minimum 40 new cases

AIA’s analysis - 77 new cases

Mr Lin’s analysis - Agreed

C. Criterion - Nomination by Agency leader

AIA’s analysis - no

Mr Lin’s analysis - not known

60 Ms Chuah, an employee of AIA gave evidence in these proceedings and provided an analysis of the performance of individual members of Mr Lin’s team. She pointed out that Lin Yu Liu and Xu Dong Ke who worked as a partnership were responsible for the bulk of sales. (The Liu/Ke team wrote to AIA on 1 November 1999 and complained about Mr Lin’s lack of support and requested a transfer to another team.)

61 Figures tendered by AIA for the 12 months to December 1999 show that with the exception of that team and Mr Lin himself none of Mr Lin’s agents sold any policies after February 1999 (Exhibit R2, Schedule 1, Annexure K). AIA conceded that two agents, Xi Zen and Yu Xian Fan, were missing from that document however their results show they did little to improve the overall performance of Mr Lin’s team: one sold four policies which were all cancelled on the same day and the other sold none. This means that with the exception of the Liu/Ke team and Mr Lin himself, Mr Lin’s agents had effectively been inactive for over nine months. Those figures also reveal that Mr Lin’s personal performance as an agent had declined throughout 1999. From August to November 1998 he sold a total of 19 new cases, from December 1998 to May 1999, he sold a total of 21 new cases, eight of those in the first month. From June to November 1999 he sold a total of seven new cases.

D. The Challenges

62 AIA held regular in house competitions for agents known as “the Challenges”. It is common ground that lower sales targets were set for non-Chinese agents in these competitions. Mr Gustini asserted that the reason for this was because non-Chinese agents operated in a fledgling market where it was more difficult to meet the sales targets set for the Challenges. He claimed that the reason for the differential target was to “level the playing field”. He also claimed that it was only in this area where different performance criteria was applied.

63 While the Challenges do not form part of the complaints we are required to determine they indicate that in one area at least, AIA used “race” to assess and reward performance. Whether that practice was reasonable is somewhat beside the point. The issue is whether that allegedly discriminatory practice (which is not conceded) was confined to this area.

E. Promotion of “Chinese” v “Non-Chinese” agents

64 Mr Lin analysed the performance of all Organisers promoted to Supervisor in the period March 1997 to May 2000 (Exhibit A3 paragraphs [56] to [66]). From that group he identified five “non-Chinese agents” none of whom he contended met Criterion A and B. He contrasted that with the 20 “Chinese agents” promoted within that period. On his analysis all met both criterion. (See Exhibit A3 paragraphs [67] to [89]).

65 He claimed that this pattern was mirrored in the decisions relating to demotion (Exhibit A3 paragraphs [95] to [104]). He identified six “Chinese” Organisers who were demoted. In contrast no “Non-Chinese” agents were demoted despite a number not having met the targets set by the Guidelines.

66 Mr Lin contended that that analysis brings into question AIA’s claim of equal treatment for all ethnic groups.

67 AIA attacks Mr Lin’s analysis on two main grounds. First it contends that “Chinese” as defined by Mr Lin is not a “race” for the purpose of the AD Act. The definition advanced for Mr Lin it was argued was at best vague and to the extent it could be discerned appeared to mean people who originally came from the People’s Republic of China, had been Chinese citizens and spoke “Chinese” (sic). “Non-Chinese” persons were defined to mean persons who did not come from the Peoples Republic and did not speak “Chinese”.

68 Second, AIA argues that Mr Lin’s flawed analysis was compounded by his failure to produce any evidence to support his assertion that those agents he identified as “Non-Chinese” in fact belonged to that group.

69 The approach adopted by Mr Lin of categorising agents as Chinese and non-Chinese, broadly reflected that employed by AIA. That however does not excuse Mr Lin from identifying the race he belongs to, and that which he is to be compared to, for the purpose of identifying the relevant race(s) under s 4 of the AD Act.

70 We will return if necessary to consider whether these definitional issues are fatal to Mr Lin’s complaint but will first consider whether the elements of causation and less favourable treatment are made out. For the purpose of this exercise we will adopt the categorisation advanced by Mr Lin.

Less favourable treatment

71 It falls to Mr Lin to establish that he was treated less favourably than an Agency Organiser who was not of his race but in the same or similar circumstances to him.

72 There is nothing in the voluminous material tendered in these proceedings to indicate that AIA applied different criteria to agents of different “races” except in relation to the Challenges. On paper at least the same commissions were paid, the same pro forma contracts issued and the same promotional guidelines applied.

73 However while there is no evidence of any formal policy exempting “non-Chinese” agents from the rigour of Criterion A and B, the analysis provided by Mr Lin suggests that all other things being equal this in fact occurred.

74 The comparators we understand to be advanced by Mr Lin are the five non-Chinese agents promoted to Supervisor in the period March 1997 to May 2000. An analysis of the monthly and annual figures for these agents reveals that none were in the same or similar situation to Mr Lin. Critically while Mr Lin’s annual figures were better than all five agents, none suffered from the sustained inactivity that characterised his team throughout the second half of 1999.

75 For these reasons we are not persuaded that these agents provide a proper basis on which to compare the treatment afforded Mr Lin.

76 Even had a more appropriate comparator been advanced such as a hypothetical “non-Chinese” agent with a comparable record of personal and team performance Mr Lin’s treatment in our view could not be considered “less favourable”. We think it unlikely that AIA would have promoted someone who had demonstrated the performance trajectory evident in Mr Lin’s team. In reaching that conclusion we have had regard to the evidence of the somewhat gentler approach to the promotion and demotion of “non-Chinese” agents. Had Mr Lin’s performance not deteriorated to the extent it had or had there been some hint of future improvement our conclusion might have been different. There is no evidence that by the end of 1999 he had developed a strategy to remedy the problem or even acknowledge that that there were any shortcomings. Given that by December 1999 Mr Lin’s own performance and that of his team had gone into free fall with no apparent improvement in sight we are not persuaded that AIA would have turned a blind eye to those shortcomings even had AIA considered Mr Lin to be “non-Chinese”.

Causation

77 While there is some evidence of “non-Chinese” agents receiving different treatment we are not persuaded that from this it can be inferred that one of the reasons Mr Lin was not promoted was because of his race.

Summary

78 For these reasons this allegation of unlawful race discrimination is not substantiated.

CLAIM TWO: PROMOTION TO ASSOCIATE AGENCY SUPERVISOR

79 Mr Lin claims that Ms Lin promised to promote him to the position of Associate Agency Supervisor in June 1999. He claims that he raised the issue with her again in August 1999 and she said that the reason he wasn’t promoted was because she thought he had rejected her offer. In November 1999 on Mr Lin’s account he told Ms Lin that if he was not promoted to that position he would lodge a complaint with the Anti-Discrimination Board.

80 An examination of the chronology reveals that the only conduct that falls within the scope of the complaints referred by the President, is the alleged decision not to promote Mr Lin to Associate Agency Supervisor in December 1999.

81 Taking Mr Lin’s evidence at its highest and accepting that Ms Lin promised to promote him to Associate “regardless of performance”, we would not be persuaded that race played a role in the decision not to honour that “promise”. In our view the reasoning advanced at par. [77] above applies equally to this allegation.

82 Accordingly this allegation of unlawful race discrimination is not substantiated.

CLAIM THREE: DEMOTION TO AGENT

83 The stated reason for Mr Lin’s demotion was his alleged failure to “achieve the minimum requirements as set out in your contract”. Mr Gustini claimed that this was a reference to the Validation Override Plan. He claimed that the Plan was a “contract maintenance requirement” or a term of the contract which Mr Lin had not met. Mr Lin contends in effect that this purported requirement was a recent invention designed to hide the real reason for AIA’s decision.

84 We have concluded that the Plan constituted a contractual requirement, but even if we are wrong on this point, it seems to us that Mr Lin’s overall performance was the real reason for the decision to demote him. Given the probationary status of the Organiser position demotion was the logical next step following a decision not to promote.

85 Having carefully examined the evidence including Mr Lin’s analysis of the treatment afforded “non-Chinese” agents we are not satisfied that the decision to demote him constituted less favourable treatment or, that one of the reasons for that decision was race.

86 Accordingly this allegation of unlawful race discrimination is not substantiated.

CLAIM FOUR: TERMINATION OF AGENCY ORGANISER

87 By memo dated 6 April 2000 Ms Lin put Mr Lin on notice that his agency contract was in jeopardy due to “lack of production”. She wrote “an agent must complete at least 12 cases in the first year, 18 cases in the second year and to have 10 active months within a year. According to our record you are not meeting the requirement”.

88 In an internal memo dated 8 May 2000 Ms Lin recorded as the reason Mr Lin’s contract was to be terminated, “No production for more than five months”.

89 By letter dated 16 May 2000 AIA advised Mr Lin that his agency agreement had been terminated because of “failure to achieve the minimum contract requirement as set out in …your Agency Agreement”.

90 It is not in issue that for the period 1 December 1999 to 10 May 2000 Mr Lin sold only one policy and that his CYFP was just over $4000. Nor is it in issue that he had not complied with the contract maintenance requirements set out at Schedule 3 of the Agency Agreement for the period, i.e., 1 December 1999 to 28 February 2000.

91 Mr Lin argues however that AIA’s actions were precipitous, as at the date of the termination he had not fallen foul of the “contract maintenance requirements”. This argument turns on the wording of Schedule 3 which provides:

Achievement of the minimum contract maintenance requirements will be assessed upon performance at the quarterly dates of February 28, May 31, August 31, and November 30 subject to a Year To Date basis [emphasis added].

92 It is argued for Mr Lin that “Year To Date” in that context means the twelve months prior to the date of quarterly review. It is contended, that the assessment of performance is based on this longer period, so that fluctuations can be evened out and a drastic decision such as termination is not taken without the benefit of a considered 12 months analysis. Applying that analysis it is asserted Mr Lin did meet the contact maintenance requirements. It follows, argued Mr Lin, that the stated reason for his termination cannot be accepted and that it can be inferred that the decision was made for other more sinister reasons.

93 In addition it is argued that the reason for the termination cited in Ms Lin’s letter of 6 April 2000 was spurious as the requirements she referred to namely “12 cases in the first year, 18 cases in the second” was not a mandatory performance requirement but instead the basis on which commissions would be paid (see Agency Agreement Schedule 2).

94 If the interpretation advanced on behalf of Mr Lin is accepted it may be that as at May 2000 he had met the “minimum contract maintenance requirements”. If so, it may be that in deciding to terminate him, AIA was in breach of its contract with Mr Lin, although this seems unlikely given the broad discretion conferred on AIA by clause 17.2 of the Agreement to terminate an agent.

95 But in any event the uncontroverted evidence is that by May 2000 Mr Lin’s performance had virtually come to a stand still. He had sold one policy since December 1999. He was on notice that that was unacceptable. He took no steps to address this situation. In these circumstances we could not be satisfied that race played any role in the decision to terminate or that the treatment afforded constituted less favourable treatment.

96 Accordingly this allegation of unlawful race discrimination is not substantiated.

Complaint of Victimisation

97 One of the issues in dispute is when AIA became aware that Mr Lin had made allegations of discrimination. The evidence makes plain that Ms Lin the primary decision-maker on whose recommendation the decisions not to promote, demote and eventually terminate were made was at all material times fully aware of Mr Lin’s allegations. It seems to us more likely than not that despite his claims to the contrary Mr Gutsini was also aware of these allegations at least by the time the four offending decisions were made.

98 The tone of the correspondence from Mr Cheung and Ms Lin to Mr Lin does not suggest that Mr Lin’s allegations were either welcomed or overlooked. Mr Lin was consistently rebuked for disloyalty to the “AIA family”. This was an organisation where “loyalty” and respect for “the leader” and the “AIA family” was encouraged. The chorus of the AIA song gives an indication of the value placed on unity and loyalty within the organisation,

This is AIA. This is where we are from

We’ll sing in one voice

And we’ll sing one song.

Our company is one from now on.

We are AIA. We are big and strong.

99 As conceded by Mr Gustini he would be concerned if an individual agent was found to be agitating within the body of agents about promotion and demotion issues being determined by race. It would be unlikely in our view that an organisation such as AIA which as part of its business plan was targeting various ethnic communities would have welcomed public allegations of the type made by Mr Lin.

100 That being said it is to be recalled that race was not the only issue Mr Lin complained about. On his account he told Mr Cheung that personal greed was the true reason he did not put his name forward for promotion. In August 1999 he went on to tell AIA management that Mr Cheung had violated “Australian fair trading legal requirements”. Ms Lin was also criticised for not taking action against Mr Cheung and tolerating discrimination within AIA.

101 There is no direct evidence that factors other than performance and that of his team played a role in any of these decisions. We think it can be inferred however that Mr Lin had not endeared himself to AIA management by publicly raising the discrimination issue. It is possible that as a result he began to be seen as something of a liability within the organisation.

102 Had Mr Lin’s performance been more marginal it is possible that his persistent criticism of AIA and its allegedly discriminatory practices might have tipped the balance in the four offending decisions. However in our view his performance could not be described as marginal. His activity and that of his team had effectively ground to a halt and there was no improvement in sight. We are therefore not satisfied on the evidence before us that his allegations of discrimination were a “significant factor” or had a real causative effect in any of the decisions.

103 Accordingly the complaint of victimisation is not substantiated.

Costs

104 AIA foreshadowed that if successful it intended to apply for costs.

105 If an application for costs is made within 14 days of the date of these orders the matter to be set down for a directions hearing at a date to be fixed by the Registrar.

Orders

1. The complaint of victimisation is dismissed.

2. The complaint of race discrimination is dismissed.