There was a raft of divisions and miscommunications within the Melbourne Symphony Orchestra about the treatment of pianist Jayson Gillham after he made remarks about Gaza during a recital, new legal documents show.
Gillham’s claim that the MSO discriminated against him because of his political views will reach the Federal Court on Tuesday in what is shaping up as a landmark case about freedom of speech.
Documents filed with the court ahead of the first hearing reveal the MSO was fractured about how to respond when Gillham, a guest pianist, introduced one of his works during a recital in August with a dedication to journalists killed in Gaza and claimed that those deaths appeared targeted.
The next day the MSO wrote to subscribers apologising for the comments, saying they were unauthorised, political, and should never have been made. The MSO took Gillham off the line-up for its Melbourne Town Hall concert scheduled for the Thursday evening, and then cancelled the event.
Left, pianist Jayson Gillham and, right, former Melbourne Symphony Orchestra managing director Sophie Galaise.Credit: Simon Schluter, Laura Manariti
On the Friday, MSO musicians wrote to the board, conveying concerns about the culture of the organisation, and called for managing director Sophie Galaise and chief operating officer Guy Ross to be sacked.
The musicians also requested an independent review, which has since been announced and will be carried out by former MP Peter Garrett, and an investigation into what happened with Gillham.
The MSO’s managing director at the time, Sophie Galaise, told The Australian on September 2 that the decisions about the concert cancellations were made by the executive team and were unanimous.
Legal documents show Gillham will argue that the MSO contravened the Fair Work Act and caused him “distress, hurt, humiliation and anxiety, as well as damage to his professional reputation”.
The case is against the MSO, Symphony Services Australia, Galaise and Ross personally. All parties were contacted for comment but declined to speak.
In his statement of claim, obtained from his representative Marque Lawyers, Gillham says he believed his comments to be true and they represented his political beliefs.
The documents reveal the MSO did not notify Gillham of any policies or procedures ahead of his appearance. They also state he was an independent contractor within the meaning of that expression in the Fair Work Act. “Accordingly, SSA was Mr Gillham’s ‘employer’ as defined in s.4 of the Equal Opportunity Act 2010 (VIC) (EOA).”
Gillham’s action alleges the MSO suggested to numerous patrons that he had done something wrong and further alleges it damaged his reputation in the classical music world, given that the cancellation message was seen and published by commentators in Australia and abroad.
Composer and conductor Tan Dun leads the MSO at Hamer Hall in September.Credit: Laura Manariti
The documents argue that pursuant to the Equal Opportunity Act, Gillham had a right not to be discriminated against by the MSO for holding or expressing a political belief, or engaging in political activity.
They also shed further light on what transpired after Gillham made the comments on August 12, namely alleging that Ross, representing the MSO, initially agreed to a public apology and to specific wording for a public statement.
Discussions about the MSO re-instating Gillham’s performance at the Melbourne Town Hall concert were allegedly held between Paul Davies, representing Gillham in his role as director of musicians at the Media Arts and Entertainment Alliance (MEAA), and Ross.
The claim states an agreement was made subject to a number of conditions and the following statement devised and agreed to by both parties: “The Melbourne Symphony Orchestra acknowledges that there is enormous division in some parts of the community here and overseas, and recognises the strength of feelings of artists, audience members, musicians and staff alike.”
It went on to say: “We acknowledge that a mistake was made in asking JG to step back from his performance on Thursday 15 August at Melbourne Town Hall and we apologise to him for doing so. In seeking a positive way forward for everyone we have engaged constructively with JG and his management to seek to agree for JG to perform as originally scheduled, however acknowledge that due to lost rehearsal and preparation this is not possible. The Melbourne Symphony Orchestra looks forward to reinviting JG to play in the future.“
Instead of that statement being made publicly, the MSO cancelled the event altogether via its website, citing “safety concerns”. On their site, a different statement – which was shared with the media – read: “In light of this advice, the MSO Board and management had no option but to cancel the concert. We apologise to those who were planning to attend. The MSO acknowledges that an error was made in asking Jayson to step back from his performance on Thursday 15 August. We have been engaging constructively with Jayson and his management and are seeking to reschedule the concert.”
It stated that while the MSO maintains that a concert platform is not an appropriate stage for political comment, “we acknowledge Jayson’s concerns for those in the Middle East and elsewhere”.
Gillham’s claim alleges this was a dilution of what he said and not an accurate reflection of his views.
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