Decision

Decision for Bud Rescue & Recovery Ltd

Published 11 June 2024

0.1 EAST OF ENGLAND TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HELD IN CAMBRIDGE ON 25 APRIL 2024

3. OPERATOR: BUD RESCUE & RECOVERY LTD LICENCE OF1137046

4. Background

Bud Rescue & Recovery Ltd holds a standard national goods vehicle operator’s licence (OF1137046) for 15 vehicles. The sole director of the company is Heeru Malkani. The nominated transport manager on the licence from May 2022 until January 2023 was James Winslow. The current transport manager on the licence, since 19 January 2023, is Alexandra Anghilache.

4.1 2021 Public inquiry

The company was called to a public inquiry on 12 July 2021 as a result of adverse DVSA reports. The company’s repute was marked by Deputy Traffic Commissioner Dorrington as “tarnished but not lost” as was the repute of the then transport manager Raymond Gambling. The company’s operator licence was suspended for seven days and the company gave an undertaking that it would henceforth use only employed drivers and that no self-employed drivers would drive any of the operator’s vehicles, with the exception of genuine agency drivers. The DTC noted that DVSA intended to look again at the operator some time over the next 18 months and that if their report was unsatisfactory the company would be called straight back to public inquiry.

5. Follow-up investigation

In 2023 DVSA traffic examiner Karol Lukaszuk carried out a follow-up investigation. He found:

• numerous instances where drivers were failing to use their tachograph card to record their driving or to record other work when driving out of scope of EU rules;

• the result was that drivers were committing serious drivers’ hours infringements, most notably failing to take the minimum amounts of daily and weekly rest;

• the nominated transport manager until January 2023, James Winslow, lived in Poole 120 miles away, had rarely attended the operator’s premises, and had been a transport manager in name only. None of the drivers interviewed had heard of him or knew who he was;

• when interviewed, Mr Winslow accepted that he had little or no control of the licence and would only advise the company if any issues were raised. He was not aware of the system used to analyse drivers’ hours or of the significant non-compliance found;

• two regular drivers were “self-employed”;

• the director Mr Malkani stated that he was wholly unaware of these issues until DVSA drew them to his attention.

6. Public inquiry

In the light of the above report, it was decided to recall the company to a public inquiry, along with previous transport manager James Winslow and current transport manager Alexandra Anghilache. Call-up letters were sent on 13 March 2024.

The public inquiry took place in Cambridge on 25 April 2024. Present were director Heeru Malkani and the two transport managers as above. The company and current transport manager were represented by Carolyn Evans of CE Law. DVSA traffic enforcement manager Michael Cheeseman also attended.

For the operator, Ms Evans accepted that the company’s traffic office had wrongly told drivers that they did not need to use a tachograph card if carrying out “out of scope”  vehicle recovery work. Drivers should of course have recorded such journeys as “other work”, instead of which they had made manual entries showing “rest” when in fact they had been driving. This had created a distorted and inaccurate picture of drivers’ daily and weekly rest. It was also accepted that the traffic office had wrongly offered drivers work on their weekly rest days: one driver had worked for eight days straight. The company had not realised it was doing anything wrong.

The current transport manager Alexandra Anghilache had inherited this flawed system when she took up her TM role in January 2023 and had not realised the true situation until DVSA came in a couple of months later. Remote downloaders had now been installed on all vehicles and drivers were recording out of scope work correctly. A recent update report from TEM Cheeseman confirmed that, apart from a few isolated infringements, drivers’ hours were now being much better managed. 

The use of two self-employed drivers had occurred because the drivers in question, after having been paid for some months on a PAYE basis (like all other drivers) had then taken it upon themselves to invoice for their services. The Accounts Department had not been aware of the undertaking not to use self-employed drivers and had paid the invoices.

Ms Evans accepted that the case fell into the “severe to serious” category. But the fact that the non-compliance had been inadvertent and had now been addressed made the operator a suitable case for regulatory action which fell short of revocation. A suspension of up to 14 days could be managed, although the financial pressure and effect on the company’s reputation (it carried out vehicle recovery work for the Police) would be severe.

I asked Heeru Malkani why he had allowed a situation to persist in which James Winslow was a transport manager in name only. He said that he had taken on Alexandra Anghilache in July 2022 to look after compliance. She was experienced in the field although did not at that time possess a transport manager CPC. She had qualified as a transport manager at the end of October 2022. [I noted that the application to nominate her as transport manager had only been made on 3 January 2023].

The former transport manager James Winslow said that he had originally been asked by a friend to be on the licence for a limited six week period, while a more permanent transport manager was sought. He accepted that he had not asked for access to the operator’s systems or records and had not reviewed them. He had not had a contract with the operator, despite having signed the TM1 form to say that he did have a contract. He had not been paid for his services, other than for travel costs for the one or two occasions he had visited the operator. He had been unaware of the drivers’ hours issues raised in the DVSA report. He accepted that he had not, at the end of the six weeks, taken himself off the licence or taken any steps to find out the true situation. He stated that he was a much more hands-on transport manager at A1 Budget Skips Ltd, on which licence he was also nominated.

7. Findings

After considering all the evidence, I make the following findings:

the company has failed to fulfil its undertakings (Section 26(1)(f) of the 1995 Act refers) –

• to ensure that rules relating to drivers’ hours and tachographs are observed;

• to employ drivers only on a PAYE basis and not to use self-employed drivers. Two drivers invoiced the company as “self-employed” and were paid on this basis;

• there was a material change in the licence (Section 26(1)(h) refers) in that the company lacked professional competence from May 2022 until January 2023 when Ms Anghilache was nominated as transport manager. The nominal transport manager, James Winslow, was a transport manager in name only, and the company director Heeru Malkani must have been aware of the fact that Mr Winslow was neither present nor being paid.

former transport manager James Winslow is not of good repute (Schedule 3 and Section 27(1)(b) of the 1995 Act refer). He signed an application form confirming that he had a contract with the company when this was in fact not the case. He entirely failed to exercise the required continuous and effective management of the transport activities of the business. He carried out none of the many transport manager tasks listed in paragraph 60 of the Senior Traffic Commissioner’s Statutory Document 3. Living 120 miles away he made only the very occasional visit to the operating centre and left no mark while he was there. Drivers had never heard of him. He was completely unaware of what tachograph analysis system the operator used and was unaware of the drivers’ hours malpractice which was rampant. He said that he intended only to be on the licence for a few weeks as a stopgap, but he allowed those weeks to drag into more than six months until he was replaced by Ms Anghilache. Mr Winslow, by acting as a “flag of convenience” transport manager, enabled the company to demonstrate the outward sign of professional competence when in reality it had no such thing. While he has no adverse compliance record with the licence of A1 Budget Skips Ltd, this positive factor is heavily outweighed by the negative of being the transport manager on the Bud Rescue & Recovery licence but failing to carry out any of this post’s duties. Such conduct means that the loss of his good repute is inevitable.

8. Consideration and decision

The negative issues relating to the operator are strong. Despite the fact that it was at a public inquiry in July 2021 and was on notice from DTC Dorrington that a much better performance was expected, the director Heeru Malkani seems to have taken an excessively laid back approach to what was happening. He was unaware that two drivers had put themselves back to “self-employed” status, despite him having given an explicit undertaking to cease using drivers on this basis. He must have been aware that James Winslow was providing only a fig leaf of professional competence, as Mr Winslow received no money and did not have a contract. I accept that Mr Malkani was taking steps to put Ms Anghilache through the transport manager CPC exam, but this did not result in her nomination until January 2023, more than six months after Mr Winslow’s “appointment”. The consequence of a lack of a competent transport manager was that drivers were scheduled and instructed by the traffic office who had zero knowledge of drivers hours rules, with the result that drivers were assigned work that they were not legally able to do. And no one in the company understood the basic concept that “out of scope” journeys (typically, recovery work within a radius of 100km) should be recorded as “other work” and could not be counted as “rest”. The result was widespread non-compliance with the drivers’ hours rules. Mr Malkani states that he was unaware of all this: he should have taken a much closer interest in what was going on, instead of simply assuming that everything was it should be.

On the more positive side, I accept that today, on the date of the inquiry, matters are much better managed. The company has (at last) put its house in order. Having heard from both Mr Malkani and Ms Anghilache and read updates from the DVSA vehicle and traffic examiners, I conclude that I can (just) trust the company to comply in the future. But I am certain that, had DTC Dorrington been able to look into a crystal ball in July 2021 and foresee that self-employed drivers would continue to be used (albeit to a more limited extent than the one he found) and that a name only transport manager would be on the licence for more than six months, he would have revoked the licence there and then.

The conduct of the company puts it in the “serious” category as defined by the Senior Traffic Commissioner’s Statutory Guidance Document No 10 – “persistent operator licence failures with previous public inquiry history”. I am therefore suspending the licence for the period of 21 days – consistent with the STC’s guidelines -  to mark the seriousness of what has occurred (and been allowed by Mr Malkani to occur) and to act as a deterrent for others.

I would just add that absentee, name only, transport managers are entirely unacceptable in the industry: traffic commissioners have been banging home this point ever since I first took office in 2012 (and before that too): it is disappointing to find that, despite all the written decisions, all the transport manager seminars organised by trade associations which the TCs address, all the articles in the trade press and so on, there are still transport managers like Mr Winslow who appear not to have understood this message.

I decided not to take action against Alexandra Anghilache’s good repute. She was too slow to realise that the system she inherited was dysfunctional, but she has taken corrective action and now oversees a generally compliant operation.

8.1 Transport manager – disqualification

Having removed his good repute, I must disqualify James Winslow from acting as transport manager on any operator’s licence (paragraph 16 of Schedule 3 refers). I am so disqualifying him for 12 months, until 9 May 2025.

Nicholas Denton

Deputy Traffic Commissioner

9 May 2024