Oboeist unfairly dismissed by Welsh National Opera, appeal judges rule

An oboeist who played with the orchestra of Welsh National Opera for 34 years has won his unfair dismissal battle at the Court of Appeal.

Murray Johnston was dismissed in 2008 for reasons relating to his “capability” as a performer after “difficulties in the relationship” between the oboeist and music director Carlo Rizzi, the court said.

Delivering judgment in Welsh National Opera v Johnston [2012] EWCA Civ 1046, Lord Justice Maurice Kay said the difficulties began to appear in 1994, but it was only after rejoined the orchestra in 2004, after a three year absence, that “they took the form of criticism of Mr Johnston’s performance”.

He went on: “In due course, the criticisms centred upon three aspects of Mr Johnston’s playing, namely intonation, emission of sound and blending of sound. “The first two are concerned with the relationship between the musician and his instrument.

“The third is concerned with the relationship between the sound produced by a particular musician and the sounds produced by the rest of the orchestra.”

In 2006 Johnson attended an audition at which he satisfied the assessors, including Rizzi, on emission of sound and blending of sound.

“The audition was carried out with a piano accompaniment. Thereafter, criticism was substantially confined to the blending of sound which was said to be capable of assessment only in an ensemble situation,” Maurice Kay LJ said.

“The audition procedure was considered by WNO to be inapplicable to this type of perceived shortcoming. The issue did not go away and there was a volume of evidence about criticisms and communications through 2007 and into 2008.

“By July 2008 the relationship between the parties was deteriorating further and Mr Johnston instructed his solicitors.”

The musician raised a formal grievance about his treatment “suggesting that he had been undermined as principal oboeist”, and the WNO said it was considering disciplinary action against him.

Maurice Kay LJ went on: “The issue at the heart of this case relates to the procedure adopted by WNO in relation to the unresolved issue of blending of sound and ensemble playing.

“Essentially, WNO took the view that shortcomings of that kind were unsuitable for assessment through the audition process because such an assessment could only be carried out in full ensemble conditions.”

Instead, the opera dealt with the issue not under the ‘poor artistic performance’ procedure which it had agreed with the Musicians’ Union in 2003, but through a disciplinary procedure similar to the one in its handbook.

An employment tribunal concluded that WNO had acted reasonably, but the EAT disagreed, saying that the opera had made a “legal error” in its construction of the union agreement.

Maurice Kay LJ said it was “absolutely clear” that the disciplinary process in the handbook did not apply to poor performance by musicians.

He said the opera and union had decided that a fair procedure in relation to below standard artistic performance required an “objective element”.

Maurice Kay LJ went on: “Concerns about ensemble playing require the musician to be assessed in ensemble, either in audition conditions or, perhaps, in rehearsal and/or performance, with the panel concentrating on the musician in question.”

This may require a modified procedure in the union agreement to meet the circumstances of the case, he said, but it would “retain the protection against subjectivity which, as I see it, the musicians were granted by the poor performance procedure”.

Maurice Kay LJ dismissed the opera’s appeal and remitted the case to the employment tribunal.

“Because I consider that a finding of procedural unfairness is inevitable, I would remit solely for a remedies hearing,” he added.

Lord Justices Moore-Bick and Sullivan agreed.