问题：Mahmood is a junior employee of Tzo Company (a large, listed company). Tzo is a processor of food labelled as containing only high quality meat. The company enjoys the trust and confidence of its customers because of its reputation for high quality products. One day, when passing through one area of the plant, Mahmood noticed some inferior meat being mixed with the normal product. He felt this must be unauthorised so he informed his supervisor, the factory manager, who told Mahmood that this was in fact a necessary cost reduction measure because company profits had been declining in recent months. Mahmood later found out that all stages of the production process, from purchasing to final quality control, were adapted in order to make the use of the inferior meat possible.

　　The factory manager told Mahmood that the inferior meat was safe for humans to eat and its use was not illegal. However, he told Mahmood that if knowledge of the use of this meat was made public, it would mean that customers might stop buying the products. Many jobs could be lost, probably including Mahmood’s own. The factory manager ordered Mahmood to say nothing about the inferior meat and to conduct his job as normal. Mahmood later discovered that the main board of Tzo was aware of the use of the inferior meat and supported its use in seeking to reduce costs and maintain profits. In covering up the use of the inferior meat, the factory produced a fraudulent quality control report to show that the product was purely based on high quality meat when the company knew that this was not so.

　　When Mahmood heard this, he was very angry and considered telling an external source, such as the local newspaper, about what he had seen and about how the company was being dishonest with its customers.

　　(a) Explain how Mahmood might act, in each case, if he were to adopt either conventional or post-conventional ethical assumptions according to Kohlberg’s definitions of these terms. Your answer should include an explanation of these two terms. (8 marks)

　　(b) Construct an ethical case for Mahmood to take this matter directly to an external source such as a newspaper. (8 marks)

　　(c) Some jurisdictions have a compulsory regulatory requirement for an auditor-reviewed external report on the operation and effectiveness of internal controls (such as s.404 of Sarbanes Oxley).

　　Explain how such a requirement may have helped to prevent the undisclosed use of the inferior meat at Tzo Company. (9 marks)

　　(25 marks)

　　解析：(a) Conventional ethical behaviour

　　Kohlberg’s three stages of ethical development are the pre-conventional, the conventional and the post-conventional. Each of these has its own likely ethical response.

　　The conventional ethical response is to believe that the ethical right is to comply in full with whatever regulations apply or whatever orders are given in the context they are operating in. It assumes that the highest ethical position is to be in compliance with whatever rules, regulations or requirements are applicable at the time. So the individual’s focus is on positioning themselves so as to maximise his or her ability to comply. This might involve learning how to adopt compliant behaviour, learning about compliance requirements and familiarisation with the cultural norms which apply.

　　For Mahmood, it is clear in the case that he has been ordered by his manager to ‘say nothing’ and to ‘conduct his job as normal’. A conventional ethical position would not reflect beyond this. His instructions are clear and he would see virtue in obedience to this instruction. The fact that he is a part of an organisational hierarchy and that those in a supervisory position over him have imposed a rule for him to comply with, is sufficient for him.

　　To adopt a post-conventional ethical response is to see a ‘higher’ ethical duty despite whatever laws, regulations, norms or instructions apply at any given time. What Kohlberg referred to as ‘universal principles’ are essentially subjective, meaning that each person can have his or her view of what those are. But in each case, a post-conventional actor will consider the ethical ‘right’ not in line with current regulations (which can change over time) but with his or her higher principles, perhaps those concerning concepts such as justice, fairness, compassion, decency, etc.

　　For Mahmood, post-conventional behaviour might involve him questioning the morality of the decision to include inferior meat in the company’s products in the interests of what he sees as the ‘greater good’. He may come to the view, for example, that honesty and truthfulness to customers is a higher or ‘universal’ principle, even though the board of Tzo Company appears to have decided to introduce the inferior meat into its premium meat product. In such a situation, he could maintain, but suppress, his beliefs for the sake of keeping his job, or he could act upon his belief. Because he has had no satisfaction from his manager at Tzo, he might believe it ethically right to inform an external source, such as a newspaper, as he is considering. Post-conventional behaviour is often costly to the actor and if Mahmood were to become a whistleblower in this case, he may well lose his own job and cause others to lose theirs.

　　(b) Ethical case

　　In recognising that it would be very costly on a personal level for Mahmood to act as a whistleblower in this case, there is a strong ethical argument that he should do so.

　　The company is acting in a concerted manner to deceive customers by selling food which is not what they believe it to be. As an employee of the company, Mahmood is taking part in a value adding process which results in a product which is not what the customer thinks they are purchasing. It may be that the inferior meat, even if safe to eat for the majority, is unsuitable for some diets or which may offend some consumers’ personal or cultural beliefs. In a trades-description sense, this deceit is a breach of customers’ trust. It may cause offence to some and possibly even illness in others if they purchased a product unaware of the inferior nature of the contents.

　　Because the board of Tzo Company is complicit in the decision, he is unlikely to get any change of mind from anyone in the company. So the only way to highlight the deceit is to go outside the company. Were he to adopt the normal grievance procedure by observing the chain of command in the company, the involvement of the board of Tzo Company in the use of inferior meat would make it unlikely he would get a sympathetic hearing. In fact by raising the issue internally, he might risk his own safety or the comfort of his position at work. So going to a newspaper may be the only way he can reasonably expect to see the problem addressed.

　　The division is falsifying quality control reports and therefore intentionally misleading whoever it is who receives these – perhaps a food standards agency, a regulator or similar. This control is presumably intended to ensure that the company’s main output is of a high quality as stated, and that the quality assurance measures are met for the product. The falsification of the report means that normal quality procedures are being systematically subverted and this is a very serious matter. Again, the fact that the board of directors has sanctioned this makes it unlikely that Mahmood would receive a sympathetic hearing, thus making the case for going directly to the newspaper.

　　It is in the public interest to highlight a situation in which a company is mislabelling food, deceiving customers and shareholders, and requiring its employees to take part in the deceit and remain quiet about it. This is not how business should behave and it could serve to erode society’s trust in business in general. Employees have an ethical right to work for a company which is not structurally deceitful and were such a situation to persist, it could undermine management–employee relations and open the company up to legal and reputational damage. Inasmuch as such a situation is probably likely to be disclosed eventually, a quicker rather than protracted conclusion is preferable.

　　(c)IC report and preventing the fraud

　　External reports on the effectiveness of internal controls are intended to convey the robustness of a company’s internal controls to an external audience (usually the shareholders). As with other reports, however, the company must make preparations and institute systems to gather the information to report on. This in itself is capable of controlling behaviour and constraining the professional and ethical behaviour of management.

　　With any report required by regulation, the board must take control of the process and acknowledge its responsibility for the company’s system of, in this case, internal controls. This means that it would be unable to knowingly circumvent or undermine the internal controls put in place to control the quality of meat in the factory. The regulatory nature of this requirement would also make it an offence to make a false disclosure, meaning that the directors could be held personally liable for any untruths in the report. So although the use of the inferior meat itself may not be illegal as indicated by the factory manager, making an untrue statement on an internal control report over the use of that meat would be an offence.

　　Any reporting (including one on internal controls) creates greater accountability because stakeholders can hold to account those making those statements. In this case, any stakeholder can then point to what was said in the report and hold the board to account for its performance against any given statement. This includes employees such as Mahmood and consumers concerned with product quality. So if Tzo explained the internal controls behind the production of its ‘high quality’ meat products, it could then be held accountable for any breach in the controls underpinning that quality.

　　The need to report on internal controls would make it almost impossible to use the inferior meat without disclosing the fact of its use, because the penalty for intentionally including misleading or false statements in the report would be high (regardless of whether Tzo is based in a rules or a principles-based jurisdiction). It might then be faced with the choice of continuing to use the meat and admitting it, or discontinuing its use in order to report on internal controls supporting the claimed high quality of its products. Either way, continuing to use inferior meat in a concealed way would be very difficult.

　　A report on the effectiveness of internal controls (such as Sarbanes Oxley s.404) typically requires the inclusion of a statement on the processes used by the directors to assess the effectiveness of internal controls. This includes the disclosure of any material internal control weaknesses or any significant problems which the company encountered in its internal controls over the period under review. The value of the report as a means of reassuring investors is to use this statement to demonstrate the robustness of the processes. An unconvincing disclosure on this would potentially undermine investor confidence.

　　Because the report is subject to an auditor’s review (or full audit in some jurisdictions), the auditors can demand evidence of any statement on the report and follow any claim made back along the relevant audit trail. It is a serious and often easily detectable offence to deceive an auditor or to make a knowingly false statement in an audited or auditor-reviewed report. Such a deceit (of the auditors) would result in an immediate loss of confidence in management on the part of the auditors and, in consequence, also on the part of shareholders and regulators.

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