TRANSPORT AND ALLIED WORKERS UNION (K) V AFRICAN SKY CHARTERS [2013] KEELRC 527 (KLR)

The court analysed the award against the four limbs of Rule 32(1). The original award was based on Section 5(2) of the repealed Trade Disputes Act, and the judge had made findings of fact that the Claimant was the correct union, there was no rival union, and a simple majority of 10 out of 15 employees had been recruited. The applicant disclosed no new facts, and subsequent resignations could not alter the position since membership is assessed at the time of the recognition application. The resignations were earlier found to be products of employer intimidation.

The respondent argued that three employees had resigned and a 2010 survey showed diminished support, so the union no longer commanded a simple majority. The original judge rejected the resignations as voluntary, finding they resulted from harassment and intimidation, and declared the employer's survey an illegal activity amounting to intimidation. On review, the court reaffirmed that the threshold of 51% (10 of 15 employees) must be assessed at the time of application, and nothing on record showed the threshold was not met then.