Decision

Confirmation of decision for Bullet Express Limited (OM1059347), S&B Removals Limited (OM1056138) Microcycle Limited (OM0035239) and Andrea Gardner, Transport Manager

Published 8 October 2020

Written confirmation of oral decision given on 3 February 2020 by the Traffic Commissioner for Scotland.

1. Decisions

In the matter of Bullet Express Limited:

(i) adverse findings are made in terms of 26(1)(c)(iii) and 26(1)(f) of the Goods Vehicles (Licensing of Operators) Act 1995. The operator is issued with a warning in relation to future compliance; and

(ii) the application to vary the existing licence is granted subject to an undertaking to add an additional transport manager, who meets the requirement set out in section 13A(3) of the Goods Vehicles (Licensing of Operators) Act 1995, to the licence by 1 March 2020.

In the matter of S&B Removals Limited:

1. adverse findings are made in terms of 26(1)(c)(iii), 26(1)(ca) and 26(1)(f) of the Goods Vehicles (Licensing of Operators) Act 1995. The operator is issued with a warning in relation to future compliance; and

2. the application to appoint Mr Paul Pidgeon as transport manager is granted.

In the matter of Microcycle Limited:

1. adverse findings are made in terms of 26(1)(c)(iii), 26(1)(ca) and 26(1)(f) of the Goods Vehicles (Licensing of Operators) Act 1995.

2. the application to surrender licence OM0035239 is granted.

In the matter of Andrea Gardner, transport manager:

1. transport manager, Andrea Gardner, no longer satisfies the requirements of Section 13A(3) to be of good repute in accordance with Schedule 3 of the Goods Vehicle (Licensing of Operators) Act 1995 and is unfit to manage the transport activities of an undertaking; and

2. Andrea Gardner is disqualified for a period of two years from engaging in the role of transport manager in any Member State with effect from 23:45hrs on 3 February 2020.

2. Reasons

A report by Mr Paul Dunkerly, traffic examiner, was received by my office. The report alleged that transport manger, Andrea Gardner, had acted inappropriately in the course of an investigation which was being carried out by DVSA. The investigation had, in turn, given rise to concerns about the activities of Ms Gardner in her roles with all of the companies called to inquiry.

Additional matters explored at inquiry in relation to Bullet Express Limited were the higher than average prohibition rate in relation to the trailers they operated and the frequency of driving without card infringements noted in respect of their drivers.

I heard evidence from Mr Smith, director of, and transport manager for, Bullet Express Limited. I accepted his evidence that matters of concern arose as a result of isolated incidents. The company had taken appropriate and swift action to rectify them. Whilst adverse findings are therefore made out, I did not consider there to be any need, on balance, to take regulatory action against the Bullet Express Limited licence. A warning is issued in relation to future compliance.

I had regard to the evidence given by Mr Smith in relation to Ms Gardner’s role within the Bullet Express Limited business. She was not the named transport manager, but she did have a significant role in the business’ transport operation. Her responsibilities were delegated to her by Mr Smith. I accepted Mr Smith’s evidence that he was unaware of Ms Gardner’s external transport manager duties, or of her actions in relation to those other roles.

I was satisfied that Mr Smith was exercising the continuous and effective management of the Bullet Express Limited transport operation. However, I was not entirely convinced that the transport manager role, and the responsibility for transport related tasks, were as clearly defined within the business as they should be.

Whilst there is obviously scope, particularly in a large organisation, for delegation of transport manager duties the responsibilities and reporting lines must be clearly set out for all to see and understand. I noted, and accepted, Mr Smith’s evidence that the ‘buck stopped with him’ but I asked the company to give some thought to ensuring that roles and responsibilities were clearly defined. I was assured to hear in submissions made by Mr Kelly on behalf of the company that work on better defining those roles was already underway.

Standing all of the foregoing, I was prepared to grant Bullet Express Limited’s variation application as sought on the undertaking that an additional transport manager be nominated on the licence by 1 March 2020.

In relation to S&B Removals Limited, I heard from Mr Bowers, director of the company. I noted the evidence, which was not disputed, regarding prohibitions and fixed penalties issues which had been issued. Formal adverse findings were therefore made out.

However, Mr Bowers’ evidence was that swift and effective action had been taken to resolve the issues. I also noted his evidence that that Ms Gardner as TM had played a significant part in the improvements that had taken place. Overall, I was satisfied by Mr Bowers’ assurances that the company were operating compliantly. I did not, therefore, consider there to be any need to take regulatory action against S&B Removals’ operator licence. A warning is issued in relation to future compliance.

In respect of Ms Gardner’s involvement with the company, I accepted Mr Bower’s evidence that he was unaware of the breadth of Ms Gardner’s additional duties. He was also unaware of her actions in applying for the additional TM roles over the years. However, one passage of his evidence gave me some cause for concern. With reference to the hours worked by Miss Gardner as TM at the outset of their relationship, Mr Bowers appeared to seek to justify the misleading information Ms Gardner had provided on one of her TM1 forms by way of refence to an agreement they had reached for her to be physically based in his office. He also conceded that he had discussed his evidence with Ms Gardner in advance of the inquiry.

That evidence could have indicated that there had been collusion between Mr Bowers and Ms Gardner in an attempt to mislead the inquiry. However, under questioning from me, Mr Bowers did admit that the hours Ms Gardner has specified on her TM1 form in relation to S&B Removals were not the hours she was required to engage in transport manger work for his company. I also noted the high regard in which he had held Ms Gardner’s abilities as a transport manager. With that in mind, I was prepared to give Mr Bowers the benefit of the doubt and interpret his evidence as an attempt to support Ms Gardner in light of her abilities as transport manager, rather than as an attempt to mislead the inquiry.

I noted that Ms Gardner had, in the period since the case first called, been removed as transport manager from S&B Removals’ licence. I accepted Mr Gray’s submission that Mr Paul Pidgeon should be appointed as transport manager and granted the application to appoint him as sought.

I had been advised in advance of the inquiry that representatives of Microcycle Limited would not attend. They no longer required an operator’s licence and had made an application to surrender their licence on that basis. After consideration of the evidence before me in relation to the company I was prepared to accept their application for surrender of their licence, albeit adverse findings were made out.

Ms Gardner admitted that she had provided misleading information to my office regarding her employment and the hours she worked as a transport manager. She had submitted TM1 forms on at least 5 occasions between April 2012 and January 2018 which did not include details of her employment with Bullet Express Limited. The forms also generally exaggerated the hours she intended to work, or was working, as an external transport manager for the various companies which had hired her.

Ms Gardner admitted that she had deliberately submitted misleading information on the TM1 forms and that she had misled Mr Dunkerly in the course of his investigation. She feared that if she had been truthful on the TM1 forms she would not have been appointed as transport manager given the extent of her other duties. When Mr Dunkerly had requested her attendance during his investigation into Microcycle Limited, Ms Gardner had told him that she was out of the country and unable to attend to assist on account of a relative’s illness, when she was in fact working in her full time position for Bullet Express Limited. It became clear during the inquiry that Ms Gardner had hidden the extent of her duties from Bullet Express Limited, her principal employer, and from all the operators for whom she had worked as an external transport manager.

I also noted that Ms Gardner’s actions were not isolated events. The submission of misleading and inaccurate information to my office amounted a course of conduct which took place over several years. Similarly, the exchange of correspondence between Ms Gardner and Mr Dunkerley relating to his investigation took place over several days, during which Ms Gardner repeated the false reasons she had given for her inability to attend.

Submitting false information on official licensing documentation and obstructing an examiner in the course of an investigation are extremely serious matters. I found the repeated and deliberate nature of the deception in this case particularly concerning. Such behavior fundamentally undermines the trust which necessarily lies at the heart of the licensing regime.

I gave careful consideration to the submissions made by Mr Docherty on Ms Gardner’s behalf. He referred me to the many positives in this case, including Ms Gardner’s enthusiasm for, and competence in undertaking, her role as transport manager. She had made a significant contribution to the transport industry and was an advocate for equality therein. At least in part, she had behaved how she had because she loved her work and she had not fully appreciated the import of her actions. Ms Gardner had freely admitted what she had done and regretted her actions deeply. Mr Docherty’s submission was that it was open to me to find Mr Gardner’s repute tarnished but not lost.

However, notwithstanding the many positives, I had found that Ms Gardner had repeatedly submitted false information to my office. She had lied because she was afraid she would not have been appointed as transport manager had she been honest. She also lied to Mr Dunkerly in the course of his investigation. She saw fit to deceive not only my office, but also those compliant operators who had put their trust in her. I did not accept that an experienced and competent transport manager could fail to understand the significance of such actions.

I was reminded of the words of the Upper Tribunal in 2018/048 BKG Transport Ltd, Whiteparish Transport Ltd, Terry Gover, Tony Gover:

It is difficult to envisage any circumstances in which the good repute of company directors and transport managers will be retained once it is accepted that lies have been told to the TC (or indeed to DVSA enforcement officers).

Having balanced all of the evidence, I concluded that it was proportionate to find that Ms Gardner had lost her repute as a transport manager. That being the case I was obliged, by virtue of paragraph 16(2) of Schedule 3 of the 1995 Act, to disqualify her from acting as such.

Mr Docherty submitted that the positives in this case allowed me to conclude that the period of disqualification imposed should fall at the lower end of the scale. The nature of the adverse findings, and the resulting loss of trust, would normally have led me to conclude that a lengthy period of disqualification was appropriate. However, I agreed with Mr Docherty and concluded, having regard to the positives, that a period of two years disqualification was proportionate in all the circumstances. I consider the opportunity to reflect afforded to Ms Gardner during the period of disqualification will be sufficient in terms of a rehabilitation measure.

Repute is not automatically restored at the end of period of disqualification. If Ms Gardner wishes to resume her career as a transport manager in the future she will be required to appear again before me and convince me that she is fit to be trusted as such again.

Ms Claire Marie Gilmore

Traffic Commissioner for Scotland

14 February 2020