Decision

Written decision for JJC Hire Ltd (OC1100129) and Jessica Armer – former transport manager

Published 16 November 2020

Redacted decision of the Traffic Commissioner for the North West of England.

In the matter of the Goods Vehicles (Licensing of Operators) Act 1995 (‘The Act’).

Public Inquiry held at Golborne on 19 October 2020.

1. Decision

On findings under S.26 (1)(h) of the Act, I make the following directions in respect of this operator’s licence.

The licence is curtailed from 25 vehicles and 20 trailers to 23 vehicles and 20 trailers. This direction will take effect from 00:01 hours on Saturday 31 October 2020 and will last until 23:59 hours on Sunday 8 November 2020.

I direct that the operator will inform the Office of the Traffic Commissioner in writing by Friday 30 October 2020 of the registration number of the vehicles to be removed from operations as a result of the curtailment of its authority to 23 vehicles. The vehicles in question should not be used under any other operator licence during the period the curtailment is in force.

The operator’s application for an increased authority of 27 vehicles is granted with effect from Tuesday 1 December 2020.

There will be an undertaking set down as agreed by the operator as follows:

The operator will arrange for maintenance and drivers’ hours systems, to be audited by an independent third party in April 2021. Audit reports will be prepared, acted upon, and retained for at least 2 years. A copy of the report will be forwarded to the Office of the Traffic Commissioner before 15 May 2021 together with the Operator’s proposals for implementing its recommendations. The audit report should expressly comment on progress against the findings of the DVSA investigation report dated 6 January 2020.

1.1 Jessica Armer – former Transport Manager

Jessica Armer’s repute is tarnished but not lost.

2. Background

JJC Hire Ltd (“the operator”) is the holder of a Standard National Goods Vehicle operator’s licence OC1100129 authorising the use of 25 vehicles and 20 trailers. The licence was issued on 20 April 2011. The operator’s business is concerned with waste transfer and skip hire.

The company currently has a sole director, Michiel Cronje, who was appointed as recently as 1 October 2020. Mr Cronje has also been the operator’s Transport Manager since 1 April 2020.

The sole director of the company when the licence was issued in 2011 [REDACTED]. He remained in post as the sole director until 1 October 2020 when he was replaced by Mr Cronje.

Companies House records the persons with a significant controlling interest in the operator as Anne Armer and John Cooper.

The transport manager for the operator when the licence was issued was [REDACTED] continuously recorded as transport manager on the licence until removed on 19 September 2019.

In 2016, Jessica Armer was added to the licence as a second transport manager. In June 2019, she notified my office of her resignation with effect from 28 June 2019. Ms Armer was then reappointed as transport manager on 19 September 2019 and remained the sole person in that role until she again resigned on 18 February 2020.

At that point, the director [REDACTED] sought a period of grace to appoint a replacement and gave the name [REDACTED] as the prospective candidate. A period of grace was granted until 31 May 2020.

In March 2020 the operator submitted a transport manager application for Mr Cronje and that was confirmed as form 4 April 2020.

The operator has no previous regulatory history.

On 20 August 2019 one of the operator’s vehicles driven by its employee Mark Singleton collided with a railway bridge near Kendal in Cumbria prompting an investigation. The collision was a consequence of one of the skip loader’s arms not being fully retracted to its transport position. The bridge strike came to the Traffic Commissioner’s attention following a notification by Network Rail; the event was not reported by the operator itself.

As a result of that incident, a DVSA Vehicle Examiner conducted a maintenance investigation visit to the operator on 6 January 2020. The findings were assessed as unsatisfactory.

Specifically the items recorded as unsatisfactory included:

• The lack of effective control by Jessica Armer as Transport Manger.
• This was evidence by the failure to report the bridge strike to the Traffic Commissioner
• Shortcomings with the driver defect reporting process including a significant number of examples where defects identified at maintenance inspections had not been identified during daily walk around checks.
• The lack of evidence of continuing professional development for Transport Manager Jessica Armer
• Evidence of multiple failure items at annual test for vehicles and trailers.
• The fleet check on 6 January 2020 resulted in two prohibitions being issued.
• One for an emissions warning light on a vehicle which had not previously been identified in a defect note. The other related to a perished brake pipe on a trailer.
• Shortcomings in security at the operating centre
• A warning light to show the load arms on the skip loader were extended was found to be inoperative in one vehicle. Another vehicle did not have a load height indicator in the cab.

Jessica Armer resigned as transport manger on after the initial DVSA report was sent to the operator.

The operator provided a response to the DVSA report on 17 February 2020. It appears to have been written by [REDACTED]. The response explained the intention that Ms Armer be replaced by [REDACTED].

The response also claimed that the bridge strike was investigated at the time with the conclusion it was driver error. The response asserted that the driver had ignored the warning alarm that would have sounded to warn the arms had not been fully lowered.

The response conceded that there had been a lack of auditing of driver defect reports, describing this as “a failing by the former transport manager”.

The response accepted the other shortcomings identified by the DVSA examiner and sought to provide an assurance that all matters had been addressed.

The operator subsequently wrote to my office in April 2020 in response to a request for further information about the bridge strike.

The response stated there had been no formal recorded investigation at the time of the incidence but that the driver Mark Singleton had been interviewed and dismissed. The assertion that he had ignored the warning alarm was repeated. The failure to report the incident was said to be an oversight “by the then Transport Manager J Armer”. Responsibility for route planning was said to rest with David Armer (whose role was not further explained).

The operator and Jessica Armer as its transport manager at the relevant time were called up to public inquiry to address these matters. [REDACTED] the transport manager at the date of the bridge strike was not called up as the significance of his role was not identified immediately.

The hearing additionally considered the operator’s recent application for a variation of its licence to increase the authority to 27 vehicles. The main purpose was said to be to create a margin on the licence as the current 25 vehicle authority is fully utilised.

3. The hearing

The public inquiry was listed before me at Golborne on 19 October 2019. Michael Cronje appeared and gave evidence on behalf of the operator as its sole director and current Transport Manager. The operator and Mr Cronje were legally represented by Mr Jared Dunbar of Dyne’s solicitors.

Mark Singleton had also been called to a cojoined driver conduct hearing as the driver of the vehicle involved in the bridge strike on 20 August 2019. Having heard his evidence and evidence relevant to the consideration of driver conduct action from Mr Cronje, I suspended Mr Singleton’s vocational driving entitlement for 8 weeks. That decision has been separately recorded.

Jessica Armer wrote to my office on 21 September 2020 indicating that she would not be attending the public inquiry. She explained that since her resignation as transport manager she had taken up a university course. She indicated that she had no intention of working within the transport industry again and understood the implications of not attending. She said she would not contest a disqualification order.

Prior to the hearing, I was served with submissions from Mr Dunbar supported by evidence of financial standing, operator policies (mostly introduced by Mr Cronje over the past 6 months) and recent documents relating to maintenance of vehicles and monitoring of drivers’ hours.

I found financial standing and professional competence were both established as at the date of hearing.

4. Bridge Strike

I heard evidence from the driver Mark Singleton about the bridge strike. I also heard some evidence from Mr Cronje although he conceded that his personal knowledge of the matter was very limited as it pre-dated his involvement with the operator.

I am satisfied that the primary responsibility for the collision with the bridge must rest with Mr Singleton as he failed to check that both load arms had been fully lowered He did not realise that one arm was still extended to the extent it exceeded the height at which the vehicle could safely pass under the bridge. I do not find the operator was directly culpable as there was no failure of route planning; had the loading arms being in their proper position, the bridge could have been safely navigated.

Mr Singleton gave the following evidence which is relevant to consideration of the operator’s position:

• Mr Singleton had worked for the company for some years.
• He said he received his instructions as a driver from David Armer who he understood to be the owner of the business.
• Mr Singleton was aware that Jessica Armer was a transport manager, and he had some contact with her concerning matters such as driver hour infringements.
• When asked about the transport manager [REDACTED], Mr Singleton said he had no knowledge of such a person.
• Mr Singleton said he had not received any training or instruction in terms of avoiding bridge strikes and route planning prior to the incident on 20 August 2019.
• Mr Singleton insisted he had not ignored any warning alarm in the cab. The only warning device he was aware of in relation to the load arms was a warning light. He conceded his view of this during the journey on 20 August 2019 was obscured by paperwork.
• Mr Singleton said after the incident the company sent out a replacement vehicle to the scene which he then drove back to the operating centre. There he spoke to David Armer and was allowed to carry on with his day’s work.
• When Mr Singleton returned to the operating centre at the end of the day, he was spoken to by John Cooper. Mr Cooper told Mr Singleton that the company would have to “let him go” because of the extent of the damage to the vehicle. He was not the subject of any formal disciplinary investigation and did not receive any written explanation for his dismissal.
• Mr Singleton was re-employed by the operator in June or July 2020. Since returning, Mr Singleton said he had daily contact with Mr Cronje and he and the other drivers had been issued with several new policies including information on avoiding bridge strikes. Mr Singleton said that the level of instruction to drivers since Mr Cronje’s appointment was very different to that he had experienced in his previous time with the operator.

Mr Cronje was unable to shed much light on the circumstances of the bridge strike.

Mr Cronje had been unable to find any evidence of a disciplinary process or other form of formal investigation by the operator following the bridge strike. At best he though there had been some form of “verbal debrief” with the driver which had progressed quickly.

Indeed, Mr Cronje on his appointment had not been able to locate any form of disciplinary process for the operator. He had now taken steps to rectify this and I saw evidence of the policy introduced.

Mr Cronje confirmed that an audible warning alarm was not fitted to the operator’s vehicle. It was not within his knowledge how the operator came to initially suggest to the DVSA examiner and the Traffic Commissioner that such an alarm was fitted to the vehicle and had been ignored by the driver.

Nor could Mr Cronje explain why Jessica Armer had been blamed for the oversight in not reporting the matter, when she had not been reappointed as transport manager until a month after the bridge strike.

Mr Cronje detailed the steps he had taken since his appointment on 1 April 2020 to reduce the risks of such collisions in future. He has familiarised himself with the Network Rail guidance and has circulated advice to drivers. He has also installed HGV specific sat nav in the operator’s vehicles. He has identified a member of staff to take responsibility for route planning and has arranged for routes with low bridges or other potential obstacles to be highlighted. I have seen documentary evidence to support the fact that such changes have been implemented.

5. The operator’s management

Mr Cronje explained he had been appointed as transport manager in March 2020 after he responded to a vacancy advertised online by the company. Mr Cronje had no previous connection with the operator.

He was appointed after being interviewed by Anne Armer and John Cooper, the two main shareholders in the company together with [REDACTED] who was the sole director. Mr Cronje was employed on a full time and permanent basis. Mr Cronje confirmed he has no financial interest in the operator and is purely a paid employee.

Mr Cronje explained that David Armer was the husband of the shareholder Anne Armer and he believed he was the owner of the premises used as an operating centre. Mr Cronje confirmed that he did not take instructions from Mr Armer and he was no longer involved in directing drivers.

Asked about previous transport managers, Mr Cronje confirmed he was aware that Jessica Armer had held that position. He believed she was a relative of David and Anne Armer, but she had left the business before he arrived. Mr Cronje did not have any knowledge of [REDACTED].

Mr Cronje was aware of the more recent involvement of [REDACTED] but again he had left the business before Mr Cronje arrived.

Mr Cronje summarised his knowledge of the operator’s activities and personnel before his appointment as “sketchy”. He accepted however that the contents of the DVSA maintenance inspection report were a fair comment of the operator’s position at the time it was conducted based on the situation he himself found on his arrival in post.

Asked about his recent appointment as director, Mr Cronje explained that his predecessor [REDACTED] had decided the time was right to step down as he did not want to appear at the public inquiry. The shareholders had asked Mr Cronje if he would step up as a director and he has agreed to take on that role for around 6 months in addition to his transport manager role.

Mr Cronje described how he felt he had considerable autonomy to manage the operator’s business and licence. However he would still consult with the shareholders on matters such as significant capital expenditure.

Since being appointed, Mr Cronje said he had taken extensive action to address the deficiencies identified by the DVSA examiner and other issues with the operator’s management. He engaged the services of a transport consultant (Peter Russell) and has already agreed a schedule of quarterly audits in the next 12 months to be followed by annual audits over the next 4 to 5 years.

Mr Cronje said he had identified a need for additional capacity in the operator’s in-house maintenance approach and he had employed a second workshop manager.

Mr Cronje has identified a member of staff to act as his assistance in support of the transport manager role. Arrangements have been made for her to attend an operator licensing awareness course and consideration will be given to supporting her to obtain a CPC qualification.

Mr Cronje also explained the work he was doing to oversee the drivers including more intensive management of matters such as their proper completion of driver defect reports. He has also introduced a bonus system for drivers which allows good practice to be recognised but also allows us a mechanism to penalise them for any non-compliance.

Mr Dunbar made some brief but pertinent closing submissions. He rightly highlighted that this was the first time the operator had been called to a public inquiry. He invited me to take account of the recent absence of prohibitions or other adverse issues. The MoT pass rate is well above average spot checks.

It was conceded that there had been issues with the operator’s management previously, but these had been decisively addressed since Mr Cronje’s appointment and will before the public inquiry.

6. Consideration

I do not find the operator to be directly culpable for the bridge strike incident which ultimately has to be ascribed to driver error.

I do question however if the driver had received more training and instruction in relation to safe practices to avoid such collisions if the incident could have been avoided.

My greatest concern about the incident, is the operator’s approach in the aftermath. It is clear there was no real attempt made to fully investigate the circumstances and take any learning from what happened. Nor was a measured approach taken to disciplining the driver.

The failure to draw the incident to the Traffic Commissioner’s attention is unacceptable. Even worse, is the fact that misleading information was given in relation to the existence of an audible warning signal. If this had been accepted as evidence and not corrected by Mr Cronje at the hearing, it could have resulted in injustice to the driver. I am also concerned that the information given initially to suggest disciplinary procedures had been followed and assigning blame for the failure to report to Jessica Armer may also have been misleading.

The operator’s approach to the bridge strike appears to be symptomatic of its wider approach to management of the licence, certainly in the period between June 2019 and March 2020.

The operator’s named sole transport manager between 28 June 2019 and 19 September 2019 (including the date of the bridge strike) was [REDACTED]. I have seen no evidence to suggest he was exercising any form of continuous management and control over the transport operation. The evidence of Mr Singleton supports a finding that [REDACTED] was a transport manager in name only during that period (if not previously). As [REDACTED] was not called to the public inquiry I make no finding about his personal repute.

Ms Armer was the transport manager from 19 September 2019. She has regrettably chosen not to attend the hearing to give her own account. I infer from her comment that she will not contest disqualification that she concedes the shortcomings of her performance as transport manager as evidenced by the DVSA investigation.

Ms Armer’s departure from the business together with [REDACTED] more recent resignation deprived me of the opportunity to hear first-hand evidence from the statutory post holders in place at the time that the deficiencies arose. One interpretation of that might be that it was an attempt to obstruct a proper inquiry into the facts. A more benign interpretation is that those controlling the business realised the weakness of their position on receipt of the DVSA report and moved to bring the transport management and directorship into more competent hands. I will give the operator the benefit of the doubt and accept the latter interpretation.

I found Mr Cronje to be a credible and impressive witness. He is clearly an extremely enthusiastic and committed individual who understands his obligations as a transport manager and director of a holder of an operator’s licence. It is clear that in a relatively short time he has transformed the operator’s approach to compliance with the requirements of the licence. This is supported by the supporting documentation produced in advance of the hearing and the evidence of Mr Singleton in terms of the change of approach he had observed as a driver.

Mr Cronje’s impact since his appointment as transport manager role gives me confidence that I can trust the operator to be compliant in future. For that reason, I do not consider revocation of the licence to be appropriate.

I do have reservations as Mr Cronje is an employed director. Although I am satisfied, he enjoys considerable autonomy, it is clear that some controlling influence remains with the shareholders Anne Armer and John Cooper. I have considered the question of whether they can be regarded as shadow or de facto directors. I do not consider the need to make an adverse finding in relation to their involvement and therefore make no finding in relation to that issue.

I do consider that some regulatory action is required to reflect that the issues which were allowed to arise under previous management were unacceptable and must not be repeated. I hope such action will also underline to those with a controlling interest in the operator, the importance of maintaining stable and effective arrangements for management of the licence. I commend the operator for the appointment of Mr Cronje but couple this with a warning that any future change of director or transport manager would be a highly material change in the circumstances of the operator for which I would wish to see a full explanation.

I have balanced the positives of the operator’s compliance since April 2020 to date, with the negatives of the deficiencies in the months prior to that date evidenced by the bridge strike and the DVSA investigation. I find there was a failure by the operator to ensure that a transport manager was in place exercising effective and continuous management.

I consider that ‘moderate to serious’ regulatory action against the licence is justified, having taken account of the Senior Traffic Commissioner’s Guidance Document No.10 “The Principles of Decision-Making and the Concept of Proportionality”. Curtailment of the licence that limits the size of the fleet that may be operated under the licence is appropriate here. The fleet capable of use at one time will be cut by 2 vehicles to 23 vehicles for a period of 9 days. This direction will take effect from 00:01 hours on Saturday 31 October 2020 and will last until 23:59 hours on Sunday 8 November 2020.

I further direct that the operator will inform the Office of the Traffic Commissioner in writing by Friday 30 October 2020 of the registration number of the vehicles to be removed from operations as a result of the curtailment of its authority to 23 vehicles. The vehicles in question should not be used under any other operator licence during the period the curtailment is in force.

I will grant the operator’s application for an increased authority of 27 vehicles thereafter but direct that this does not come into force until Tuesday 1 December 2020 as a further sanction.

I find that Jessica Armer’s good repute as transport manager is tarnished but not lost. Although I did not hear evidence from her at the hearing, I did take note of her relative inexperienced and the context of the operator as a whole. I do not discount that she was placed in a position where she lacked the support to perform her duties properly. I am also not satisfied that some of the deficiencies ascribed to her were Ms Armer’s responsibility such as the failure to notify the bridge strike which arose when she was not a transport manager. I note that she has no present intention to return to the transport industry and do not consider it necessary to find her repute is lost and consider disqualification. If she were to seek appointment as a transport manager in future, I would expect to scrutinise that application. The same comment applies to the former director [REDACTED] were he to feature in any future application for a licence.

There will be an undertaking set down as agreed by Mr Cronje on behalf of the operator at the hearing and as follows:

The operator will arrange for maintenance and driver hour systems, to be audited by an independent third party in April 2021. Audit reports will be prepared, acted upon, and retained for at least 2 years. A copy of the report will be forwarded to the Office of the Traffic Commissioner before 15 May 2021 together with the Operator’s proposals for implementing its recommendations. The audit report should expressly comment on progress against the findings of the DVSA investigation report dated 6 January 2020.

Gerallt Evans

Traffic Commissioner for the North West of England

23 October 2020