A British-Australian pianist lost his lawsuit against the Melbourne Symphony Orchestra (MSO) after he alleged that he was discriminated against for comments he made about Gaza during a performance.
Jayson Gillham, 39, filed a case against the Melbourne orchestra after it cancelled his performance scheduled for 15 August 2024.
Just four days earlier, the pianist had played a short piece called Witness, composed by multimedia artist Connor D’Netto, which he dedicated to Palestinian journalists killed by Israeli forces in Gaza.
Mr Gillham told the audience that more than 100 Palestinian journalists had been killed in the conflict and that the targeting of journalists in a conflict was a war crime under international law.
On Friday, federal court justice Graeme Hill ruled that the orchestra had acted legitimately to protect its business as workplace protections were not extended to the performer due to his status as an independent contractor.
Justice Hill added that the reasons for the orchestra to cancel Mr Gillham's concert were not due to political beliefs.
"The political content of Mr Gillham's remarks was not a substantial and operative reason for any of the MSO's actions," he said.
Rather, they were to "address the anticipated adverse impacts" of Mr Gillham's statement on the orchestra's business and reputation.
"I find that the MSO did have a policy for not expressing support for either side of the Israel-Gaza conflict," Justice Hill said.
"I find that there is a custom or practice that classical musicians do not make statements on sensitive political or social issues from the stage without approval of the host."
He also found that the pianist’s allegations that he was discriminated against did not fall under the Equal Opportunity Act.
MSO welcomed the judgement. "The fundamental issue in dispute in the proceeding was who controls MSO's stage," the orchestra said.
"The MSO maintained that Mr Gillham should have sought the authorisation of the MSO before making the statements he made from the MSO's stage."
Chair Edgar Myer praised the "dedication and professionalism" of the orchestra's musicians and staff members who worked "despite the disruption and distraction that came with defending these legal proceedings.
"We hope that we can now put this matter behind us and focus on our music."
After cancelling the concert of Mr Gillham, the orchestra said in an email to patrons that he had made personal remarks “without seeking the MSO’s approval or sanction”.
“The MSO does not condone the use of our stage as a platform for expressing personal views,” it said, adding that Mr Gillham’s remarks had caused “distress”.
Mr Gillham’s barrister, Sheryn Omeri KC, argued that the MSO contract did not prevent the pianist from making the statement.
She argued it was "inconceivable that he would have been cancelled" if he had called for the release of Israeli hostages rather than speaking about journalists killed in the Gaza war, noting that the orchestra's then-managing director, Sophie Galaise, had done so in December 2023.
Following the judgement, his lawyer Michael Bradley told Australian Broadcasting News, that his client who is currently in the United Kingdom, is “obviously very disappointed with the outcome”.
"We'll need some time to read the judgement and understand what the outcome is."
After Mr Gillham’s concert, the MSO said it received one written and two verbal complaints about his statements, as well as 487 complaints about its decision to cancel his next performance.
Amid the mounting public backlash, the orchestra said cancelling of the concert was an “error” and said it would reschedule it but negotiations between the parties hardened after Gillham launched his Federal Court case in October 2024.
Ahead of the trial, Mr Gillham told ABC that he was launching the trial as he believed "everyone has the right to freedom of expression".
"I think everybody has the right [to be themselves on stage], and that's why I'm fighting the case."
Mr Gillham’s comments were from data from the International Federation of Journalists which found that at least 268 journalists and media workers have been killed in Israel’s war on Gaza since the 7 October 2023 Hamas attacks.
During the subsequent war, more than 73,000 Palestinians have been killed in Gaza, including over a 1000 since the ceasefire in October, according to the Gaza’s ministry of health.
