Cancelled musician Jayson Gillham has lost his case against the Melbourne Symphony Orchestra over comments he made about the war in Gaza in 2024.
Justice Graeme Hill handed down his verdict in the Federal Court of Australia in Melbourne today, one month after the end of the three-week unlawful discrimination trial that tested the limits of free speech in Australian workplaces.
Justice Hill rejected Gillham’s contention the MSO took “adverse actions” against him because of his statements about journalists killed in Gaza.
Those actions, as argued by Gillham, included the cancellation of a scheduled concert, an apology for his statements, requiring the pianist not make similar comments about Gaza if the concert were to be reinstated, and failing to apologise for the cancellation of the musician’s concert.
Gillham claimed he had a workplace right under Victoria’s Equal Opportunity Act not to be treated unfavourably because of his political belief.
However, Justice Hill found the MSO’s reasons for cancelling Gillham’s concert were not because of his 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.
Instead, they were to “address the anticipated adverse impacts” of 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.”
Justice Hill also found Gillham’s claims he was discriminated against under the Equal Opportunity Act did not fall under federal workplace law.
In a statement, the MSO welcomed Justice Hill’s 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 acknowledged the “dedication and professionalism” of the orchestra’s musicians and staff “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.”
Gillham’s lawyer, Michael Bradley, told the ABC he had just spoken to his client, who is currently in the United Kingdom.
“He’s obviously very disappointed with the outcome,” Mr Bradley said.
“We’ll need some time to read the judgement and understand what the outcome is.”