CASE ANALYSIS
QUESTION 1
From the legal perspective, were there any abuses of power by the management and breach of fiduciary on the part of the directors?
In our opinion, there are abuses of power by the management in the company of Delima Enterprise Sdn Bhd. The management should act in the best interest of the company not the best interest of the director. For example in this case, the management uses their power to withdrawals several money from the company without proper documentation. It is illegal because management is not allowed to take money without authorization. Another abuse of power use by management is they claimed the personal vehicle expenses charged to the company. The management should be aware of separate legal entity. All this problem occurs because lack of internal control and no segregation of duties among staff in the Delima Enterprise Sdn Bhd.
Director plays an important role in the management of the company and adopting policy decisions to the company. Therefore the directors have certain important duties while conducting company business. There are three types of fiduciary duties of company director which are duty of reasonable care, skill and diligent, duty to act in good faith in the best interest of the company and duty to avoid conflict interest. Director is responsibilities to fulfill their fiduciary duty and owes a corporation duty of trust and is bound to act in the best interest of its shareholders.
The first duties that the directors must be fulfill is duty of reasonable care, skill and diligent. Duty of reasonable care is directors must take reasonable step to equip themselves with all information about financial status and business. Director also must have duty of skill which is standard of skill possessed by people of the same qualification and experience. Duty of diligence also one of the duties of the directors must be exercise. In this case, directors’ breach of duty of care and skill due to the company do not have Standard Operating Procedure (SOP). Even director only have secondary school background, directors must take reasonable step to search the important of SOP and to provide proper standard in the company. Directors also can obtain legal advice from the expertise in order to fulfill the duty of reasonable skill and diligent. Directors also breach duty of reasonable skill when they were made over payments to the Trade Creditors. This problem will not happen if directors exercise their duty of care to reasonable skill. They should not careless in doing their duty because it will incur more expenses to the company.
Another duty that must be fulfilled by the auditor is to act in good faith in the best interest of the company. In a good faith means directors must act bona fide in the best interest of the company. From this case director made several overpayment to Trade Creditor. Although the directors argue that the overpayment is the best interest of the company but directors not exercise bona fide to the company. Directors should make investigation or asking the creditors about the payment. The overpayment made to the creditors will incurred difficulties for the accountant or auditor to record the payments. Besides, directors not deducted the EPF contribution for contracts workers. Workers interest also need to be protected because workers also part of the company. It shows that directors do not act the best interest of the company and breach the fiduciary duty.
Duty to avoid conflict interest is one of the duties that must be fulfilled by directors. Director must not place themselves in a position of conflict where a personal interest conflict with their duty and act in the best interest of the company. In this case, director breach duty to avoid conflict of interest when directors claimed personal expenses charged to the company. Directors misuses the power by using their position to take money from the company for other purposes without disclose any transaction. Director also has a duty to disclose any direct or indirect personal interest in any proposed transaction. From this case, the director takes several withdrawals from the company without proper documentation. It is not allowed for director to take money without authorization even though the director is owner of the company. The director should disclose whatever transaction they take from the company to avoid breach of duty to the company.
QUESTION 2
Who should be held responsible and accountable?
From our point of view, En Zayed which is CEO and principle shareholder is responsible and accountable for the problem occurs. En Zayed is responsible for the management of the company and made a decision to the company. En Zayed should provide training to the staff who do not have experience and not familiar with the provision of the Company Act and accounting standard. Encik Zayed must implement SOP in order to get better guideline in handling the business and proper financial statement.
QUESTION 3
Could the Audit be completed soon without any qualification? From the financial perspective, discuss and recommend objectively the most appropriate solution for Delima Enterprise Sdn Bhd (DESB) financial management and operations.
Yes, the audit could be completed soon without any qualification if Cik Amy follows every step of auditor’s instruction and adjusts the financial statement of the company in following the recommendation of the auditor along with the strong evidences. For instance in this case, Cik Amy have recorded a lot of wrong transaction and some of the amounts are overstated and understated like the cash and bank balances in Cash Book are overstated by RM 70,000 which RM 40,000 for the year 2004 and RM 30,000 for year 2005 as compared to the Bank Statements found by the auditor. So, when the auditor recommended the overstated amount should be reconciled or written-off to Profit and Loss Accounts, strong evidences should be provided by Cik Amy as Finance executive. Therefore, the discussion is very good for the auditor in making a proper judgement and Cik Amy in ensuring that the company is free from any frauds or misstatements. If Cik Amy does not follow the instruction of the auditor, the audit works are very hard and difficult to be completed as soon as possible. Any adjustments and recommendations made by the auditor should be taken seriously by Cik Amy (Finance Executive) in order to ensure that any wrong recording transactions can be corrected and there are no any overstated and understated amounts recorded.
QUESTION 4
What should be done to improve the leadership and management of DESB? Constructively restructure the organizational and draft the applicable standard operating procedure for the company to operate effectively.
The company have an internal control failure because of lack of leadership and management. EncikZayed as the owner holds the key to improve his leadership and management by implementing several common features of a proper internal control.
1) Should have higher management integrity - the most important thing is the management integrity which will be setting the flow of the organizations. Therefore, it is highly recommended to EncikZayed to prepare and identify business objectives that will be communicated throughout the organizations in order to ensure that everyone in the organization has a clear understanding of the roadmap to the business future. Having clear business objectives will promote better internal control in all areas as everyone will know their own roles and responsibilities towards the company.
2) Should not be very reliance-In the business, EncikZayed is very reliant on his employees. Thus, it is vital for the management to hire competent personnel. Current employees hired by EncikZayed are not competent enough to properly record accounting transactions. Hence, it is advisable to Encik Salam, the Human Resource and Administration manager of the company to recruit properly trained financial reporting team for better presentation of financial statement. In addition to that, Encik Salam might want to consider hiring management expertise to improve the management of the company.
3) Should have clear segregation of duty-Another fundamental element of internal control is the segregation of duties (SOD). The basic idea underlying SOD is that no employee or group of employees should be in a position both to perpetrate and to conceal errors or fraud in the normal course of their duties.In general, the approval function, the accounting/reconciling function, and the asset custody function should be separated among employees. This is to ensure that no employee to be in a position of both to commit fraud and to hide it. As in the case, it is mentioned that PuanHashimah was responsible for all finance related matters where she was in charge for both approval and payment of salaries. From the analysis, it is found that improper SOD leads to the violation of separate entity concept where the personal vehicle expenses were charged to the company during the year 2005. Therefore, proper SOD is a critical element that needs to be implemented in the management in order to have an effective internal control.
4) Should have proper record maintenance – Record maintenance is also a component of effective internal control. It is important to maintain records in order to ensure proper documentation exist for each business transactions. As the Operations Manager of Delima Enterprise SdnBhd, PuanBalqis was responsible for improving the current record maintenance of the company. Record maintenance includes storing, updating and safeguarding both tangible and electronic records. The management can further contribute by investing in appropriate system, technology and reporting system to encounter and handle challenges arise in a dynamic business environment.
5) Should have proper safeguarding’s assets -Safeguarding company’s assets is another prominent feature in the internal control of the company. Company’s valuable assets must be safeguarded against unauthorized acquisitions. Typically, access controls namely locked door, card key system, computer password and data encrypted are the best way to safeguard the assets. Thus, it is highly suggested to EncikZayed to invest in safeguarding the asset for better internal control of the management.