Decision

Decision for Alexa&G&M Ltd, OB2042010 & Colin Dawson, Transport Manager

Published 17 April 2023

0.1 In the North Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Alexa&G&M Ltd, OB2042010 & Colin Dawson, Transport Manager

2. Background:

Alexa&G&M Ltd has been the holder of a Standard International Goods Vehicle Operator’s licence for 1 vehicle and 1 trailer since 30 April 2021. An application had been made to downgrade the licence to Standard National after the issue of these proceedings: the application was considered and granted under delegation, notwithstanding the impending Public Inquiry.

The director, Gabriel Alexa is an owner/driver, engaged on work for a single, large scale business, although not under a specific contract with them.

Until his resignation on 28 July 2022, Colin Dawson had acted as Transport Manager (TM) from the outset of the licence. A period of grace (POG) to operate without a TM in post was in force at the date of the hearing.

On 3 November 2022, Gabriel Alexa had nominated himself as TM on the licence. He had qualified only recently following an examination in October 2022.

I was not referred to any prior regulatory history for the operator (other than the matters raised here).

3. Matters leading to this Public Inquiry:

The trigger for a DVSA follow-up maintenance inspection was the issue of an immediate ‘S’ marked prohibition to the operator’s trailer, during an MOT test on 5 November 2021. The parking brake on one of the wheels was inoperative, no brake effort was recorded. The examiner concluded that the defect ought to have been identified before presentation for test. The nature of this and the number of other defects detailed on the MOT failure assessment notice were said to point to significant failures in the management of the maintenance system.

Some 6 months’ later, on 5 May 2022, Vehicle Examiner (VE) James Jackson visited the operator: he recorded ‘unsatisfactory’ findings and reported the concerns to the Office of the Traffic Commissioner. Of the 12 assessment areas under consideration, 8 provided cause for concern. The overall adverse assessment of the TM also required reporting to the Traffic Commissioner.

The defect leading to the delayed prohibition during the VE’s investigation related to an ABS warning light, indicating a braking system fault on the same trailer as had previously been encountered. That warning light had been noted by the contractor during the preceding preventive maintenance check on 7 April 2022, it had been recorded that a new valve was necessary. While the matter had been “reported” to the operator, there was no evidence that the fault had been rectified, over a month later. The VE had been told that the part was very expensive at about £1000, and it appeared that financial reasons had militated against its repair being carried out. I was told in the hearing it had since been decided the trailer was to be sold for spares, rather than be fixed.

The VE concluded that the trailer had continued to be used on the road between 7 April 2022 and 5 May 2022.

DVSA’s wider concerns contained in the MIVR, related to an absence of regular, laden brake checks, poor record-keeping, stretching of maintenance frequencies on two occasions, lack of an effective forward plan or VOR system, inconsistent driver defect reporting arrangements, and the absence of recorded wheel and load security protocols. The VE was concerned (as had been the TM) that there appeared to be no pre-MOT preparation of the vehicle or trailer before its test.

The VE also concluded because of the “numerous shortcomings found” that Colin Dawson as TM did not demonstrate continuous and effective control of the licence.

The operator’s response on 22 May 2022 to the VE had offered assurances that the matters raised would be addressed. Whilst he had produced a folder of current records that traversed the period during which TM Dawson had left the business, the evidence of change was more limited. Brake testing was inconsistent, not always laden and driving infringements were still seen. A signed service agreement with the new contractor was however provided, load restraining literature was said to have been read, and monthly audits were proposed to be carried out (although none were before me).

VE Jackson had been unimpressed by the written response, referring to a lack of detail regarding brake testing, as well as concern that the ABS warning light would have been constantly lit indicating a fault. The VE had referred to a noticeable lack of interaction between the two when he met them and a concern that the preventive maintenance inspector did not carry out rectification work and that it was probably carried out elsewhere.

In order to obtain a full picture of compliance, on receipt of the maintenance investigation, the Traffic Commissioner directed that a Desk Based Assessment (DBA) by DVSA be conducted in respect of traffic management matters. Whilst this was begun in late July 2022, the process was never completed because of failures to provide full responses to the questionnaires. The requirement to provide information for the DBA coincided with the TM’s resignation.

4. The hearing

Both the director, Gabriel Alexa and the former TM, Colin Dawson were present. With my agreement, both were assisted through the services of transport consultants, respectively Marc Riley and Brian Ellis, alongside them. Whilst the relationship between TM Colin Dawson and the operator had broken down, both parties were entirely civil during the conjoined hearing.

Gabriel Alexa told me that:

• He accepted he had been ill-prepared for the change from being a driver for another employer to being a licence holder himself in April 2021.

• He accepted he was at fault for the circumstances of the “S” marked prohibition during an MOT. He had taken the trailer to his contractor for repair but had not been there at the time of the test, nor had he checked that it had been brake-tested before its presentation. He described it as “bad luck” that the brake problem on the trailer arose again when the VE visited later. He denied using the trailer after the fault had been identified, although I saw no off-road record for it, or any other evidence of the use of a replacement trailer at that time, or after the trailer received its second prohibition.

• He acknowledged that he had not told his TM about either the MOT failure, or the “S” marked prohibition, at the time that happened.

• The main feature of his oral evidence was a claimed lack of knowledge of what was expected of him as a licence holder, which he blamed to some extent on his former TM.

For example:

i. He told me had not appreciated that an MOT failure where an “S” marked prohibition was issued would be of a nature that it needed to be reported to his TM. He said he simply had the defect fixed.

ii. He had no recall of the vehicle maintenance being extended to 11 weeks at the end of 2021/start of 2022. He accepted though he had no forward plan and that on the occasions when he had met with his TM there was never any discussion about vehicle checks due. He believed there were times when he might have been on holiday but there was no VOR system in place as would show the dates.

iii. He admitted that he had not appreciated that walk round checks needed to be recorded each day.

• He did however concede that he had listened to the advice of Mr Riley, who, as his new adviser, he was using to put in place systems and practices for the future, to meet driver defect reporting requirements. He reiterated that he had not realised the relative of seriousness of some failings, the need to show an audit trail of checks but believed he had thought he knew what he was doing but acknowledged this turned out to be wrong. He said he had learned a lot from Marc Riley.

• Mr Alexa had successfully completed the TM CPC examination in Romania in October 2022. He told me that it was more convenient to take the exam there, which could be sat in any month, in his first language, albeit that he had resided in Great Britain for a number of years, working as a driver for other operators since 2016. It was pointed out to him that the relevant regulation required examinations undertaken in the country in which either the applicant usually resided or worked, and that this apparent breach would be likely to prevent approval of his appointment as TM. [It was at this point that Marc Riley, who appreciated the nature of the issue raised, had indicated he was prepared to take on the role. He saw his appointment as a short-term arrangement for 6 to 12 months.]

• Mr Alexa, having received VE Jackson’s findings, told me he had lost confidence in his TM. He accepted that he had not paid him for the month of June 2022. The formal position where his TM appeared to remain in the role nevertheless continued until the end of July 2022.

Colin Dawson told me that:

• He was the long-term TM on one other operator’s licence that of T & G Light Haulage Ltd (OB2017403) a Green/Green operator on OCRS. He obtained his qualification in 2017 and had completed continual professional development (CPD) hours the week before the hearing.

• He complained that he was entirely “unprepared” for the VE’s visit (in May 2022) having been told nothing of either the MOT failure, or the issue of the ‘S’ marked prohibition and was wrongfooted when the trailer was again inspected, and the braking system failure was revealed. He said he previously made it clear that any stop by DVSA, or any issue with vehicles and trailers be referred to him. Pressed by me, he conceded that there might have been other routes by which he could have become aware of the adverse events, for example by accessing OCRS for his client.

• He reported that when he was concerned that Gabriel Alexa was not recording his walk around checks in the usual defect book, he had instituted the use of an App instead to evidence this, but this had not worked, the system was withdrawn. He claimed Mr Gabriel questioned the need to record matters in respect of a vehicle he knew well.

• He said he had spoken to the maintenance contractor who had disclosed that the garage were unaware that the trailer was to be presented for MOT and would never have sent such a vehicle for MOT without pre-inspection if they had known.

• He reported that despite providing information for him, Gabriel Alexa did not understand the contribution of prohibitions and MOT failures to the OCRS system.

• He claimed that after the VE’s visit in May 2022, he had taken additional steps to ensure that the trailer was not used before it’s repaired - because he feared it would be. He had checked whether it had moved.

• Asked about actual contact with his client, he said this was “hit and miss - fortnightly”, most interaction being verbal but some by email. Driver infringements were brought to his attention. He accepted it was his mistake in not keeping a forward plan for the operator including Preventative Maintenance Inspection (PMI) and other key dates e.g., the MOT, and not having access to the OCRS system for the operator.

• His resignation letter pointed to Gabriel Alexa not “understanding the consequences of his actions” and “ignoring my way of working and all the advice I could and would have given you.” He therefore explained he felt he “did not have effective control” as the reason for his resignation.

• He accepted that in the light of his evidence, he could see why I might take the view that he had resigned “too late”, he admitted he had “held on too long”.

• Asked about why he had not resigned his position for the operator once he concluded that Gabriel Alexa was not doing what he ought to have done, he told me that he had hoped to be able to “turn him around” in making him compliant. When I asked what evidence of success had been achieved, he replied “None”.

• He described Brian Ellis as someone he had only worked with for only a short period but that he now saw him as a mentor. I was told by Mr Ellis that he had visited T & G Light Haulage Ltd the day before and that he assessed systems there to have only minor issues, and that this reflected well on Mr Dawson.

Just before hearing closing representations, the hearing took a somewhat surprising turn. An 8-page handwritten representation was placed before me by Colin Dawson. It purported to be a version of a semi-contemporaneous note of contacts between him and TM, and Gabriel Alexa. I paused the hearing in order to provide all parties with a copy (on which they could comment) and to read the document for myself. One paragraph related to the original “S” marked prohibition, about which Mr Dawson had maintained he was unaware until attending the visit with VE Jackson 6 months’ later. It however included an allegation that “[..] Mr Alexa carried on using the trailer without repair and I was unaware this had happened”. I had asked Mr Dawson to clarify for me how he could have known that this had been the case when he knew nothing of either the MOT taking place, or the prohibition being issued. Pressed in those circumstances to explain such a serious allegation, he struggled to explain the position beyond an assertion that he assumed this was the case.

5. Findings and consideration

I made the following findings on the balance of probabilities.

The brief before me included separate and sometimes conflicting written responses of the director and the TM. They appeared to reflect a significantly dysfunctional relationship existing between the two of them. A rift in approach was evident in the text of both Colin Dawson’s undated resignation letter (clarified as prepared at the same time as the email in the brief dated 28 July 2022) and the 8-pages of handwritten representations that TM Dawson provided at the outset of his evidence at the Public Inquiry. Communication between them was very poor and I concluded that the lack of actual contact between them (on a less than fortnightly basis) was at the heart of their difficulties. I find it impossible to believe that Mr Alexa did not appreciate that the events at the failed MOT could be kept from the TM. This was a very serious failing.

There was a serious allegation made by the VE about continuing use of the trailer between April and May 2022. Whilst I was satisfied on balance that the TM had taken steps to prevent use after the VE’s visit in May 2022, I did find it was more likely than not that there was use between April and May, as found by the VE. No evidence beyond mere assertion was put forward by Mr Alexa that he had used another trailer during that period.

For completeness, I make no finding that the trailer was used unlawfully after the issue of the “S” marked prohibition in November 2021. I conclude that the written representation of TM Dawson is not what it purports to be, a submission based on notes made at the time, but more likely a self-serving and “embroidered” version based on what he has subsequently read in the brief. Such an act, whether deliberate or simply negligent is ill-becoming of a TM.

There have been clear and undisputed failures to comply with the undertakings attached to the licence regarding deployment of fit and serviceable vehicles and trailers, record keeping, driver defect reporting and management of drivers’ hours compliance. Whilst I reject the contention that of Mr Alexa that his responsibility was somehow reduced because of his ignorance of the expectations of him, these were aspects of the operation that ought to have been picked up by the TM, and which could and should have led to his resignation from the role at a much earlier juncture.

The submission of a patently unfit trailer for MOT was a serious failure. The continued use of that trailer for a month after it again became unfit will have created a clear and unacceptable risk to road safety.

Whilst it will have been more difficult for the operator to pull together the necessary information for the DBA requested in July 2022, when the TM was leaving/had left the business, it was a simply unacceptable state of affairs for DVSA to be required to inform the Traffic Commissioner that they were unable to complete the assessment because of a lack of co-operation on the part of the operator.

Paperwork produced by the operator for the hearing clearly reflected the recent involvement of Marc Riley. It was evident that his involvement had had some positive impact on Mr Alexa and that there had been some discussion between them about what might happen at the hearing and the implications for the operator’s licence. I refer in a separate note below why I conclude that the appointment of Gabriel Alexa cannot be approved. Of course, it was only during the hearing that Mr Riley offered to stand as TM, there is no formal application.

I do not find the argument that the licence be permitted to continue with Marc Riley as a short-term, “last minute” TM an attractive one against his poor background of compliance. For the record I should state that I have no particular concern whatsoever about Mr Riley, more a serious concern about the extent to which Mr Alexa would respond to his prompting over time, in the light of the experience alongside TM Dawson. I reach this conclusion despite the fact that Mr Alexa will be very likely to have gained from the process of studying for and passing the TM CPC qualification, albeit I find him to be excluded from appointment as TM in this jurisdiction. I was alarmed that despite this study that his argument throughout the hearing remained that as an operator with the ultimate responsibility for licence compliance could offer personal ignorance for failings as some form of excuse.

In considering questions of good repute, I have had reference to the Senior Traffic Commissioner’s Statutory Document No. 10.

I considered the non-exhaustive list of factors in Annex D and found the following:

Positive features:

• No previous offending history.
• Some changes made, but with limited tangible evidence in support.
• Above average first-time pass rate at MOT.

Negative features:

• Reckless acts by the operator/driver that led to undue risk to road safety.
• Ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings.
• Insufficient changes made to ensure future compliance.
• Operator failed to co-operate with enforcement investigation, such as failure to produce maintenance records or driver records.
• Road safety critical defects on any vehicle or trailer in service or any “S” marked prohibition or prohibitions issued at MOT.

I conclude that a starting point of ‘severe’ regulatory action is appropriate in this case action, which would inevitably prevent continuation of the operator’s business, and be likely to require Mr Alexa to fall back on a career driving for another operator.

I find that the negatives referred to far outweigh any positives that may be offered up. When I ask myself the so-called “Priority Freight” question, I conclude I cannot be satisfied that this operator will be compliant in the future, even with consultancy/TM assistance of Mr Riley. This is a licence which is tainted by the failures I have set out in paragraphs 20 to 27 above.

So much so that when I ask myself the “Bryan Haulage question”: Is the conduct of this operator such that it ought to be put out of the business? I conclude that it is appropriate and proportionate to answer that question in the affirmative, given the findings made in the balancing exercise undertaken. The undertakings have been breached. Action falling short of revocation, for example by suspension of the operator’s licence, whilst steps are taken to address shortcomings, cannot be justified, the risk is simply too great. The regulatory system is undermined if undertakings that are willingly entered into are ignored.

I have already factored in that this is this operator’s first regulatory Inquiry. The operator was however given notice that disqualification might be considered in the event of licence revocation. Failures in judgement and understanding of the regime have been central to this case and a period of reflection outside any active role in it is appropriate. Others in the industry need to know that there are consequences where an operator breaches undertakings entered into on the grant of a licence. I have reminded myself of the Senior Traffic Commissioner’s Guidance which refers to a starting point for an operator’s first Public Inquiry of the consideration of a disqualification period of between 1 and 3 years. I am prepared to fix the period of disqualification at 12 months. It might be that if Mr Alexa were to study for and pass the TM CPC examination as a resident here that there might be a level of confidence that might feasibly permit him to seek to persuade a commissioner to allow the disqualification to be varied to a short period.

The business is presently operating vehicles and it is appropriate, on balance, that there be a period during which an orderly closedown of business can take place. This is however an operation which must come to an end, so I limit the period before the revocation takes effect to a period of about 7 weeks, a period ending on Friday 10 February 2023 at 23.45 hours. I find good repute to have been lost and since there is no acceptable TM in post that the licence is presently without professional competence.

As to TM Colin Dawson, I conclude there have been a series of basic failures in his role for this licence holder. The external nature of his responsibilities and a naïve trust placed in Gabriel Alexa led to the predicament he has found himself in. Whilst his eventual resignation was a creditable step, it manifestly came too late. By all accounts however, his tenure for another operator has not carried with it the failings demonstrated here. I detected there has been some considerable learning from his presentation at this hearing. There was a readiness to hold his hands up to what had gone wrong. Whilst I conclude that a finding that his good repute has been lost could be justified, especially in the light of the misleading contents of the written representations made, on balance, and by necessarily narrow margins, I conclude that it would be disproportionate to find his repute to have been lost. Instead, I record his repute to be severely tarnished and formally warn him as to his future conduct.

As the nomination of Gabriel Alexa as TM, the relevant circumstances are as follows:

• Gabriel Alexa is a Romanian national;

• He came to live in Great Britain some years ago, he has been a HGV driver here since 2016 and incorporated his company on 22 March 2018. He has LGV driving entitlement. The Companies’ House record for Alexa&G&M Ltd described the business as - Freight transport by road;

• In 2022, when in Romania, he obtained through the relevant authorities there, the TM CPC qualification by passing the examination. The Romanian certificate is in compliance with EC Regulation No. 1071/2009 – the qualification necessary for appointment as a Transport Manager.

• Asked why he had returned to Romania to take the examination when he was a Great Britain resident, understandably perhaps, he said that he did so as his first language is Romanian, not English and that the test is more readily available for applicants there than here;

• It was not disputed that he lives in Great Britain and operates his haulage business here.

The relevant law states that for a qualification to be valid for the purposes of appointment as a TM here that the examination is taken in the country where the student is normally resident, or where he/she works. It seems likely that this provision is in place to ensure that the examination will reflect local circumstances and therefore that most of those persons who pass it will have demonstrated practical competence for the actual environment in which they will work.

It follows that here the applicant has failed to satisfy me that a suitable TM, who satisfies the necessary requirements of Paragraph 2 of Article 8 of Regulation (EC) No. 1071/2009 is met. In particular, Article 8 (2) thereof. Therefore, I refuse the application.

Simon Evans

Deputy Traffic Commissioner

for the North East of England

22 December 2022.