Motshwaiwa v Pioneer Foods & CCMA, relating to an alleged unfair dismissal and a review application under the Labour Relations Act, dealt with procedural fairness and substantive fairness of an employee who was dismissed and who already had a final written warning and the credibility of evidence.


Motshwaiwa sought to overturn the CCMA’s arbitration award that upheld Pioneer Foods’ dismissal of him for reporting to work under the influence of alcohol. The CCMA found his dismissal both procedurally and substantively fair. Motshwaiwa was dismissed after a breathalyser test indicated a positive result while he was on a final written warning.


Pioneer Foods requires all employees to undergo a mandatory breathalyser test upon entering the premises. Employees who test positive are sent home and face disciplinary action according to the company’s code. Motshwaiwa, a senior employee aware of this policy, attempted to evade the test by entering through a different gate but was caught by security. His breathalyser results showed a 0.085% alcohol level, leading to his dismissal. Motshwaiwa claimed bias, arguing that the hearing’s chairperson travelled to the hearing with the initiator and suggested his headache medication caused the positive result, insisting it was his first offence.


Acting Judge Ntsoane reviewed the procedural and substantive fairness of the case. The court assessed whether the chairperson’s involvement indicated procedural unfairness due to bias. It found no evidence of bias, noting that the chairperson was performing routine duties and that the investigation was conducted by another party.


On substantive fairness, the court emphasised the significance of the final written warning as a last chance, warranting dismissal upon repeat offences. It dismissed Motshwaiwa’s claim that his misconduct differed from the final warning, as both incidents involved reporting to work under the influence of alcohol.


The court found no irregularities in the commissioner’s evaluation of evidence and credibility, highlighting that the commissioner thoroughly considered the conflicting accounts and reasonably accepted the employer’s version based on the evidence. The court underscored the seriousness of Motshwaiwa’s actions as a senior employee attempting to avoid the breathalyser test.



The court dismissed the review application, finding no reviewable irregularities. It concluded that the commissioner appropriately considered the evidence and reached a reasonable decision, affirming the substantive and procedural fairness of Motshwaiwa’s dismissal.

For further information, individuals may contact SchoemanLaw Inc. for guidance.