Decision

Decision for 24/7 Elaine’s Minitravel Ltd & Slawomir Miroslaw Nowak

Published 11 April 2024

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

2. PUBLIC INQUIRY HELD AT PONTYPRIDD ON 8 FEBRUARY 2024

3. 24/7 Elaine’s Minitravel Ltd PG2008505

&

4. Transport Manager Slawomir Miroslaw Nowak

5. Background

24/7 Elaine’s Minitravel Ltd holds a Standard National PSV Operator’s Licence authorising 2 vehicles, granted on 9 February 2018. There are two company directors, Michael Jones and Elaine Jones. The transport manager nominated on the licence at the time of grant was William Crowley, until he resigned in August 2020. There have been periods of grace and other transport managers in position since then until Mr Slawomir Nowak was nominated on the licence on 18 May 2023. Slawomir Nowak resigned from that position on 8 January 2024, a loss of transport manager letter was sent to the operator by OTC staff on 10 January 2024 and the operator responded by submitting a request for a period of grace and an application to nominate the directors’ son, Wayne Jones, as transport manager. That application was refused, and the requested period of grace was granted until 10 April 2024.

The company was called to a public inquiry on 27 January 2022 to consider maintenance compliance failings.  At the hearing, further concerns came to light regarding drivers’ hours compliance and the case was part heard and adjourned to enable another call-in letter and additional evidence to be served prior to the re-convened hearing on 15 July 2022.  My decision of 4 August 2022 (included at page 183 of the operator’s PI Brief) made adverse findings under sections 17(3)(a), (aa) and (c) of the Act and a finding that the operator’s repute was severely tarnished. I suspended the licence for 28 days and attached a very specific audit undertaking (proposed by the operator itself) regarding systems for recording the use of vehicles authorised on the licence and systems for recording all work, whether within scope of EU drivers’ hours rules or not (e.g rail replacement work and school contract work). That audit report was required to be sent to my office in Caernarfon by 16 March 2023. The audit report that was submitted by the operator was dated 25 February 2023, but it was a maintenance audit that did not fulfil the terms of the agreed undertaking.  Following correspondence from OTC staff, a further audit report was submitted by the operator dated 4 May 2023.  However, that report again did not cover the specific areas set out in the undertaking. Both audit reports identified issues of non-compliance and that triggered a Driver and Vehicle Standards Agency (“DVSA”) referral and investigation into maintenance and drivers’ hours systems.  Vehicle Examiner (“VE”) Mark Davies and Traffic Examiner (“TE”) Christopher Price carried out an investigation at the operator’s premises on 11 September 2023.  Their reports following investigation were “unsatisfactory” and highlighted numerous concerns including the following:

• Inspection/maintenance records – evidence of the company recording false VOR (vehicle off road) status for a vehicle to hide vehicle use; safety inspection records not properly completed or missing; late safety inspections;

• The same shortcomings found during the previous DVSA investigation that resulted in call to inquiry in 2022 still present with the annual test failure rate still significantly higher than the national average;

• Prohibition notice issued for driver defects that were not reported by the driver but had been identified on the previous 2 maintenance inspection reports and which were not signed off as roadworthy; prohibition issued to another vehicle 712 km after it had received a safety inspection for power steering drive belt failure imminent.  Damage or evidence of incorrect fitment should have been identified at the safety inspection;

• Driver defect walkaround and reporting system inadequate with evidence of defects which should have been reported by drivers being found regularly at safety inspections;

• Ineffective wheel and tyre management systems and vehicle emissions monitoring;

• Ineffective system for checking of drivers’ hours records and downloaded data with work sheets used to record domestic work not meeting the legislative requirements, no vehicle VRM or duty time recorded;

• No working time records available for inspection.  The operator claimed that drivers did not drive within scope of EU rules to reach the threshold however analysis of the driver card data supplied showed driver cards used exceeding the threshold for all 3 drivers for whom records were supplied; and

• Transport manager was only partially aware of the systems in place and demonstrated ineffective control of the transport operation.

Director, Michael Jones, wrote to my office on 23 March 2023 to notify me that he had been convicted and sentenced in respect of offences at Swansea Magistrates’ Court on 13 March 2023. He was convicted of 2 offences of driving a vehicle whilst it was subject to a prohibition notice, contrary to section 71(1)(a) of the Road Traffic Act 1998 on 22 June 2022 and on 1July 2022 and was fined £500 in respect of each offence and ordered to pay costs of £1,600. The prosecution statement of facts and full details of the convictions are included at pages 192-197 of the PI Brief).

The operator submitted a variation application on 18 August 2023 requesting an increase in vehicle authorisation from 2 to 6 vehicles, removal of the operating centre at Part Yard, Westfield Industrial Park, Waunarlwydd, Swansea, SA5 4SF and its replacement with a new operating centre at Unit 7, Westfield Industrial Park, Waunarlwydd, Swansea, SA5 4SF.

The operator was called to a public inquiry at Pontypridd to consider these issues, including its variation application. Slawomir Nowak, transport manager, was also called to the inquiry to consider whether he continued to meet the requirements to be of good repute and to be professionally competent. He was still in post as transport manager at the time that the letters calling the operator and transport manager to public inquiry and the PI Briefs were sent, although he had resigned by the time of the hearing.

6. Hearing

The Public Inquiry was listed for 8 February 2024 at 10.00am at the Office of the Traffic Commissioner for Wales in Pontypridd.  It went ahead and was concluded on that date.  Michael Jones, director of Elaine’s, appeared on behalf of the company and was represented by Murray Oliver, solicitor, of Smith Bowyer Clarke. Slawomir Nowak, former transport manager of Elaine’s, attended unrepresented.  VE Mark Davies and TE Christopher Price attended from the DVSA, remotely via Microsoft Teams.

7. Evidence

In addition to the papers in the PI Briefs for the operator and transport manager I had also been provided, in advance of the hearing, with additional evidence.  On behalf of the operator this consisted of witness statements from both company directors (Michael and Elaine Jones), the finance documents which were requested in the call-in letter (which demonstrated that the financial standing requirement was met), and various maintenance and drivers’ hours records. The operator had been directed to send specific maintenance and drivers’ hours data and records to the DVSA witnesses and they had prepared supplementary statements for the Public Inquiry hearing having reviewed those documents (VE Davies’ statement of 24 January 2024 and TE Price’s statement of 29 January 2024).  Those supplementary statements were served on the operator and transport manager in advance of the inquiry hearing.  Slawomir Nowak submitted written representations dated 24 January 2024.

The evidence of the DVSA witnesses (VE Davies and TE Price) included in the public inquiry briefs and their supplementary statements was adopted by them and Mr Oliver indicated that the evidence was not contested by his client. Similarly, Mr Nowak did not contest the DVSA witness’ evidence.  Both witnesses were questioned by me and by Mr Oliver, in particular regarding the recent brake test reports (which had been carried out incorrectly with the wrong vehicle class recorded on the test machine (Class VII vehicle, not PSV) meaning that the vehicle was tested against incorrect criteria), and the raw tachograph data submitted by the operator which did not cover the period specified in the call up letter. TE Price was recalled at Mr Oliver’s request specifically on that point, but his evidence both in his written supplementary statement dated 29 January 2024 and in his oral evidence at the hearing was that the digital tachograph data provided by the operator did not cover the three-month period specified in the call up letter but a period from October 2022 to January 2023.

Michael Jones and Slawomir Nowak gave evidence, responding to questions from both Mr Oliver and from me.  I heard closing submissions from Mr Oliver on behalf of the operator and from Mr Nowak and I then reserved my decision.  

8. Findings of fact

It is clear from the DVSA evidence, which was accepted by the operator, that safety inspections were not all carried out when they should have been – the DVSA safety inspection summary (page 136 of the PI Brief) indicates that of the records checked by VE Davies, 32% of the inspections were late. Accordingly, I find that statements made by the operator when applying for the licence have not been fulfilled, namely that vehicles would be inspected at the six weekly intervals the operator promised they would be and find that section 17(3)(a) of the Act is made out.

The evidence is clear that the operator failed to comply with the undertakings on the licence that its vehicles would be kept fit and serviceable as evidenced by the prohibition notices issued and very poor MOT pass rate at the time of VE Davies’ visit in September 2023 and at the time of the inquiry hearing.  Since the DVSA investigation there had been two further MOT failures, with multiple failure items for road safety critical defects such as brake systems. There were numerous instances of driver reportable defects found at safety inspections, with some of those defects described as “dangerous” by the examiner.  At the fleet check carried out by VE Davies on 11 September 2023 he discovered that the Anti-Lock Braking System (“ABS”) and Electronic Stability Warning Control (“ESC”) warning lights were illuminated on vehicle BO52BUS.  This defect resulted in him issuing a prohibition notice.  However, it was evident from his analysis of the two previous maintenance inspection reports for this vehicle that the ABS lamp had been illuminated from 10 July until the date of his prohibition notice, but no drivers had recorded it and there was no evidence that it had been reported.  The vehicle had been driven by the company director, Michael Jones, on three separate dates during that period and he had failed to record the defect, nor have it repaired.  The most recent driver defect report dated 4 days before the prohibition notice showed “NIL” defects for the vehicle and was completed in only 23 seconds.

It was accepted by the operator at the previous public inquiry that it was failing to comply with the undertaking that it would observe the rules on drivers’ hours and tachographs and keep proper records. Prior to that inquiry hearing in January 2022, it was accepted that no records were kept in compliance with working time directive requirements nor records of work done in reliance of exemption from EU drivers’ hours legislation (i.e. rail replacement work). Given that the operator is heavily engaged in rail replacement work, I was advised that it recognised the need to get things right in terms of recording drivers’ hours and working time. I heard evidence then in that regard and assurances were given that I could trust this operator to comply going forward.  The operator proposed a bespoke undertaking to be attached to the licence to give me the assurance that it was taking its obligations seriously and implementing the changes discussed in terms of recording all driving and working time.  However, on the evidence before me included in the PI Brief and the supplementary statement of TE Price, I find that the operator has failed to implement an effective or compliant system for recording the use of all authorised vehicles and all work done, whether under EU or domestic drivers’ hours rules.  It also failed to comply with the bespoke undertaking agreed to at the previous public inquiry in that regard and Michael Jones sought to blame others, including its professional advisers, for its failure.  Accordingly, I find that section 17(3)(aa) of the Act is made out.

It is undisputed that the operator has been issued with prohibition notices by the DVSA in the past 5 years. Accordingly, I find that section 17(3)(c) of the Act is made out.

I find that there have been persistent operator licence failures, with many of the same failures found by the DVSA in September 2023 that were present in 2021, and in relation to which I made adverse findings in my decision of 4 August 2022, when I found the operator’s repute was severely tarnished. Those same failures persisted as at the date of this latest public inquiry, and I find that there has been a wholly inadequate response by the operator. There have been insufficient changes made to ensure future compliance, with the supplementary reports prepared by the DVSA examiners for this public inquiry presenting a very poor picture of current compliance and, indeed, the MOT pass rate has worsened since their original reports. The initial fail rate at MOT is now 54.55%, which is almost four times higher than the national PSV average (12.17%) and I noted that multiple failure items were found at the two most recent annual tests shown on the MOT report within the PI Brief.  The operator also has a high prohibition rate, with its mechanical prohibition rate almost three times higher than the national PSV average (44.44% compared to the national average of 16.39%). There was ineffective management control and insufficient procedures in place to prevent the operator licence compliance failings found by the DVSA.  There were ineffective analysis procedures in place to detect drivers’ hours (EU and domestic) and working time infringements. There was ineffective or insufficient driver training with insufficient monitoring and disciplinary procedures in place, particularly as regards driver walkaround checking and completion of the driver defect report.  All of these findings, but particularly the absence of any evidence to show, even by the date of the inquiry, that proper brake testing was being carried out or that vehicles were being properly maintained according to schedule leads me to find that road safety and fair competition have been significantly compromised by the operator’s actions.

Slawomir Nowak was the nominated transport manager on this licence for a relatively short time in the licence’s six-year history.  He acted in that capacity from 18 May 2023 until his resignation on 8 January 2024 – a period of just over 7 months.  Clearly many of the compliance failures set out in the evidence occurred before he was involved with the operation. I have not included any of the evidence that pre-dates his tenure as transport manager in my consideration of whether he continues to meet the requirements to be of good repute and professionally competent as required by the relevant legislation.

However, I find that many of the serious compliance failures did occur whilst he was transport manager on the licence, including the seriously deficient driver defect walkaround check system and system for reporting defects.  His response to the 23 second walkaround check when pointed out to him was that he wasn’t given a log in for the app prior to the drivers using it.  He clearly had no control over what drivers were doing in terms of walkaround checks or reporting and nor did he have an awareness of many other aspects of the transport operation, as highlighted in the DVSA report. When asked about why he had failed to pick up the concern raised by VE Davies in his public inquiry statement, which was that the brake tests being carried out on the vehicles were for the wrong class of vehicle (Class VII light goods vehicle and not PSV), meaning that they were assessed against the wrong criteria and were not fit for purpose, his response was that he had “no answer for that”. His evidence was that he tried to implement compliant systems for recording drivers’ hours and working time, but he accepted that he had failed in that regard.  The reason given was that drivers were not there when he was present and there was a reluctance on the part of the operator and those employed by it to follow his advice.  The concerning circumstances surrounding the prohibition issued by VE Davies on 11 September 2023, with ABS and ESC defects having been identified at the two previous inspections, the reports not signed off as roadworthy, but the vehicle then repeatedly driven by drivers (including one of the directors) all occurred on his watch as transport manager.  In his evidence, he accepted that he had not been in full control, particularly regarding the walkaround checks and brake testing. Accordingly, I find on the evidence and the balance of probabilities that Slawomir Nowak failed effectively and continuously to manage the operator’s transport activities, as required by the legislation.  

9. Considerations and Decisions in respect of the operator

I have weighed up the adverse findings set out above with the positive features in this case in considering regulatory action.  On the positive side, the operator co-operated with the enforcement investigation.  There have been no “S” marked prohibitions since the last public inquiry, and Michael Jones has recently completed IRTEC training to improve his knowledge and with a view to conducting vehicle maintenance inspections in-house.

Balancing these negative and positive features and having regard to the Senior Traffic Commissioner’s Statutory Document 10 (“Stat Doc 10”), Annex 4, I consider this case to be in the “severe” category. In determining whether the operator continues to satisfy the mandatory and continuing requirement to be of good repute in section 14ZA(2) of the Act I have had regard to Schedule 3 to that Act and the Senior Traffic Commissioner’s Statutory Document No. 2 on good repute and fitness.  It was accepted by Mr Oliver that the two convictions (which were quite properly notified to my office following his conviction and sentencing in March 2023) go directly to the question of repute.  These offences of driving a vehicle whilst it was subject to a prohibition notice were not before me at the time of the previous public inquiry, although it was suggested that they were.  Clearly the offences themselves post date the 2022 public inquiry call up letter, Brief and first hearing.  Reference may have been made to the pending DVSA prosecution on the second day of the hearing in July 2022, however there was at that stage no conviction or sentence and I had no evidence before me in relation to those charges. I did not consider or have any regard to those matters then. The offences are “road transport offences” within the meaning of paragraph 1 of Schedule 3 to the Act.  Paragraph 1(3) provides that a traffic commissioner shall determine that an individual is not of good repute if he has been convicted of road transport offences.  Although the licence is held by 24/7 Elaine’s Mini Travel Ltd, and not Michael Jones, and so revocation of the licence is not mandatory by virtue of Schedule 3, it is appropriate for me to have regard to Michael Jones’ conduct in committing those offences when considering the operator’s good repute, under paragraph 2(2)(b).  Operating a vehicle whilst it is subject to a prohibition notice represents a very clear and obvious road safety risk.  That offending, committed by one of the company directors, is highly relevant to the question of the operator’s repute.  I have also had regard to the evidence that Mr Jones drove a vehicle which had not been signed off as roadworthy at safety inspection and when prohibitable defects were present (ABS and ESC warning lights illuminated) and the recording of false VOR status to conceal vehicle use, which again goes directly to the question of repute and trust.

Even when balancing the positives, I find that I am no longer able to trust the operator.  I simply do not believe the assurances given that it will operate compliantly in future.  Despite being given an opportunity to demonstrate that it could operate compliantly following the public inquiry in 2022, the operator was not doing so at the time of the VE and TE visit in September 2023 and was still not doing so at the time of this inquiry hearing.  In Arnold Transport & Sons Ltd v DOENI (NT/2013/82) the Upper Tribunal said:

“The Tribunal has stated on many occasions that the operator licensing is based on trust.  Since it is impossible to police every operator and every vehicle at all times the Department in Norther Ireland (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator licensing regime.  In addition, other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field…cutting corners all too easily leads to compromising safe operation.  It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question.  It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.”

I ask myself the question posed in Priority Freight (2009/225), “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” I have had regard to the failures I have found proved which are serious and persistent.  The operator has failed to heed an earlier warning given at the last public inquiry.  It failed to fulfil the audit undertaking it proposed and agreed to at that inquiry and then sought to blame others for its failure.  As at the date of this inquiry, it was unable to demonstrate that it was complying with maintenance and drivers’ hours/working time requirements.  I therefore consider it highly unlikely that the operator will comply in the future.

I have considered the written evidence of Michael Jones as to the effect of regulatory action that I might take against the operator licence (“Effect of Sanctions” paragraphs 52 to 56). That is that revocation of the licence would certainly affect the business, but the business would be able to continue to provide the services of maintenance contractor to local PSV operators using the equipment and skills that Mr Jones has obtained. In submissions, Mr Oliver acknowledged and accepted that there was evidence before me which might make me consider taking the operator out of circulation.  He asked me to give the operator credit for steps already taken by the director, Michael Jones, in taking IRTEC training.  He also asked me to give credit to the operator for recognising where problems had arisen and having a commitment to “get things right.”  However, he did accept that there was evidence that when the operator has been given an opportunity to get things right it has not done so. He suggested that, by the thinnest of margins, I may be able to trust the operator to get maintenance and drivers’ hours compliance right in the future.

In considering the question posed in Bryan Haulage (No.2) (2002/217): is the conduct of the operator such that it ought to be put out of business? I had regard to the evidence and to Stat Doc 10. The operator has clearly compromised road safety and obtained a commercial advantage over other operators by persistently failing to keep its vehicles fit and serviceable or to ensure that the laws on drivers’ hours/working time were complied with.  A vehicle was deliberately driven on two occasions by one of the company directors whilst it was subject to a prohibition notice, resulting in criminal convictions.  The starting point for regulatory action is “severe”.  I also take the view that other operators who carry out their business in a compliant manner would be shocked if another operator were permitted to operate against this background.  In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative.  I find that the operator has lost its good repute  and I direct that the licence is revoked pursuant to adverse findings in terms of sections 14ZA(2), 17(1)(a), 17(3)(a), (aa), (c) and (e) of the Act.  To allow for an orderly running down of the business I direct that revocation of the licence shall take effect from 23:45 hours on 23 March 2024.

It follows that the application to vary the licence by increasing the authorisation of vehicles from 2 to 6, removing the named operating centre and adding a new operating centre is refused.

I have had regard to submissions made on behalf of the operator as to the effects of disqualification and to Stat Doc 10.  I have also reminded myself of the authority in David Finch Haulage (2010/29).  In that case, the Transport Tribunal said: “The imposition of a period of disqualification is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system.  Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary…”.

The Senior Traffic Commissioner’s Directions state that serious cases may merit disqualification of between 5 to 10 years and severe cases may merit disqualification for an indefinite period.  For a first public inquiry, the suggested starting point is between 1 and 3 years.  The operator has attended public inquiry as recently as 2022, where the same maintenance and drivers’ hours concerns were at issue and a specific audit undertaking was agreed to give me the assurance that drivers’ hours and working time recording concerns were being addressed by the operator and compliance would be achieved in that regard.  However, the operator failed to heed the warnings given and failed to fulfil that undertaking, resulting in the same failings being at issue yet again by the time of this inquiry.  I have already set out my reasoning for determining that this is a severe case, by reference to Annex 4 of Stat Doc 10.

Taking account of all the circumstances, I consider that a period of disqualification is necessary to meet the objectives of the operator licensing regime.  Acknowledging that this is a severe case but giving credit for the positives that I have found, I have decided to disqualify the operator and its directors from holding or obtaining an operator licence for a period of three years.  The disqualification order shall be in the terms set out at paragraph 2 of my Decision above.

10. Considerations and Decisions in respect of transport manager Slawomir Nowak

Slawomir Nowak was unable to demonstrate that he had complied with his duty effectively and continuously to manage the transport activities of 24/7 Elaine’s Minitravel Ltd, as required by legislation.  There were serious failures found by the DVSA which occurred on his watch as a professionally qualified transport manager. The role of the transport manager is a key one which Slawomir Nowak has failed to fulfil effectively, resulting in compliance failures and a clear risk to road safety.

In considering the good repute of Slawomir Nowak as transport manger I performed the same balancing act as set out above with reference to the negative findings and features that I have already set out above.  I have also considered the positive features to be weighed in the balance.  Mr Nowak has taken immediate steps following the DVSA adverse report, which was directly critical of him as transport manager, to address the shortcomings that were found.  He resigned from the licence, although he did acknowledge in his written and oral evidence that his biggest mistake was not coming off the licence sooner, when he realised that management and drivers were reluctant to make changes to ensure compliance.  He realises that he needs to improve his skills and knowledge as transport manager and has sought help in that regard from a local transport consultancy firm.  He did this soon after the DVSA intervention. He has also recently undertaken a Transport Manger Refresher training course and provided his certificate of successful completion in advance of the hearing.

Slawomir Nowak is the transport manager on one other licence – licence held by Veeboono Travel Ltd PG2048483 authorising 2 vehicles.  The sole director of that operating company is his wife.  He is not an employee of that business but does work as a driver for it.  He explained that the intention is that he will become an employee of that business.  If he were to lose his transport manager qualification that would have implications for his wife because her company would need to find a replacement transport manager for that licence. 

In considering whether his good repute is lost, rather than merely tarnished, I have had regard to relevant Upper Tribunal case law, including Angus Smales trading as Angus Smales Eventing (2014/058) when the Upper Tribunal confirmed that being a transport manager is far more than just holding the qualification. I find that Slawomir Nowak has not demonstrated the ability to meet the statutory duty and that continued to be the case until the time of his resignation shortly before the inquiry hearing, as evidenced by the recent maintenance and drivers’ hours documents. In the circumstances, and as was confirmed in Matthew Reynolds (2015/049), I must find that he has lost his repute as transport manager and no longer satisfies the requirements of section 14ZA(3) of the Act to be of good repute in accordance with Schedule 3 to the Act.  I have considered whether such a finding would be a disproportionate response but consider that it is entirely proportionate and, indeed, inevitable on the evidence before me.

Having concluded that Slawomir Nowak’s good repute is lost I must also disqualify him under paragraph 7B(2) of Schedule 3 to the Act from acting as a transport manager on an operator’s licence.  The disqualification is for a period of one year.  I do not set any formal rehabilitation measures, however he would be well advised to work with an experienced CPC holder exercising transport manager duties if he is to seek to persuade a Traffic Commissioner that he is capable of meeting the statutory duty in the future.    

Victoria Davies

Traffic Commissioner for Wales

 23 February 2024