Pianist Jayson Gillham has lost his Federal Court case against the Melbourne Symphony Orchestra (MSO).
Justice Graeme Hill ruled against Gillham on Friday, nearly two years after the MSO cancelled one of his 2024 concerts over comments he made about Israeli forces killing Palestinian journalists in Gaza.
Gillham alleged the orchestra had unlawfully cancelled the concert because of his political beliefs. The MSO maintained it was entitled to control what happens on its stage.
What happened?
In August 2024, Gillham performed a recital in Melbourne.
Composer Connor D’Netto wrote a piece for Gillham to perform, titled ‘Witness’. D’Netto attached a note dedicating it to “the journalists of Gaza”.
Before the concert, Gillham said:
“Over the last 10 months, Israel has killed more than 100 Palestinian journalists. A number of these... as they were travelling in marked press vehicles or wearing their press jackets... In addition to the role of journalists who bear witness, the word witness in Arabic is shaheed, which also means martyr.”
According to the Committee to Protect Journalists, Israeli forces have killed 263 journalists in Gaza since October 2023.
Under international law, it is a war crime to deliberately target journalists, health workers, or hospitals.
Following Gillham’s recital, the MSO cancelled a second, scheduled performance.
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They told ticketholders Gillham made “personal remarks without seeking the MSO’s approval or sanction,” and that it “does not condone the use of [its] stage as a platform for expressing personal views.”
Lawsuit
In October 2024, Gillham sued the MSO in the Fair Work division of the Federal Court.
During the trial, Gillham argued that cancelling the concert was an illegal “adverse action” taken against him because of his political beliefs, and that he was discriminated against and had his reputation damaged as a result.
The MSO alleged that Gillham breached his contract with the organisation by failing to provide notice of his comments, which they deemed “unprofessional”.
Judgment
In handing down his judgment on Friday in the Federal Court in Melbourne, Justice Graeme Hill accepted the MSO’s policy of remaining unaffiliated with either Israel or Gaza.
The judge found the MSO “would have taken the same actions” if Gillham had expressed a pro-Israel view instead.
He 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.”
Gillham was an independent contractor, not an employee of the MSO, so the judge found standard workplace protections didn’t apply to his case.
It’s not yet clear whether Gillham will appeal.
