The federal court has given the green light for concert pianist Jayson Gillham to sue the Melbourne Symphony Orchestra, with chief justice Debra Mortimer ordering the case to proceed to trial.
In March, the MSO sought to have Gillham’s case thrown out, arguing that the pianist was not an employee but a freelance contractor, so neither the Fair Work Act, or Victoria’s Equal Opportunity Act, applied.
The pianist’s legal team, led by senior counsel Sheryn Omeri, argued that the MSO’s alleged discrimination on the grounds of political belief or activity was unlawful under Victoria’s Equal Opportunity Act.
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On Thursday, the federal court ruled against the MSO and ordered the trial to proceed. Mortimer said she was“not persuaded the applicant’s case is without any reasonable prospects of success” and agreed that the relationship between the pianist and the orchestra was protected by workplace laws.
Gillham is suing the MSO over a cancelled Melbourne concert he was contracted to perform at on 15 August, a cancellation which he claims was an attempt to silence him over his stance on the conflict in Gaza.
At a performance four days earlier in Southbank’s Iwaki Auditorium, Gillham had played a short piece called Witness, composed by Australian multimedia artistConnor D’Netto, which was dedicated to journalists who had lost their lives in the Gaza conflict.
Introducing the work, the pianist addressed the audience, stating more than 100 Palestinian journalists had been killed, and that the targeting of journalists in a conflict was a war crime under international law.
Announcing the decision to cancel the 15 August concert, an MSO email sent to patrons alleged Gillham 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”, the email said, adding that Gillham’s remarks had caused “distress”.
The MSO subsequently issued a statement denying Gillham had been discriminated against because of his political views, saying the action management took in response to the artist’s on-stage comments was “not and never has been about free speech”.
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In an October statement Gillham released after announcing his decision to sue, the pianist said the MSO’s actions were part of “a disturbing trend of silencing voices that speak to uncomfortable truths”.
“This situation goes beyond just artistic freedom; it strikes at the heart of our right to free speech and the role of art in addressing important social issues,” he said in the statement.
Less than two weeks after the controversy erupted, MSO musicians reportedly passed a vote of no confidence in the organisation’s managing director, Sophie Galaise, who resigned in late August.
Galaise ceased to be a respondent in the legal action taken against the MSO in March, with Gillham reaching a confidential settlement with the former MSO boss days before the organisation sought to have the lawsuit quashed in the federal court.