Pianist Jayson Gillham tells court he kept MSO in the dark before speaking out on Gaza

Pianist Jayson Gillham was concerned management of the Melbourne Symphony Orchestra (MSO) would not allow him to play a new piece of music at an event he was headlining if they knew it was dedicated to the journalists of Gaza, the Federal Court heard on Monday.

Gillham is suing the MSO under the Fair Work Act for wrongful dismissal for expressing a political opinion, in a case that began on Monday and is set to run over 15 days.

The case is being heard by Justice Graeme Hill, with Gillham represented by Marque Lawyers and the MSO by Arnold Bloch Leibler.

The MSO has accused Gillham of deliberately misleading them as his employer, saying he needed to seek prior permission to make any controversial political statements.

In August 2024, the MSO removed the acclaimed pianist from a scheduled performance before cancelling the event days after an MSO recital during which Gillham introduced a piece, Witness, that he said was “dedicated to the journalists of Gaza”, some of whom he said were deliberately targeted by the IDF.

When cancelling the performance, the orchestra cited “safety concerns”. In a statement at the time, the MSO said his comments were not appropriate and “an intrusion of personal political views”. It later said it had made an error in cancelling Gillham’s shows.

“I was concerned they would not want any mention of Palestine on an MSO stage,” the London-based, Queensland-raised pianist said.

Under cross-examination, Gillham said he had also not disclosed to his agent that he would be prefacing the piece with political comments.

“I was trying to protect my ability to speak on the issue. I had a very strong suspicion that if my agent or the MSO knew, they would deprive me of my ability to express my political belief.”

Justin Bourke, KC, representing the MSO, said the orchestra must have a right to control what is said on its stages and argued that Gillham had deliberately misled them when he described the piece Witness as “a beautiful, meditative” work. Bourke said there was no notice that Gillham would make comments about Israel or Gaza.

Appearing for Gillham, Sheryn Omeri, KC, argued it was an important case with the right to hold a lawful political belief at its heart. It was not just significant for Gillham personally, but for all independent contractors, she said.

It was also important for organisations who engaged independent contractors, and whether contractors are owed the same statutory obligations as employees, Omeri continued.

Omeri said Gillham genuinely believed what he said and had a right to say what he did.

Gillham’s assertion that his on-stage dedication to the “journalists of Gaza” at the MSO’s Iwaki Auditorium was a statement by the composer Connor D’Netto, who wrote the piece Witness, was a focus of his cross-examination.

Instagram messages between the two revealed that the introduction – the central event in the entire case – was a combination of Gillham’s and D’Netto’s ideas. This emerged in disclosure documents to the court but Omeri said the MSO could not rely on that information for the case as it was not known at the time they cancelled his subsequent engagements.

Omeri said if the MSO continued to use this line to assert that Gillham was dishonest, he would need the opportunity to respond.

At question are the protections afforded by the federal Fair Work Act and the Victorian Equal Opportunity Act.

Hill said in his opening remarks he was not going to let the case turn into a hotbed of controversy about events in the Middle East. “I ask that witnesses keep their evidence to issues that are relevant, that is the legal issues,” he said.

Addressing Gillham, the judge said: “I’m not a jury, many people are listening in, but treat me as your audience for the next three weeks.”

In December 2023, the management team at the MSO had deliberated about whether they would say anything about the events in Middle East, according to Bourke. They called “sponsors and supporters and had a whole process and in the end they landed on ‘no, we won’t take a position’,” he said.

The judge asked how was this communicated to Gillham. It was not, Bourke said.

There’s a difference between feeling uncomfortable and feeling unsafe, Omeri said. “Nothing in Jayson Gillham’s introduction would have made people feel unsafe,” she said.

Bourke described Gillham’s remarks and subsequent events as “a firestorm” for the MSO. There should be “commonsense expectations” when you engage a classical musician to appear on your stage, he said.

“That you won’t abuse a captive audience with statements that would clearly upset or offend some members of your audience … that you will work co-operatively with your host about what will occur on stage [and] you won’t deceive your host.

“Fundamentally, there’s a time and a place for everything,” he said.

Hill said the question of costs would not be a matter for this court. The case continues on Tuesday, with 19 witnesses to appear for the MSO. It is being live-streamed.

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