James Hardie Industries Limited Case Study

The facts of the case

There are a number of key players in this case. First, we have actuaries, Trowbridge Consulting. This was one of the major Australian actuarial organisation and with extensive experience consulting in cases of asbestos.

Trowbridge had served James Hardie Industries Limited (JHIL) for a period of years when it estimated the future costs of asbestos related claims. Actuaries provide professional services to society.

This implies that actuaries also have professional responsibilities to the public. However, actuaries still face challenges related to conflict of interest and independence and have serious challenges that should prompt a full debate (Gunz, McCutcheon and Reynolds, 2009).

Actuaries’ main duty remains a service to the public. However, their employers are management. Still, their duties vary considerably based on a case-by-case basis (Gunz and Laan, 2011).

In 1996, Trowbridge estimated that the cost of asbestos related claims would reach $ 250 million.

However, following vague terms used in the report and that the company was only obfuscating and failure of JHIL to get listed in the US together with increasing numbers of claimants’ costs, the relationship between Trowbridge and JHIL became strained.

Trowbridge report remained a draft and JHIL wanted to use it to convince future insurers. However, Trowbridge insisted that could only happen under an assurance of indemnity.

Second, JHIL case is significant for this report. The company shows how conflict of interest and pressure on professional groups can occur.

It also shows how organisations can resort to obfuscating reports for strategic goals due to financial difficulties. Further, it also shows how organisations can comprise vague and rarely actionable professional ethics and codes.

JHIL case demonstrate how relying on actuaries that are prone to compromise can destroy the profession.

We can also notice the aggressive tactics of the company, and its dependence on actuarial firm that wants to enhance its relationship financially and professional can challenge professional ethical standards.

JHIL was the dominant firm in production of asbestos in Australia. JHIL emerged dominant in terms of exploiting asbestos mineral, useful commercial properties of the mineral, and realisation of asbestos serious and harmful health concerns.

However, the company ignored such health problems till the removal of asbestos in the market. Most workers lodged claims for compensation due to asbestosis. However, JHIL remained adamant and denied any case of negligence.

Third, the public is significant for this case. The company mined and processed asbestos under questionable circumstances that ignored health and safety concerns of workers.

In addition, JHIL used primitive equipment in poorly ventilated environment for its operation. As a result, several workers demanded compensation due to conditions of asbestosis. However, JIHL denied any negligence in its operation.

JIHIL hired Trowbridge to provide future costs and estimate for compensation and for potential insurers, and listing in the US. However, the report did not meet the minimum threshold set by the US.

According to them, the report was obfuscating, vague, and non-professional without clear representation of necessary details. This report was to serve the interest of the public i.e. asbestosis claimants. Actuaries protect interests of the public whereas auditors protect shareholders’ interests.

The duties of these two bodies can result into conflict of interests. Unlike auditors, actuaries’ duties vary considerably depending on cases. This implies that it is difficult to gauge possible consequences and conflict of interest, though actuaries rely on professional standards.

In order to compensate the affected public, JIHL set up the Medical Research and Compensation Foundation (MRCF) to fulfil this role.

However, the company ignored Trowbridge claimants’ estimates, and grossly underfunded MRCF with A$ 293 million instead of estimated $ 2.2 billion necessary.

Fourth, JILH is in Australia under listed companies. JIHL has been in asbestos business in Australia ever since the discovery of the mineral and realisation of its commercial benefits.

The company has used substandard equipment and poorly ventilated structures that exposed workers to serious health problems. The company also eyed the US market for listing. This required actuarial report. However, the poor quality of the report failed JHIL for listing.

Firth, the significant period of this report emerged in Australia when Johns-Manville Corporation invoked Chapter 11 Bankruptcy protection in the US in the year 1982. Such a legal protection lacked in Australia.

Consequently, asbestos firms became liable and exposed to legal challenges in relation to asbestos claims during 1980s. This implied that workers could successfully sue companies for compensation based on damages.

Sixth, the case of Trowbridge and JHIL is significant in understanding the weak professional codes, ethics and corporate tactics, and possible conflicts of interest related to professional and financial issues.

The company had ignored workers’ claims. It had manipulated its actuarial firm, and continued to use the revised report for insurers.

However, Trowbridge insisted that such actions could only take place under an indemnity. These were major causes of conflicts of interest between JHIL and actuary (Minty).

In order to settle such claims, the company established MRCF in 2011, a poorly funded body to oversee compensation of the victims. This implied that MRCF was technically bankrupt from inception due to underestimation of value of claims and its long-term liabilities.

This was an act of lack of professional conduct and ethics between JHIL and Minty through gross negligence of the victims. Later, MRCF understood the action of the JHIL management and the board. JHIL argued that assessment of asbestos liabilities was adequate at all times.

At the same time, the company dismissed MRCF as a different legal entity that it could not control and was not its responsibility.

The case of poor funding became an issue in the public domain as it acquired a new dimension. Victims, activities, trade unions, politicians, and media joined hands and pushed the government of the State of New South Wales to form a Commission of Inquiry in 2002.

The Jackson Inquiry had to investigate funding issues and knowledge of JHIL board and management on the same.

We can notice the role of Minty in the process. The actuarial firm did not take full professional responsibilities for its report and assumed the use of the report.

In fact, Minty acted under instructions from JHIL and prepared whatever the company needed. For instance, Minty prepared a report with missing data of several months to serve current purposes.

However, Jackson Inquiry revealed the significant of missing data: “Trowbridge, with knowledge of the Current Data, would have increased its estimated 20 year NPV from $286 million to $373 million, and the total (50 year) NPV from $322 million to $437 million” (Gunz and Laan, 2011). These acts of flawed actuarial advice ruined professional career of Minty.

How would you describe the ethical behaviour of management towards asbestos victims?

JHIL had long known harmful effects of asbestos on its workers. However, the company ignored such health concerns. In addition, the company operated in a primitive manner with regard to its processing and manufacturing plants as there were no ventilation and protection for its workers (Gunz and Laan, 2011).

Organisational focus on maximising profits is compelling that firms like JHIL have limited time to understand moral content in their behaviours and decision-making.

This suggests that there is a breakdown of organisational conducts and morality, particularly where conflict of interests is a factor.

Ethics should convey integrity and value of an organisational service to the public. This shows effective management of an organisation. There are organisations that may commit themselves to Code of Ethics in dealing with workers. Unfortunately, this is not the case in most organisations.

Ethical behaviour defines what is morally acceptable in the public domain. The challenge is to identify what is right or wrong at the moment.

However, the significant point is that the public expects organisations and management to behaviour according to the highest level of ethical standards.

In the case of JHIL, the issue of unethical behaviour has eroded the company’s ethical responsibilities to its workers. This results into ethical crises that also affect other firms such Trowbridge and MCRF that deal with the company. At the same time, it also relates to the plight of victims of asbestos.

JHIL is an example of a company that intentionally exposes its workforce to harmful effects of asbestos, adamantly refuses warnings, manipulates actuarial reports for insurers, and sets up a poorly funded organisation to compensate its victims.

Some of these practices might be common in most organisations, but they serve to remind us of unethical behaviours and challenges that organisations do not know how to handle.

Ethical behaviour seems to have no specific standards. This is because of different environments that organisations conduct their activities.

For instance, before the issue of Johns-Manville Corporation of 1982 in the US, Australian workers could not pursue litigation against exposure to asbestos.

In the case of JHIL, we can see that the management failed in handling ethical issues that arise as a result of its operation. Still, JHIL management failed to comprehend underlying issues that arise due to ethical practices.

What should be the company’s responsibilities in this situation?

Organisational culture should promote acceptable, ethical behaviours and eliminate cases of unethical behaviours. We must note that most organisations tend to avoid ethical behaviour due to costs implication.

This was the case of JHIL when it manipulated the actuarial firm to provide undervalued reports and further set up a poorly funded MCRF. Consequently, the JHIL management knew it could gain financial advantages from unethical behaviours.

However, as the case of JHIL demonstrates unethical behaviours have short-term gains. In the long run, the company did not gain or operate because of its unethical behaviour. Minty, the actuary also ruined his career.

The fact is organisations that do not meet expectations of society find it difficult to operate and thrive. Thus, organisations should find ethical behaviours acceptable among the public and promote such cultures.

Most scholars have recommended strategies that can enhance ethical behaviours among management (Harrington, 1991; Alder and Bird, 1988). JHIL management should take responsibilities and compensate victims of asbestos exposure.

This can only occur through encouraging acceptable, ethical behaviours. We can also notice that there was a lack of formal codes that existed in actuarial professionals. As a result, firms like JHIL can compromise such entities in their favour.

JHIL should also enforce internal regulations that can guide management in order to act according to code of ethics and standards.

Study by Stead, Worrell, and Stead noted that top management of an organisation plays significant role in influencing ethical behaviours of an organisation (Stead, Worrell and Stead, 1990).

This is because employees tend to emulate actions of top management. JHIL management lacked the knowledge of ethical behaviour and how it can enhance ethical practices in an organisation. JHIL management ethical behaviour towards victims of asbestos shows a serious lapse of ethical codes and standards in the firm.

It is also necessary to note that ethical behaviours lack significance in an organisation if people who make decisions do not practice or implement them. Thus, management support is necessary in reinforcing ethical codes in an organisation.

Most employees hold managers in high esteem. As a result, behaviours of such managers have significant impacts on behaviours of their juniors.

Managers should reinforce behaviours that they desire. This implies that behaviours of JHIL executives reflect their desired and reinforced behaviour towards asbestos victims.

On the other hand, if JHIL management want to enhance and promote ethical behaviours, then its management must accept responsibilities that come with acceptable, ethical behaviours including financial responsibilities.

JHIL ignored ethical behaviours in dealing with asbestos victims. Consequently, the company faced legal battles and subsequent commission of inquiry with possibilities of punishments.

JHIL management ought to have understood principles of ethical behaviours, and key issues that could have enhanced development of ethical standards in dealing with the asbestos victims.

We have noticed that JHIL exploited loopholes in systems regarding reinforcing codes of ethics and standards in Australia. However, management should demonstrate its commitment to best practices by implementing acceptable standards in its plants (Cooke, 1991).

There is also the principle of organisational dissent. In this context, individuals within an organisation rise against unacceptable ethical behaviours, challenge the status quo and promote acceptable practices. Graham observed that organisations that have a strong commitment to ethical behaviours should embark on principled organisational dissent (Graham, 1986).

Organisations that intend to promote ethical behaviours in handling their victims must develop policies and training programs that promote ethical activities within organisational operation and decision-making.

Organisations that intend to demonstrate ethical practices must allocate adequate resources to promote ethical behaviours in terms of training, particularly in situations where conflicts of interest influence decision-making.

Thus, an organisation should develop strategies of dealing with ethical behaviours and identify all possible facts and consequences of unethical behaviours.

Conflict(s) of interest relating to David Minty and/or Trowbridge (the firm of actuaries) and JHIL

“To ensure the integrity and professional standing of Actuarial Advice, all Actuarial Advice must be impartial” (Institute of Actuaries of Australia, 2007). This is the provision of IAA regarding professional conduct of actuaries.

However, Minty failed this standard. JHIL formulated methods of dealing with Minty i.e. the company compromised professional obligation of Minty.

This was the case of powerful client dictating actions of a professional body. The report revealed aggressive management tactics and pressure from JHIL in dealing with the actuarial firm.

Minty faced conflict of interests in terms of professionally serving the public against serving his powerful and domineering client. This was how pressure and compromise of professional independence occurred.

Minty also failed to adhere to professional codes of conduct set by IAA. These were issues of financial, strategies, and obfuscation. In all, Minty failed to act in the best interest of the public, and wrongfully advising his client.

How should Trowbridge have dealt with these conflicts?

Studies have recommended several ways of handling conflicts of interests. As a result, there are various stages of dealing with conflicts that may compromise professional integrity of advisors.

In the case of Minty, most problems occurred due to lack of clear understanding between the actuarial and his client about roles and expectations of both parties.

Bloom and Rappaport suggest the importance of an engagement letter with clear contents and how to negotiate with clients (Rappaport and Bloom, 2007).

The crucial step in handling conflict of interest involves raising the issue. Mint ought to have raised issues that bothered him with JHIL. This is a process of clearly expressing possible problems.

At the same time, Mint must also pay attention to JHIL point of view. As we can see, Minty failed to raise crucial issues about consequences of their unethical behaviours.

Once a party raises an issue and takes a position, it must also identify underlying interests that may result into conflicts. The best method of discovering interests is through inquiries.

In the case of Minty, it was professional obligations that conflicted with the demands of Minty. Minty chose to act unethical because of self-interest and ignored professional code of conducts for actuaries.

We also have a case of Minty professional responsibility to act in the best interest of the public suffered drawbacks due to demands of JHIL.

This unethical push originated from JHIL. JHIL used Minty to falsify reports that the company intended to present to the US for listing, and kept another report as draft for presentation to possible insurers and later to the board of MRCF.

This was a case of conflicting loyalty to JHIL. In such cases, Minty should have engaged uncompromised ethical behaviour.

Minty failed to understand his responsibility of advising and informing JHIL of possible consequences of their actions.

As a professional body, Minty failed to act impartially so as to avoid the case of bias in serving the public (Institute and Faculty of Actuaries, 2012).

Assessing possible consequences and seriousness of issues remain significant in mitigating conflict of interest. Minty did not account for the public in his decision.

In addition, also failed to notice how their decisions would affect stakeholders involved in the process.

In most cases, mitigation actions against conflicts of interests and unethical behaviours are difficult to define particularly where the code of conducts are weak or do not exist.

In exercising any mitigation approach, Minty could have based his judgment regarding possible consequences of conflicts of interest. The failure to act in order to avert possible conflicts of interest may indicate that Minty regarded those issues as insignificant or indirect.

Organisations should not assume that failure to act is enough in handling situations of conflicts of interest. This is because commissions of inquiries usually assess cases of unethical behaviours, and cases that involve professionals who act or make decisions unlawfully or let their professional conduct be compromised. In addition, assessment also reviews how professional reputation may suffer damages.

The case of Minty and JHIL is difficult because of both parties had conflicts of interest. In the public view, Minty action of continued involvement in the flawed process where the client influenced his work considerably was wrong. He recognised conflicts of interests, but failed to consider any mitigation action.

Professionals who act within professional codes of conduct normally withdraw from situations that lead to conflicts of interest. This is crucial in managing conflicts of interest at an individual level or as professional entity.

Professional codes of conducts require that professional actuaries maintain the highest level of professional impartial and independence from any possible controls or manipulation from powerful clients.

Thus, any professional actuary should act professionally with regard to matters that may subject their actions to scrutiny and call into questions their conducts. This implies that professionals like Minty should adhere to Code of Professional Conduct when providing their services to clients.

This code has provisions on how actuaries can handle cases that may result into conflicts of interest. Such provisions account for all manner of conflicts of interest, such as real, potential, or imagined.

Such provisions are objective in approaches to help professionals handles such temptations. Thus, professionals are free to raise issues regarding works that may put their conducts at risk.

Minty did not meet standards of practicing as professional codes of conduct requires. This is crucial in ensuring the quality of actuary works. However, Minty did not have controls of his work products.

This is contrary to provisions of professional codes of conduct. In order to avoid possible cases that may compromise professional integrity, actuarial professional should take responsibility and ensure that his client does not use his services to mislead a third party.

In the case of Minty, JHIL used the report to mislead potential insurers and MCRF. Minty also failed to acknowledge that his report would influence decisions of insurers and MRCF.

As a professional, Minty should have recognised risks associated with “misquotation, misinterpretation, or other misuse of the Actuarial Communication” (Rappaport and Bloom, 2007).

Consequently, Minty could have taken reasonable “steps to present the Actuarial Communication clearly and fairly and to include, as appropriate, limitations on the distribution and utilization of the Actuarial Communication” (Rappaport and Bloom, 2007).

Would a code of conduct that was effectively enforced by the profession make a difference to Minty/Trowbridge behaviour?

Organisations have started embracing codes of ethic because various stakeholders want to engage firms that have high levels of ethical standards.

Consequently, top management and boards have realised the value of embracing ethical behaviours in their corporate cultures.

Studies have established that firms would like to comply with guidelines of regulatory authorities such as IAA and also eliminate exposure to criminal behaviours and liabilities (Paine et al, 2005).

These are enough motivation for engaging in ethical behaviours and relying on codes of ethics.

It is difficult to measure the impact of codes of ethics on “firms’ performance as scholars view it as measuring the immeasurable” (Tyler, 2005).

However, there are indications that codes of conduct together with education enhance employees’ morale and job satisfaction and improve business relationships with partners (Myers, 2003).

Most organisations believe that engaging in ethical behaviours have it rewards. However, they have also expressed roles of effective codes of conduct that reinforce ethical culture in an organisation.

According to George Donnelly, there is a strong link between effective corporate code of ethics, compliance, and success in business practices (Donnelly, 2005).

In the field of actuaries, researchers have not established impacts of enforcement of codes of conduct on professional performance. However, in noteworthy cases, effects of codes of conduct have improved business images and employees performance.

For instance, Johnson and Johnson suffered a reputational crisis of Tylenol in 1980s. The company used credo to help built its reputation after the crisis.

On the other hand, Lockheed Martin uses ethics programmes for changing its employees’ behaviour and attitude (LRN, 2006).

Employees consider codes of conduct meaningful and inspiring. The use of codes of conduct is becoming the norm of corporate cultures.

This is because employees rely on provisions of codes in order to understand expected behaviours. They also believe that codes of conduct promote integrity and ethics in the work environment (LRN, 2006).

LRN survey results suggest how codes of conduct in various organisations have influence on employees’ behaviours and practices. The Ethics Resource Centre (ERC) data on national ethics study revealed that organisations that have enforceable codes of conduct have marked changes on employees’ behaviours and culture.

Organisations that have codes of conduct have expressed top management commitment to ethical behaviours through communication and acts of ethical conduct. In addition, employees have also taken into account codes of conduct when making decisions and also rely on codes of conduct while dealing with external stakeholders.

Culture of an organisation is the key factor that should drive effective codes of conduct in organisation. Employees need formal and enforceable ethics and compliance procedures in order to embrace and develop strong ethical cultures.

It is necessary to highlight that how organisations enforce their codes of conduct have general impacts on how employees value such provisions. Consequently, most organisations have realised the importance of written codes of conduct together with training, and encouragement to consult when in doubt.

In the case of Minty, there was a lack of enforceable codes of conduct. Thus, the Commission of Inquiry realised the difficult associated with the code enforcement.

Codes of conduct cannot be useful to organisations if they cannot use them to enforce ethical behaviours and shape their future ethical culture (Financial Services Authority, 2002).

As a result, most firms have found it necessary to engage constant training, education, and communication of relevance of codes of conduct to employees.

These are methods such organisations use for engaging their employees. LRN has established that such codes work in organisations for promoting ethical behaviours.

Organisations are different and so are their cultures and risks associated with unethical behaviours. We can only ascertain the relevance of a code of conduct and its success if it can show positive outcomes on its intended objectives.

Gunz and Laan have demonstrated how actuaries’ roles differ from those of auditors. This implies that different codes of conduct apply to these groups.

Still, we have also noticed that litigation and tort laws are strong in countries like the US than in Australia. Thus, we must look at the effectiveness of codes in their relevant contexts and environments.

According to Gary Cramer, most organisations consider codes of conduct as necessary in promoting their images (Cramer, 1996). However, Cramer notes the importance of reminder as a tool in reinforcing a code of conduct in an organisation.

In addition, he also highlights the importance of training across all levels of an organisation and implementing reward systems for employees that adhere to the code. There is a belief that codes of conduct can only be relevant when they are a part of performance reviews.

In this regard, codes must have punishment for any deviation in order to enhance their usefulness. Cramer warns that a code of conduct alone cannot be panacea for unethical behaviours in an organisation.

Thus, some organisations may not see the relevance of such codes regarding their ethics problems.

The increasing numbers of Commission of Inquiries and law suits against organisations that neglect their workforce are indications of public pressure on organisations to eliminate unethical practices, and embrace enforceable codes of conducts that employees cannot ignore.

Trowbridge failed to enforce actuaries’ professional code of conduct and acceptable business ethics so as to ensure progressive growth and a positive, professional image to the public.

Successful organisations have realised the value of reinforcing codes of conduct combined with disciplinary measures.

In cases of disciplinary actions, organisations must ensure that they apply to all employees involved equally. This may include perpetrators, supervisors, and those who condone and withhold information.

Therefore, we can notice that enforcing a code of conduct in a firm is a responsibility of all stakeholders. This aims at sustaining and promoting an acceptable corporate image.

Thus, for fairness implementation, all stakeholders should work as a team in order to ensure that organisation services meet both clients and public expectations within the code.

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