Decision

Decision for Amarjeet Singh Whaid & Partners

Published 17 September 2024

0.1 SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 5 AUGUST 2024

3. OK2041518 AMARJEET SINGH WHAID & PARTNERS T/A GNK BUILDERS

4. Background

The operator Amarjeet Singh Whaid & Partners is the holder of an interim restricted operator’s licence authorising four vehicles. A preliminary hearing took place on the 5 July 2021 following a change in partners which required a new application. The previous licence was surrendered and the new licence issued for an initial period of four months pending receipt of an audit and to allow progress to be made in relation to revised arrangements for the operating centre. The interim licence was issued subject to undertakings to employ a banksman at the existing operating centre, arrange for an independent audit in September 2021 and to provide evidence of improve operating centre facilities. Since the end of this initial interim licenced period extensions have been granted as a result of delays in the planning and financing arrangements in relation to the extended operating centre.
The undertaking for an audit was met in that an RHA audit was carried out in September 2021. Whilst the audit contained several recommendations the operator responded to those recommendations and explained why deficits had been found and promised to ensure remedies were implemented and sustained on an ongoing basis.

On the 28 June 2023 an authorised vehicle was stopped by the Metropolitan police and found to be displaying a licence disc issued in relation to the previous licence that had been surrendered. In addition the load carried was deemed to be insecure, mirrors were poorly adjusted, and analysis of the tachograph records showed that the driver Tarek Chamkhi had failed to take an adequate amount of weekly rest on seven of the previous eight weekly periods.
On the 3 October 2023 a different authorised vehicle driven by Mr Chamkhi was stopped and was also found to be displaying a disc allocated in relation to the previous licence, the load was deemed to be insecure in precisely the same way as the previous occasion, mirrors were poorly adjusted and Mr Chamkhi had failed to take adequate weekly rest between the 23 and 25 September 2023.

Further tachograph records were requested by the police and produced for analysis. These revealed further infringements by Mr Chamkhi and another driver Wesley Robinson including occasions when it appeared tachograph cards had not been used with the aim of disguising the fact that the driver had taken insufficient weekly rest.

On the 16 December 2023 PC Wakeman  and a colleague visited the operating centre and spoke to two of the partners Amarjeet and Shane Whaid together with the transport administrator Narinder Kaur. It was admitted on behalf of the operator that analysis of the drivers’ hours’ data had not been carried out since July 2022 and copies of preventative maintenance inspection sheets and other compliance related documentation were not available. Checks of the company timesheets showed that drivers Robinson and Chamkhi had consistently worked on 6 days per week thereby failing to take the required period of weekly rest.
Following receipt of the police report the Traffic Commissioner requested that a desk based assessment by the DVSA was carried out and this took place on the 1 May 2024. The marking in the assessment was unsatisfactory in relation to maintenance records and inspection arrangements, driver defect reporting, wheel and trye management and load security. The other sections of the assessment were marked as mostly satisfactory.

As a result of the contents of the police report a proposal to revoke the licence was issued and the operator requested a public inquiry in response. The decision to hold a public inquiry was confirmed and driver Tarek Chamkhi was called to a conjoined driver conduct hearing.

5. The Public Inquiry

Partners Amarjeet Singh Whaid and Shane Whaid attended the inquiry together with transport administrator Narinder Kaur. The operator was represented by counsel Mr Davies. Driver Tarek Chamkhi attended and was represented by Ms Evans. PC Wakeham attended to give evidence and assist the inquiry.

I heard the evidence relating to Mr Chamkhi first and read the statement that had been submitted on his behalf prior to the inquiry. In summary Mr Chamkhi admitted the offences and infringements from the 26 June 2023 and 3 October 2023 and additionally accepted other drivers’ hours errors including on four occasions during the relevant period not using his card when working on a Saturday. He said that because he was not sure whether he could drive on a Saturday so he thought it was better not to use a card. Additional infringements were the result of small amounts of driving after using his card or taking rest period breaks from driving in the wrong order.
Mr Chamkhi was asked why he had not changed practice between the stops in June and October and he said that he did not understand what he had been told at the time. He had attended a training course and had changed his practice in relation to his breaks. It was submitted on behalf of the driver that there had been no need for the driver to commit the infringements due to the nature of the work and periods of driving and they had been committed as a result of lack of knowledge.

Amarjeet Whaid submitted a statement and documentation prior to the inquiry and gave evidence in support. He said that the planning and finance issues relating to the new area proposed for the operating centre had been very protracted although it was anticipated they were close to conclusion. It was accepted that vehicles had been used on two days after a period covered by the interim licence had expired.

He said that the failing in relation to the insecure load related to strappings that should have been applied but were not. There were straps available and the offences were committed as a result of a misunderstanding. New instructions have been given and further training is planned.
Until December 2023 Navinder Kaur had been dealing with compliance issues but from that time until recently she had been absent from work as a result of a family member’s illness and subsequent death. As a result of her absence analysis of drivers’ hours had not been taking place and other compliance requirements were missed. Mr Whaid said that at the time he had been very involved in other aspects of the business and in particular the planning and finance issues. Transport Consultants A.S. Miles were now engaged, an audit had been conducted, a compliance file set up and training for drivers and the partners were committed to actioning the recommendations of the audit.

Mr Davies offered undertakings on behalf of the operator including further audits, engagement of transport consultants, audits of drivers’ walk round checks and if necessary the appointment of a CPC qualified transport manager. It was confirmed Ms Kaur did not hold that qualification.

6. Findings and Decision

I find that there have been breaches of Section 26(1) (c) (ca) and (f) of the Goods Vehicles (Licensing of Operators) Act 1995.  In deciding what action to take in relation to the breaches I need to balance the negative factors with the positive. The negative factors are detailed in the preceding paragraphs and what was found is compounded by the length of time the deficits were allowed to continue., the interim licence was allowed to lapse and use without a licence continued for two days and there has been a previous public inquiry an subsequent audit when promises for improvement were made. The positive factors are the actions taken recently to remedy the failings but I note that these are mainly since the decision to call the case to public inquiry was made. My concern is that the level of non compliance would have continued if regulatory intervention had not taken place.  With reference to Statutory Document 10 issued by the Senior Traffic Commissioner I find that this case falls into the category of serious to severe conduct.
Having made those findings I have to decide whether the operator is fit to hold a licence and in this regard I have asked myself the question as set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words - can the operator be trusted going forward? My answer to this question is a tentative yes but I emphasise I have considered whether this is a case where revocation is required. I have decided to allow the licence to continue but find nevertheless that a significant sanction is required plus the undertakings detailed below. The fact that I have determined the case in this way should send a message to the operator that improvements must be made and maintained when the “heat of the public inquiry” has died down.

In deciding what regulatory action is proportionate I have considered the seriousness of the case as well as the table submitted by the operator setting out the financial implications of regulatory action. My decision as a consequence is to curtail the licence to two vehicles for 28 days with effect from 00.01 hours on the 2 September 2024. Which of the authorised vehicles is to be removed from use for the period should be notified to the Office of the Traffic Commissioner within 7 days of receipt of this decision.
In addition I seek the undertakings set out below. This includes a requirement to employ a CPC qualified transport manager. Whilst I accept  Ms Kaur is keen to improve compliance I believe the involvement of a qualified person as an additional support will be more likely to maintain the compliance levels required.

The undertakings are therefore:

• To arrange an independent audit to be carried out by the RHA, Logistics UK or other suitable independent body, in February 2025. The audit will assess the systems for complying with maintenance and drivers hours requirements, and the effectiveness with which those systems are implemented The audit should cover at least the applicable elements in the attached annex. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be sent to the office of the Traffic Commissioner , Ivy House, 3 Ivy Terrace, Eastbourne, East Sussex, BN21 4QT within 14 days of the date the operator receives it from the auditor.

• To engage the services of a transport consultant for a minimum period of nine months.

• To employ a CPC qualified transport manager for a minimum of four hours per week within two months of the date of this decision and notify the Office of the Traffic Commissioner of the details of the appointee within 7 days of doing so.

My understanding is that the planning permission and advertisement for the proposed new operating centre is still not finalised and I therefore extend the interim licence for a further three months or until the operating centre is issued is resolved. If this has not happened by the end of the interim period an extension of interim must be sought.

  
John Baker

Deputy Traffic Commissioner                       

19 August 2024