ACCA/CAT

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3 （a） （i） Leaving the service of a board

Resignation with or without notice. Any director is free to withdraw his or her labour at any time but there is normally a notice period required to facilitate an orderly transition from the outgoing chief executive to the incoming one.

Not offering himself/herself for re-election. Terms of office，which are typically three years，are renewable if the director offers him or herself for re-election and the shareholders support the renewal. Retirement usually takes place at the end of a three-year term when the director decides not to seek re-election.

Death in service when，obviously，the director is unable to either provide notice or seek retirement.

Failure of the company. When a company fails，all directors’ contracts are cancelled although this need not signal the end of the directors’ involvement with company affairs as there may be ongoing legal issues to be resolved.

Being removed e.g. by being dismissed for disciplinary offences. It is relatively easy to ‘prove’ a disciplinary offence but much more difficult to ‘prove’ incompetence. The nature of disciplinary offences are usually made clear in the terms and conditions of employment and company policy.

Prolonged absence. Directors unable to perform their duties owing to protracted absence，for any reason， may be removed. The length of qualifying absence period varies by jurisdiction.

Being disqualified from being a company director by a court. Directors can be banned from holding directorships by a court for a number of reasons including personal bankruptcy and other legal issues.

Failing to be re-elected if，having offered him or herself for re-election，shareholders elect not to re-appoint.

An ‘agreed departure’ such as by providing compensation to a director to leave.

（ii） Discuss Miss Hoiku’ statement

The way that directors’ contracts and company law are written （in most countries） makes it difficult to remove a director such as Mr Smith from office during an elected term of office so in that respect，Miss Hoiku is correct. Unless his contract has highly specific performance targets built in to it，it is difficult to remove Mr Smith for incompetence in the short-term as it is sometimes difficult to assess the success of strategies until some time has passed. If the alleged incompetence is within Mr Smith’s term of office （typically three years）then it will usually be necessary to wait until the director offers himself for re-election. The shareholders can then simply not re-elect the incompetent director （in this case，Mr Smith）. The most likely way to achieve the departure of Mr Smith within his term of office will be to ‘encourage’ him to resign by other directors failing to support him or by shareholders issuing a vote of no confidence at an AGM or EGM. This would probably involve offering him a suitable financial package to depart at a time chosen by the other members of the board or company shareholders.

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