Tag: law

Source: DW

Australia wants Google to pay for displaying local media content. In return, the tech giant has threatened to disable its search engine in the country. Could this confrontation set a precedent?

What’s happening in Australia?
Australia has proposed a bill that would oblige Google and Facebook to pay license fees to Australian media companies for sharing their journalistic content. Noncompliance would incur millions in fines. In response, Google has threatened to block Australian users from accessing its search engine should the bill become law.

Mel Silva, managing director of Google Australia and New Zealand, told an Australian senate committee her company had no other choice but to block access to Google’s search engine in Australia should the bill be adopted in its current form. Even though, she said, this was the last thing Google wanted.

Australian Prime Minister Scott Morrison in turn declared that his country would not be intimated, saying, “We don’t respond to threats.” He added that “Australia makes our rules for things you can do in Australia. That’s done in our Parliament.”

Why has the confrontation escalated?
Google has said it is willing to negotiate with publishers over paying license fees for content. The tech giant, however, argues Australia’s proposed law goes too far. It would oblige Google to pay not only when providing extensive previews of media content, but also when sharing links to the content. This, said Silva, would undermine the modus operandi of search engines.

The bill would also establish an arbitration model under which an Australian judge would determine how much Google should pay if the company fails to reach an agreement with a publisher. This mechanism is dividing opinions, with Google arguing it produces an incalculable financial risk for the company.

What’s at stake?
“Search engines earn considerable money from media content, whereas publishers earn little,” said Christian Solmecke, a Cologne-based lawyer specialised in media and internet law. Google, however, argues that publishers benefit from the platform, as users are directed to media content when it is indexed on the Google Newsfeed and elsewhere.

But publishers want a bigger share of the pie by receiving licensing fees. “Billions are thus at stake for Google,” said Solmecke. He doubts the tech giant will follow through on its threat and disable the search engine in Australia. “After all, that search engine is an elementary part of the digital world.”

But the row in Australia highlights a global dilemma. Recently, Google temporarily blocked certain Australian media content to some users in the country. The company announced the move had merely been a test run, though it was widely interpreted as a show of force: Oppose Google and you risk disappearing from its search results, facing dire economic consequences. For this reason, Solmecke said, “denying Google the right to use your content will remain a purely theoretical option.”

Is the EU planning a similar law?
In the spring of 2019, the EU adopted an ancillary copyright directive. All members states must now translate the directive into national legislation and adopt national ancillary copyright laws. Akin to the proposed Australian media bill, the EU directive aims to ensure publishers gain a share of revenue earned by internet platforms like Google when sharing journalistic content. Tech companies like Google generate revenue by, for instance, placing ads next to search results.

However, the directive does not place as many demands on companies such as Google and Facebook. “European and German ancillary copyright law is and will remain more narrow than the Australian bill,” said Stephan Dirks, a lawyer specialized in copyright and media law in Hamburg. Unlike the Australian bill, the EU directive allows tech platforms to display short media snippets for free. And it does not establish an automated arbitration model, either.

European confrontation looming?
Even though EU ancillary copyright law is more limited than the planned Australian law, experts do not rule out EU member states clashing with Google. “This gives us an idea how Google will react to the implementation of EU ancillary copyright law,” said Dirks. He recalls how Germany already introduced an ancillary copyright law in 2013, which prompted Google to threaten it would remove all media content from its search results if the law went into force. “That will certainly also be in the offing when the copyright reform has been implemented,” he predicted.

Solmecke, too, said the EU should keep a close eye on the standoff between Australia and Google. “The reaction of big tech companies can be seen as pointers toward their future conduct in Europe,” he said.

France has already translated the 2019 EU ancillary copyright directive into national law. Google subsequently struck a deal with French publishers over license fees.

Most EU member states are yet to pass their own ancillary copyright laws. It thus cannot be ruled out that Google’s threats will have an impact on national lawmaking processes, said Dirks.

New tax rules you should know about

By Jean du Toit for IOL

The President has given effect to the 2020 tax proposals by signing three tax Acts into law. On 15 January 2021, the President gave his assent to the Rates and Monetary Amounts and Amendment of Revenue Laws Act No. 22 of 2020 (“Rates Act”), the Taxation Laws Amendment Act No. 23 of 2020 (“TLAA”) and the Tax Administration Laws Amendment Act No. 24 of 2020 (“TALAA”). These Acts were promulgated on 20 January 2021.

The Rates Act gives effect to changes in tax rates and certain monetary thresholds, whereas the TLAA and the TALAA contain more profound technical and administrative changes. Highlighted below are 10 key changes taxpayers need to know.

1.Withdrawal of retirement funds upon emigration

From 1 March 2021, taxpayers will no longer be able to access their retirement benefits upon completion of the emigration process through the South African Reserve Bank, commonly referred to as “financial emigration”. After this date, taxpayers will only be able to access their retirement benefits if they can prove they have been non-resident for tax purposes for an uninterrupted period of three years. Importantly, taxpayers can still access their retirement benefits under the old dispensation if they file their financial emigration application on or before 28 February 2021. If you miss this deadline, your retirement benefits will be locked in for a period of at least three years

2.Anti-avoidance rules bolstered for trusts

The anti-avoidance rules aimed at curbing tax-free transfers of wealth to trusts have been strengthened to prevent persisting loopholes. The amendment is directed at structures where individuals subscribe for preference shares with no or a low rate of return in a company owned by a trust connected to the individual. Ongoing changes to these rules again bring into question the thinking that trust structures are tax efficient.

3.Reimbursing employees for business travel expenses

Employees are not subject to tax on an amount paid by their employer as an advance or reimbursement in respect of meals and incidental costs where the employee is obliged to spend a night away from home for business purposes, provided it does not exceed the amount published in the Government Gazette. The TLAA includes an amendment which extends the treatment to expenses incurred on meals and other incidental costs while the employee is away on a day trip. It is important to note that this will only apply if the employer’s policies expressly make provision for and allows such reimbursement.

4.Relief for expats confirmed

Due to the travel restrictions under the Covid-19 pandemic, the days requirement for the foreign employment exemption has been reduced from 183 days in aggregate to 117 days. The relaxation only applies to the aggregate number of days and the requirement that more than 60 of the days spent outside South Africa must have been consecutive remains applicable. This amendment is not a permanent fixture and will only apply to any 12-month period for the years of assessment ending from 29 February 2020 to 28 February 2021.

5.Employer provided bursaries

The Income Tax Act makes provision for the exemption of bona fide bursaries or scholarships granted by employers to employees or their relatives. Historically, employees used this exemption as a mechanism to structure their remuneration package to reduce their tax liability. The exemption will no longer apply where the employee’s remuneration package is subject to an element of salary sacrifice; that is where any portion of their remuneration is reduced or forfeited as a result of the grant of such a bursary or scholarship.

6.Tax treatment of doubtful debts

The doubtful debt allowance provision has been amended to bring parity between taxpayers that apply IFRS 9 and those who do not. Where the taxpayer does not apply IFRS 9, the amount of the allowance is calculated after taking into account any security that is available in respect of that debt.

7.Roll-over amounts claimable under the ETI

The Employment Tax Incentive Act has been amended to encourage tax compliance. The amendment determines that excess ETI claims of employers that are non-compliant from a tax perspective will no longer be rolled over to the end of the PAYE reconciliation period.

8.Estimated assessments

The terms under which Sars may issue an assessment based on an estimate has been expanded. Sars may now issue an estimated assessment where the taxpayer fails to respond to a request from Sars for relevant material. The amendment also bars the taxpayer from lodging an objection against the estimated assessment until the taxpayer responds to the request for material.

9. Sars can withhold your refund if you are under criminal investigation

In terms of the Tax Administration Act, Sars is entitled to withhold refunds owed to taxpayers in certain circumstances. The TALAA expands these provisions to determine that if you are subject to a criminal investigation in terms of the Tax Administration Act, Sars is entitled to withhold any refund it owes you, pending the outcome of the investigation.

10.Criminal sanctions for minor tax offences

Previously, a taxpayer would only be guilty of a criminal offence for non-compliance under the Tax Administration Act if they “wilfully” failed to comply with their tax obligations. With the new amendments, non-compliance will constitute a criminal offence where it is as a result of the taxpayer’s negligence. In other words, intent is no longer required; where you are non-compliant as a result of ignorance of your obligations, you may be found guilty of a criminal offence. These offences are subject to a fine or imprisonment of up to two years.

Final comments

Taxpayers need to speak to their advisors to understand these changes and special heed must be paid to the administrative changes that are now law. The most important change that applies to all taxpayers is the one that criminalises negligent non-compliance. This and other administrative changes mean that taxpayers will be held to a higher standard, which serves as a cue for everyone to take ownership of their tax affairs.

 

By Loyiso Sidimba for IOL

Foreign nationals living in Gauteng will soon be barred by law from doing business in the province’s townships unless they obtain permanent residency status.

The Gauteng provincial government wants to stop foreign nationals from operating some businesses in the townships as part of plans to revitalise the economy in a number of the region’s most densely populated areas.

A proposed new law drafted by the Gauteng economic development department and premier David Makhura’s policy unit will reserve certain economic activities in townships for South African citizens and people with permanent residency status.

The draft Gauteng Township Economic Development Bill released this week does not identify the specific businesses it is targeting.

However, the proposed law will only assist township-based enterprises in agriculture, construction, manufacturing, transport, communications, tourism and services if they are owned by South African citizens or holders of permanent residency status.

Stakeholders making submissions on the bill will have to suggest the sectors and sub-sectors that should be reserved for South Africans and permanent residents.

Permanent residency is obtained by foreign nationals who have been residing in the country on the basis of their work permits for a minimum of five years, their spouses and the dependants of South African citizens/permanent residence permit holders.

It can also be obtained by foreign nationals who intend to establish a business in the country and are financially independent, among other criteria.

According to the draft bill, there will be a percentage of provincial government procurement set aside for township-based enterprises.

The proposed law will also establish specific procurement rules and programmatic support to allow the government and its main contractors to buy from a large group or groups of township-based enterprises.

The government’s contractors will be compelled to spend a certain percentage of their procurement budgets on town-based enterprises, entrepreneurs and co-operatives.

A year ago, Justice and Correctional Services Minister Ronald Lamola revealed that the government was developing tough legislation to prevent foreign nationals from operating in certain sectors of the economy but denied that this was protectionism.

At the time, Lamola said his small business development counterpart, Khumbudzo Ntshavheni, was “developing legislation in relation to foreign nationals doing business in our country and which sectors of the economy they can play in, where and how.”

He assured foreign nationals that the country was not about to “wake up” and have a massive deportation of Zimbabweans, Mozambicans and Lesotho nationals.

However, Lamola said that there was a need to put in place legislation to in order to strike a clear balance that will help the government to grow the economy for the benefit of everyone, but still enable it to set aside some sectors that need regulation, and for it to be clearly stipulated that these are for local citizens.

Gauteng Premier David Makhura, at the time of advocating for relaxations to lockdown, warned of massive job losses in the province due to the Covid-19 pandemic, warning the economic impact would be more than at first anticipated and have a ripple effect across the whole economy.

Meanwhile, a march held in Pretoria this week against foreign nationals – targeting specifically Nigerians and Zimbabweans – has been condemned by the Centre for Human Rights at the University of Pretoria.

The march organisers protested about illegal migrants and drug trafficking, but the centre’s Professor Frans Viljoen said this kind of march underlined the need for government to cultivate social cohesion between South Africans and foreign nationals.

“It is evidently wrong to target people from particular countries or label them as criminals, drug dealers or persons responsible for the social ills in the country,” he said.

“Such rhetoric only seeks to reinforce xenophobic and populist narratives, from which South Africa strongly distances itself, both constitutionally and in the 2019 National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances.”

Gauteng is currently home to the highest number of foreigners in the country.

By James de Villiers for Business Insider SA

Media law experts believe WhatsApp admins in SA may be held liable for false information shared on their groups.

However, they would need to know that the information being shared is false, and do nothing about it.

Knowingly sharing fake news is a crime subject to 6 months imprisonment under SA’s Covid-19 disaster regulations.

Administrators of WhatsApp groups in South Africa may be held criminally liable if fake news is shared in the group, but only if they are aware that the information being shared is incorrect.

Under South Africa’s coronavirus disaster regulations, spreading false information, colloquially known as fake news, about the novel coronavirus and Covid-19 with intent to deceive is a crime with up to 6 months imprisonment.

PPM Attorneys communications lawyer Lucien Pierce believes Whatsapp group administrators who were aware that false information is being shared may also be held liable.

Pierce said the disaster regulations, however, make it clear that the fake news has to be spread with malicious intent, and therefore the administrator will have to know that the information being shared is false.

“Many people, like my mom, share many things during the course of a day which is false but which they do not know is false, and they, therefore, cannot be found liable,” Pierce told Business Insider South Africa.

“The same is true for an administrator: they would have to know that the information being shared is false. If they do not correct the information, or do nothing to stop it, they can then be held liable.”

Von Seidels copyright lawyer Salomé le Roux explained that a precedent has been set in South Africa where a court held a person who was tagged in a defamatory Facebook post jointly liable for the defamation in the post.

She said the ruling meant that anyone who participates in the publication or is part of the “publication chain” of defamatory material – or, under the disaster regulations, spreading of fake news – can be held liable.

A WhatsApp administrator is deemed to part of the “publication chain” as they are deemed to have created the group and has control over who is added and what is posted there, Le Roux told Business Insider South Africa.

“If someone [therefore] posts something defamatory [or false] and the WhatsApp admin sees it and does nothing, it is the same as if he was tagged on a defamatory Facebook post, but did not remove the tag and remains associated with the post,” Le Roux said.

Webber Wentzel media law expert Dario Milo said it is highly unlikely that someone will be held liable as the intent to deceive needs to be proved.

“[Only] once an administrator has knowledge that someone has posted fake news, and does not act to remove it from the group, he or she will be at risk of contravening the [disaster] regulation,” Milo said.

Source: LabourNet

According to the promulgation of the amendments to the Unemployment Insurance- and the Basic Conditions of Employment Acts during 2019, parents are now entitled to take ten (10) days Parental Leave per annum.

Payment for the aforementioned leave can be claimed from the Unemployment Insurance Fund. Such payment will be determined by the Department of Labour. Employers are therefore not legally obliged to pay employees for time off due to Parental Leave. The payment for Parental Leave is therefore similar to that of unpaid Maternity Leave as regulated by the Basic Conditions of Employment Act.

Parental Leave will apply to all employees who do not qualify for maternity leave. These employees will be entitled to ten (10) days unpaid Parental Leave when their child is born or when an adoption order is granted.

In cases of adoption of a child under the age of two (2) years, the adoptive parent will be entitled to ten (10) weeks of Adoptive Leave (two months and two weeks). Where there are two (2) adoptive parents, the one will be entitled to ten (10) weeks Adoptive Leave and the other will be entitled to ten (10) days Parental Leave.

In the event of a surrogacy agreement, the one parent will be entitled to ten (10) weeks Commissioning Parental Leave whilst the other will qualify for ten (10) days Parental Leave.

Employers are advised to amend their leave policies and/or clauses in their contracts of employment dealing with leave to include the aforementioned. Failure to do so will not revoke the entitlement to parental leave but will automatically incorporate it into the contract by virtue of the amendment to legislation.

The City of Cape Town has published its amended traffic by-laws for public comment.

If passed, changes will include:

  • Strict new rules on using smartphones while driving will be applied
  • Mobile phones may be impounded (rather than be destroyed or auctioned off) if a motorist is caught using a handset while driving
  • Confiscated phones may be donated to neighbourhood watches, NGOs, or non-profit organisations
  • Motorists will have a number of opportunities to get their phones back first

Be wary of recorded conversations

Contrary to popular belief, companies may be within their rights to secretly record conversations with employees and use that information against them in a court of law. However, the reverse is also true.

Nicol Myburgh, Head of the Human Resource Business Unit at CRS Technologies, says this has the potential to significantly change the dynamic in the workplace.

According to Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), it is not illegal to secretly record a conversation you are party to. But it is still illegal to do so as a way of intercepting communications to commit an offence, for example obtaining a person’s bank account information.

“The argument that recording these conversations infringes on an employee’s (or employer’s) right to privacy is outweighed when using the recording in court is in the interests of justice. Of course, there is nothing prohibiting the addition of an explicit clause in employment contracts that mitigates against the risk of having communications intercepted.”

Technology has made it incredibly easy to record conversations without other parties being aware of it. Most smartphones and tablets come standard with audio recording features, making it virtually undetectable when somebody runs the app and puts the phone or tablet out of sight.

“Often, these conversations can be used as evidence in disciplinary hearings and other disputes even before they go to the CCMA or court. Further complicating matters is that courts do not hold privacy rights as absolute. Instead, they take other factors into account that can trump privacy rights.”

An example of this is in Harvey v Niland, where evidence was obtained by hacking into the respondent’s Facebook account. Evidence can therefore be presented in various forms and not necessarily only in the form of an audio recording.

Nevertheless, it remains in the best interests of either party to obtain recordings legally. From an employer perspective, fair process must be followed, with the employee being given an opportunity to respond to the evidence presented against them.

“From a legal perspective, it should also be noted that either party can record a conversation that they are part of. But if you are a third party, you need informed consent from one of the other parties to legally record that conversation. It is often this consent that confuses people into thinking all parties must agree to have a discussion recorded.”

Of course, if the recording is inaudible then it cannot be admissible. Myburgh says that employers or employees therefore need to ensure that the audio can be heard, and that the data is stored in a safe place to avoid it being lost, deleted, or edited in a way that will also make it inadmissible.

“Companies are operating in a dynamic, technology-driven environment. It should always be assumed that any conversation or meeting will be recorded, like assuming all work email will be read by a supervisor. In this way, both the employee and employer can ensure no mismanagement takes place.”

You could be jailed for lying on your CV

By Tom Head for The South African

The National Qualifications Amendment Bill is not here to play, ladies and gentlemen. The adjustment to the existing legislation comes with some pretty stern updates, which aims to clamp-down on dishonesty from applicants who embellish the truth on a CV.

The South African Qualifications Association (SAQA) will be charged with monitoring the registered qualifications of each citizen in South Africa. That’s quite the task for such a modest regulatory body, but the ANC has voted the move through in Parliament.

What is the National Qualifications Amendment Bill?

Cyril Ramaphosa now has the final say on what happens next – it’ll be his decision on whether the government should plough ahead with the proposals should they remain in power after Wednesday 8 May.

The bill isn’t likely to impact working-to-middle class workers too much, but it will serve as a deterrent to citizens applying for high-profile jobs. Executives, CEOs and even our politicians will be subject to rigorous background checks. If they are found to be lying about their educational history, stiff penalties await:

“Any person convicted of an offence in terms of this act is liable to a fine or to imprisonment for a term of no longer than five years, or to both a fine and such imprisonment.”

“Any person, educational institution, board member or director may be ordered to close its business and be declared unfit to register a new business for a period not exceeding 10 years.”

Lying on your CV could soon be a serious legal issue

The punishment is not retroactive – so if your name is Jacob Zuma or Hlaudi Motsoeneng, you can breathe a sigh of relief. But if Ramaphosa decides to give this the green light, you may well have told your last porkie on a resume.

As IOL report, 97 national qualifications and 95 foreign qualifications were misrepresented between last October and November. That increased the total number of fraudulent applications up to 1 564 over the past 10 years.

The bill also aims to publish a “name and shame” list for those who try and push their luck just a little too far. So, if your CV is looking a little bare at the moment, try and think outside of the box – and not outside of reality.

 

By Marelise van der Merwe for Fin24

A coalition of artists, writers and publishers has written to Trade and Industry Minister Rob Davies to challenge the Copyright Amendment Bill, due to be adopted by the National Council of Provinces on Wednesday.

The coalition comprises writers, book and music publishers, film directors, producers, musicians, performing artists, film and television workers, content creators and business people.

These include representatives from heavyweights like Kagiso Media, NB Publishers, Sony, Warner, Universal, Juta, the Recording Industry of SA, the Independent Black Filmmakers Collective, Media24 Books, DALDRO, the Music Publishers’ Association of SA, the Visual Arts Network of SA, the David Gresham Entertainment Group, the Academic and Non-Fiction Authors’ Association of SA, Sony/ATV, Shuter & Shooter, the Publishers’ Association of SA (PASA), and Pearson SA.

The Copyright Amendment Bill seeks to update South Africa’s four-decade-old copyright law. The Department of Trade and Industry argues it will protect authors, composers, artists and other professionals in the publishing sector, and that it will improve access to educational materials. It has also previously argued the Bill will address a lack of formalisation in the creative industry.

‘Devastating’

However, the coalition’s letter, published in the Sunday Times on March 17, says the Bill has deviated from its “commendable” goals and now carries “unintended negative consequences”. The letter lists six key concerns about the Bill, calling it potentially “devastating” to the creative industry.

“You have stated in correspondence to some of our member organisations that ‘the cost of procuring educational material in South Africa is very high, therefore flexibilities will be incorporated with teaching exceptions,'” the letter states.

“Our concern is that these ‘flexibilities’ or exceptions from copyright protection will have a devastating impact on the publishing industries.”

Job losses, revenue nosedive

The Bill will lead to job losses, the writers argue, as academic publishing becomes less financially viable, forcing publishers to close. The letter cites an impact assessment by PwC and PASA which found that 1 250 jobs – nearly a third in the industry – would likely be lost due to implementation of the Bill.

The same report, though this is not mentioned in the letter, found that the Bill could see a 33% decrease in sales, equivalent to R2.1bn, plus a decrease in exports of local titles.

The letter argues there will be an additional impact on the film industry, which – according to an National Film and Video Foundation report – in 2017 raised its level of production by over R12bn.

Another concern, according to the letter, is the impact on satellite industries, as the Bill will mean limited revenues for costly projects. “This will have a knock-on effect, damaging the numerous service industries that support productions, especially in the Western Cape.”

The Bill also creates “uncertainty around ownership and royalties” by permitting free re-use and therefore threatening production investment, the letter adds.

According to the missive, the Bill is “vague and imprecise”, and will need to be tested in courts over several years “requiring content creators to fight to defend rights that should be theirs automatically”, which will be costly and time-consuming.

Even where jobs aren’t lost, the Bill will cause loss of income to working creatives, the coalition says. “This will remove the incentive to write, produce and publish works, since the Bill allows [work] to be copied and republished with impunity, often free of charge.”

Big tech companies will cash in

Related to this is concern over the benefit to international tech corporations, who – according to the coalition – will be able to access and republish creative and research work without having to pay fair royalties or usage fees, and then monetise this content by licensing it or selling advertising around it, without the original creators seeing a cent.

Lastly, the writers say, South Africa’s body of knowledge will be reduced rather than increased. “When the publication of academic writing and research no longer pays, South African writers will stop writing, and publishers will stop publishing. This will mean less South African publishing will be available,” they argue.

“Imported foreign material will fill the gap, leaving our students to learn generic ideas from the global north, not strictly applicable to the African and South African situation.”

Dismissals require relevant evidence

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

Even if an employee has committed murder, dismissal will not be upheld by the CCMA or a bargaining council where there was insufficient evidence brought to prove guilt.

Providing convincing proof of guilt is a factual and skilful exercise requiring:

  • Testimony that is not contradictory;
  • Evidence that, after having been challenged by the accused employee, still holds water;
  • Documents that are validated and that clearly show up the employee’s misconduct;
  • Evidence that is corroborated by other evidence;
  • Testimony from credible witnesses;
  • Evidence derived from thorough and honest investigation; and
  • Evidence that makes the truth look like the truth.

Thus, proving one’s case depends on the bringing of evidence that will persuade the presiding officer that one’s allegations or claims are true and genuine.

However, it is not enough to bring strongly supported or incontrovertible evidence. Parties need to further ensure that the evidence they bring is relevant to the case.

For example, if an employer wishes to convince an arbitrator that an employee stole petty cash it is pointless for the employer to bring solid proof that the employee’s work performance is poor because this is irrelevant.

At the same time it is most infuriating for parties who have gone to the trouble of collecting genuine, solid and relevant evidence only to see the arbitrator ignore this evidence.

Fortunately the parties do have recourse to the Labour Court if a CCMA arbitrator disallows or ignores relevant and legally permissible evidence in making his/her award.

It is not always easy for the presiding officer to decide if evidence is relevant or not because:

• the presiding officer may nor be properly trained to be able to understand what is and is not relevant.

• of lack of clarity of the evidence itself.
• the evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his/her work. However, the employee might tell the arbitrator that the employer has been victimising him/her for weeks on end. While this seems, on the surface, to be irrelevant, the employee may be able to show that it was the victimisation that caused the poor performance or that the poor performance allegations are false and are part of the victimisation campaign.

It is therefore crucial that parties ensure that they bring their evidence in such a comprehensive, clear and persuasive manner that it cannot be ignored by a fair arbitrator or disciplinary hearing chairperson.

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