Pianist Jayson Gillham has lost his case against the Melbourne Symphony Orchestra (MSO) after alleging that his 2024 dismissal from an MSO performance constituted unlawful discrimination.

The case’s findings were handed down today (Friday 10 July) by Justice Graeme Hill before the Federal Court of Australia, who ruled that Gillham’s cancellation by the orchestra was a business, rather than a political decision.

He also found that the MSO “did have a policy” about remaining neutral surrounding the Israel-Gaza conflict and that there is a convention upheld between classical musicians and their presenters that dictates that they should not make remarks about “sensitive political or social issues” without seeking permission.

Justice Hill also said that Gillham’s comments were not a “substantial and operative reason” for the MSO’s response.

Jayson Gillham. Photo supplied

On 11 August 2024, the MSO presented a solo recital by Jayson Gillham in which he delivered the world premiere of Connor D’Netto’s Witness, a last-minute, agreed-upon addition to the program. Witness was dedicated to the journalists of Gaza; Gillham introduced the piece with reference to the “targeted assasinations” of over 100 journalists by Israeli forces.

In response to the comments, the MSO removed Gillham from a performance with the orchestra on 15 August, stating that Gillham had not sought its approval for the statements, and that the orchestra “does not condone the use of [its] stage as a platform for expressing personal views”.

The hearing found that the removal occurred after one written complaint and three verbal complaints (one from the same individual who wrote in) following the recital.

Sheryn Omeri KC, Gillham’s barrister, cited examples ranging from conductor Ilan Volkov and the MSO’s own fundraising for Ukraine to allege that there was no convention between classical musicians and presenters discouraging political remarks, and that there was nothing in Gillham’s contract with the orchestra that would prevent him from making such a statement.

Represented by Justin Bourke KC, MSO argued that Gillham’s removal was justified as his behaviour violated this existent convention about non-approved statements that may be political in nature, cause distress to an audience or harm the presenter’s reputation.

On the final day of the hearing, Justice Hill urged both parties to settle the case before the judgement.

On his fundraising campaign on chuffed.org, Gillham has raised $187,000 for his legal fees.

MSO Chair Edgar Myer said: “We would like to acknowledge the dedication and professionalism of our musicians and staff who have continued to deliver brilliant musical experiences, 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.”