news Shadow Communications Minister Malcolm Turnbull has publicly and inaccurately claimed that Mike Quigley was “fired” from his role as chief executive of the National Broadband Network Company, in comments which appear to leave the Liberal MP open to the possibility of defamation action due to damage to Quigley’s reputation.
On Friday morning, NBN Co issued a media release stating that Quigley had decided to “retire from corporate life” after four years in which the executive had served as the founding chief executive of NBN Co, building the company around his appointment in mid-2009. The executive’s resignation from the role as not unexpected, given that he had served a normal period for a chief executive of a major company, and also given that he had already left early retirement to lead NBN Co.
Quigley’s accomplishments in the role were praised by both NBN Co’s board and the Federal Government. “NBN Co has been fortunate to have Mike as chief executive over the past four years,” said NBN Co chair Siobhan McKenna, in the same NBN Co statement. “His intellect, tenacity and knowledge of telecommunications products and network architecture have taken NBN Co from a policy vision to a successful operating entity.”
Communications Minister Anthony Albanese and Finance Minister Penny Wong also issued a separate statement thanking Quigley for his work at NBN Co. “Mr Quigley can be tremendously proud of what he has achieved. On behalf of the Government and the Australian people, we wish to thank Mike Quigley for helping build the infrastructure Australia needs for the 21st century,” the pair said.
However, immediately following the announcement of Quigley’s retirement, and in several subsequent interviews, Turnbull, who has been a long-time critic of the executive, inaccurately claimed Quigley was “fired”. “Revolving doors at NBN Co just as there are in the Labor caucus. How can project be a success when CEO gets fired?” Turnbull posted on Twitter.
Turnbull’s claim was immediately questioned by a number of respondents. “What indication is there he was fired?” asked Simon Sharwood, Asia-Pacific editor of technology media outlet The Register. “Documents so far say he retired.” Wolf Cocklin, social media coordinator at the City of Melbourne, added: “Do you have facts to prove he was fired, when he said he was resigning?”
Turnbull responded by highlighting articles recently published by the Financial Review, which had reported that NBN Co’s board, led by chair McKenna, had been seeking a new chief executive to replace Quigley, having engaged executive search firm Egon Zhender. “When the Chair has sought your removal and hired a headhunter to replace you, that is hardly an unforced resignation,” Turnbull wrote. “Lot more push than jump,” he commented in another tweet.
The Liberal MP repeated these comments in a doorstop press conference in Darwin on Friday. “The Chairman of NBN Co Siobhan McKenna has been trying to get Michael Quigley sacked for several months and she’s finally succeeded – she’s had a head hunter out looking for his replacement,” Turnbull said, according to a transcript available on his site. “This is a project that is ridden with discord. The board was fighting with the Chief Executive and now effectively they have no Chief Executive. The project is leaderless. And Mr Quigley has not been pushed out because he’s been doing a good job. He’s been pushed out of this company because it has not succeeded in meeting its targets.”
Turnbull was challenged on the issue by Sky News journalist David Lipson, in a broadcast on Friday. The transcript is also available online. “Siobhan McKenna today in a statement said the directors are proud of Mike’s achievement. What more evidence do you have that she was trying to push him out?” Lipson asked Turnbull.
“Well, you may well ask her whether she at any stage sought the support of the Government to remove Mr Quigley,” Turnbull responded. “That allegation has been made in the press and in Parliament and despite many opportunities she has never denied it. You may well ask her if she had so much confidence in Mr Quigley and is so heartbroken by his decision to go why it is that some time ago she hired a head hunting firm, Egon Zehnder, to look for his replacement. This is well before he said he was going to go. I mean you don’t have to be Sherlock Holmes to work out that there was a rift between the board and Mr Quigley and that finally the board won out, or the chairman won out.”
However, despite Turnbull’s comments, it currently remains unclear whether NBN Co’s board was actively seeking to remove Quigley from his post as chief executive, as none of the board members who would have been involved in such a decision have commented publicly on the issue. In addition, it also remains possible that the company’s CEO executive search process was stimulated by Quigley informing the board ahead of time of his intention to resign, to ensure an orderly executive transfer process.
In either case, even if the board had informally asked for Quigley’s resignation, it would be inaccurate to state, as Turnbull did, that Quigley was “fired”. NBN Co’s board did not terminate Quigley’s contract; he resigned, triggering the resignation clauses of the contract.
As Turnbull did not make his comments regarding Quigley in Parliament (Parliament is not currently sitting), it is possible that the executive would have recourse to seek damages under Australian defamation law from the Liberal MP for damaging his reputation. This is because Turnbull’s comments did not attract Parliamentary Privilege, which normally protects elected politicians from legal action in cases of defamation.
A defamation fact sheet prepared by the University of Technology Sydney and available online states that there are three conditions for a defamation action to be brought. Firstly, the plaintiff must show that the material was published. In this case, Turnbull did publish the information on Twitter; communicating the allegations to hundreds, perhaps thousands, of individuals. In addition, Turnbull’s claim has been widely reported in the media. Secondly, the material must identify the person aggrieved by it; in this case Turnbull did identify Quigley.
And lastly, the published material must exposes the person to ridicule; lower the person’s reputation in the eyes of members of the community; cause people to shun or avoid the person; or injures the person’s professional reputation. This last clause is inconclusive, and there are a number of defences against it — such as the claim being actually true — but a cursory reading of the law would appear to show Turnbull’s claim of a high-ranking corporate executive being “fired” rather than having retired from his position would have injured Quigley’s professional reputation.
Aside from the possibility of legal action, Turnbull’s claim has also exposed the MP to ridicule from his political rivals, for displaying a lack of sensitivity with respect to Quigley’s service to the Federal Government and the Australian community.
“I’ve seen some absurd comments from Malcolm Turnbull today,” said Communications Minister Anthony Albanese in a press conference in Sydney, “and I just want to say this: that Malcolm Turnbull was given the job by Tony Abbott of destroying the NBN. That was his key performance indicator. It’s one thing to attack a project in the way that he has day in and day out. Here, he has attacked an individual on the day that they’ve announced their retirement. An individual who came out of retirement in order to do a job for the nation, not for himself, and who donated his first year’s salary for medical research.”
“I say to Malcolm Turnbull, about time you showed a bit of class, mate. About time you showed a bit of class and didn’t engage in these destructive, negative politics against the NBN and against, indeed, anyone associated with the NBN.”
Albanese, who has previously indicated his support for Quigley, added: “I think Mike Quigley has been an outstanding CEO … The fact is that since Mike Quigley was appointed CEO at the NBN, two of the three major Australian telcos have changed their CEO and, indeed, a number of the networks have also changed their CEO. Indeed, three of the five television networks have changed their CEOs. So for Malcolm Turnbull’s latest bout of hysterical negativity, I think it should be dismissed for what it is. This is an orderly process which is consistent with the care that Mr Quigley has taken in terms of his presiding over the NBN.”
Turnbull’s comments also attracted strong criticism from respondents on Twitter. “This is [Malcolm Turnbull’s] magic universe where copper is as good as fibre, people are fired not retired, etc,” wrote futurist, inventor and startup executive Mark Pesce, who has clashed with Turnbull on the issue of the NBN previously. “Unless [Malcolm Turnbull has proof Quigley was fired, he should keep quiet,” added web 2.0, innovation and social media advisor Stephen Collins. “He’s a lawyer, and knows the consequences.”
Turnbull’s comments attacking Quigley on Friday represent only the most recent occasion on which the Liberal MP has publicly attacked the executive. Over the past several years, Turnbull has been active, usually in parliamentary settings, in implying impropriety in Quigley’s dealings in his previous career as a top-ranking executive at French networking vendor Alcatel-Lucent, especially with respect to the vendor’s Costa Rica division. However, US investigators investigating the situation in Costa Rica have never sought to interview Quigley over the issue. Quigley has maintained his innocence in the case, and there is currently no suggestion of wrongdoing on the part of the NBN Co chief executive.
As a journalist, I am very comfortable at this stage reporting that Turnbull’s direct statement last week that Quigley was “fired” was inaccurate, even in the case that Quigley might have been asked to resign before he decided to retire. As Turnbull, as a former leading executive himself, is clearly aware, the word “fired” has a very specific meaning in corporate life. In executive circles it refers to termination of contract. In this case, Quigley was very definitely not “fired”; he exercised the resignation clauses of his contract voluntarily.
I am also comfortable saying that Turnbull has left himself open to a defamation action here. I am sure the mild-mannered Quigley won’t pursue one, especially as he’s planning to retire from corporate life and is already a multi-millionaire, but as a journalist I am very, very conscious that the minute you publish an allegation that someone has been “fired”, unless you have direct and clear evidence that would stand up in court, you open yourself to defamation. That is why you’ll very rarely find the word “fired” used, even when an executive has been asked to resign. The term refers only to termination of contract, which did not occur here.
If I was advising Turnbull, I would recommend that the MP immediately use Twitter to retract the comment and apologise to Quigley, as well as offering Quigley the chance to publish a statement of his own through Turnbull’s Twitter account. I would also, given the national exposure Turnbull’s claim received, advise Turnbull to issue a media release on the issue retracting his comment. Of course, it’s doubtful Turnbull will do any of this. It’s very doubtful that Quigley would pursue action. Turnbull is likely relying on this. In this sense, the Member for Wentworth is very fortunate that Quigley has such a mild-mannered approach — virtually any other chief executive I know, especially one who was planning for future employment and wasn’t retiring, would have called their lawyer immediately. It’s a pretty clear-cut case.
So why did Turnbull do this, and why does he have such a poisonous, almost spiteful relationship with Quigley, who has always shown himself to be a man of integrity? I do have some thoughts on this. I’ll be exploring them at length in an article early next week. Stay tuned ;)
Image credit: Office of Malcolm Turnbull