Decision

Decision for CRIS & ALEX LTD and STEFAN OVIDIU CERNEAN – FORMER TRANSPORT MANAGER

Published 19 May 2022

1. IN THE EASTERN TRAFFIC AREA

2. CRIS & ALEX LTD – OF2016149

2.1 AND

3. STEFAN OVIDIU CERNEAN – FORMER TRANSPORT MANAGER

4. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

5. Background

Cris & Alex Ltd Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 5 vehicles and 5 trailers. The Director is Cristian-Ionut Chirca. Mr Chirca attended a virtual DVSA New Operator Seminar on 8 October 2019. Stefan Ovidiu Cernean was appointed as Transport Manager from 30 July 2019. He attended a two-day CPC refresher course on 23 and 24 May 2019. On 18 November 2021 correspondence from the operator (page 48) suggested that Mr Cernean had been on gardening leave since 15 November 2021 and that he would leave that position on 20 November 2021.

There is one Operating Centre at (W6) Gladwins, Pinstone Way, Gerrards Cross SL9 7BJ. There is one declared contractor showing on the licensing record: Croft Brothers, said to be undertaking Preventative Maintenance Inspection of vehicles and trailers at 6-weekly intervals. In evidence it was confirmed that the operator also tows trailers on behalf of Amazon, Tesco’s, and Aldi.

The Operating Centre is subject to an undertaking that vehicles and trailers will be parked in Area W6. There is currently no Transport Manager listed on this licence. Transport Manager application form was lodged on 28 January 2022. That application refers to a Certificate issued by the Romanian competent authority on 4 August 2018. A letter from the Home Office dated 2 December 2019 confirms that Ms Chirca qualified for pre-settled status under the EU Settlement Scheme and has been granted Limited Leave to stay in the United Kingdom under Appendix EU to the Immigration Rules, suggesting continuous residence in the UK from at least 31 December 2020.

Mr Cernean continues to act as Transport Manager for Filsobreira Ltd, which holds a standard international licence, OF2003082.

6. Hearing

The Public Inquiry was listed for today, 3 May 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Cristian Chirca, accompanied by Alexandra Carabelea. He was unrepresented. Mr Cernean failed to appear. The operator informed me that they had spoken two weeks ago, when Mr Cernean was abroad but was left with the impression that he would attend today. I was, therefore, satisfied that there had been good service and that I could proceed in his absence.

7. Issues

The Public Inquiry was called for me to consider whether there were grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(b) – condition to notify matters going to professional competence

• 26(1)(e) – statement that Stefan Ovidiu Cernean was exercising effective and continuous management of the transport operation, and to comply with conditions on the licence

• 26(1)(f) – undertakings (vehicles and trailers to be kept fit and serviceable, effective written driver defect reporting, complete maintenance records, drivers’ hours and tachographs)

• 26(1)(h) – material change:

• 27(1)(a) – good repute, financial standing, professional competence

• 28 – disqualification of directors and operator to be considered

Mr Cernean was called to the Public Inquiry for me to consider whether I should make a direction against his repute as Transport Manager and thereby prevent him from relying on his Certificate of Professional Competence, by reference to section 27(1)(b), Schedule 3 and section 28.

The operator’s copy of the bundle was returned to the Eastbourne office, marked ‘Not called for’, although an electronic copy was also emailed. The operator also proposed the nomination of Alexandra Chirca to act as Transport Manager in order to meet section 13A(2)(d) and by reference to Schedule 3 and the statutory duty. In evidence, Ms Carabelea confirmed that the application had been made in the wrong name.

The operator was directed to lodge evidence in support by 19 April 2022, including financial, maintenance and other compliance documentation. Mr Chirca confirmed that he would supply original financial evidence at the hearing. I heard that Mr Chirca returned from Romania on the Sunday and as a result he was unable to provide original or verified copies, which I might admit as evidence. The copy statements showed regular payments to A Chirca on 14 February, 10 March and 4 April 2022. No communications were received from Mr Cernean.

8. Summary of Evidence

Following the above notification the licensing record shows that Mr Chirca removed Mr Cernean from the licence on 24 November 2021 using the self-service system. As a result, letters were sent to all known addresses on 26 November 2021 (pages 49 to 54) advising that due to the loss of the transport manager, I was obliged to consider revoking the licence.

A letter dated 21 November 2021 was received on 26 November 2021 from the director (page 55) requesting a Period of Grace in which to nominate a new transport manager. A further letter dated 17 December 2021 (page 56 to 58) was received from Ms Newton, indicating that the operator dismissed Mr Cernean. To that date, the operator had yet to nominate a replacement but was engaged in discussions with a potential candidate. I was referred to the engagement of a compliance consultant and was informed that the Director had attended a further Operator Awareness course. My colleague granted an initial Period of Grace until 21 January 2022 (page 59).

An application to nominate Alexandra Chirca was lodged online on 25 January 2022 (pages 62 to 65). Checks of that application suggested that Ms Chirca was a director of Dialex Ltd from 10 May 2019 to 1 January 2020. Dialex Ltd held OF2037055 from grant on 18 December 2020, with the same correspondence address as this operator. It was further noted that the named Transport Manager is an Alexandra Mariana Carabelea with a date of birth 3 August 1989 (the same as Ms Chirca). The email address on the TM1 signed on 28 January 2022 shows an email address for Ms Chirca as [REDACTED]. However, the TM1 application form failed to declare any other Transport Manager roles or other employment (pages 67 to 70). It was also in the wrong name.

On 31 January 2022 the Office of the Traffic Commissioner notified the operator advising that I was aware of an ongoing investigation by the Metropolitan Police. I therefore extended the Period of Grace to 28 February 2022 (page 71). The letter requested an explanation of how the former Transport Manager fulfilled his role or information to the contrary. The response from Mr Chirca, dated 13 February 2022 (page 87) referred to his interview by the police in December 2021 and admitted to making ‘errors in the management of my O’licence’. He suggests that he did not know what the Transport Manager was supposed to do but thought that he might attend and help the operator with the records. He goes on to suggest that Mr Cernean was busy with other work so that, by the start of the pandemic ‘in Dec 2019, he didn’t have any further involvement’ with this operator. He referred to the fact that there was no formal contract with Mr Cernean. The letter suggests that he now understands the role of the Transport Manager. In evidence I was told that there were no payments made to Mr Cernean and that he acted as Transport Manager in the interests of friendship. This was the first time this information had been disclosed.

A similar request was made of Mr Cernean. His response dated 13 February 2022 (page 83) suggests he agreed to act as Transport Manager for Mr Chirca and that he carried out those duties ‘until circa December 2019 when the pandemic hit the uk’. He refers to the restrictions, to catching Covid-19 three times and due to operating his own operator’s licence and states that the relationship with this operator ‘went cold’. He suggests that the two entities worked non-stop during the pandemic, which appears to contradict the reasons for withdrawing from this licence.

Mr Cernean makes no reference to the Contingency Statutory Guidance which was issued immediately prior to the imposition of legal restrictions on 23 March 2020.

Standard Operators

1. Article 13 of Regulation (EC) 1071/2009 provides a procedure for the suspension and withdrawal of authorisations, i.e. for Periods of Grace:

2. Where a competent authority establishes that an undertaking runs the risk of no longer fulfilling the requirements laid down in Article 3, it shall notify the undertaking thereof. Where a competent authority establishes that one or more of those requirements is no longer satisfied, it may set one of the following time limits for the undertaking to rectify the situation:

(a) a time limit not exceeding 6 months, which may be extended by 3 months in the event of the death or physical incapacity of the transport manager, for the recruitment of a replacement transport manager where the transport manager no

longer satisfies the requirement as to good repute or professional competence;

(b) a time limit not exceeding 6 months where the undertaking has to rectify the situation by demonstrating that it has an effective and stable establishment;

(c) ….where the requirement of financial standing is not satisfied, in order to demonstrate that that requirement will again be satisfied on a permanent basis.

1. The competent authority may require an undertaking whose authorisation has been suspended or withdrawn to ensure that its transport managers have passed the examinations referred to in Article 8(1) prior to any rehabilitation measure being taken.

2. If the competent authority establishes that the undertaking no longer satisfies one or more of the requirements laid down in Article 3, it shall suspend or withdraw the authorisation to engage in the occupation of road transport operator within the time limits referred to in paragraph 1 of this Article.

3. Professional competence (Article 4 and Statutory Document No. 3) requires at least one natural person with a genuine link to the operator and who is qualified with a Certificate of Professional Competence to act as Transport Manager. Traffic commissioners are aware of the duties summarised in paragraph 54 (now 57) of Statutory Document No. 4 and may have to take a view on what is practicable in all the circumstances to meet the statutory duty. The conditions on the operator’s licence require the operator to notify the traffic commissioner of matters which might impact for instance on the ability to show professional competence. Traffic commissioners would not normally expect to be notified of periods of short illness such as the general symptoms described in the current public health guidance. Where a person develops more acute symptoms, it may be necessary to grant a Period of Grace. Recognising the additional challenges of recruitment during the period of the outbreak, the Senior Traffic Commissioner has set a starting point of 4 months Period of Grace for qualifying operators. That starting point is intended to allow for an extension to the maximum period of 6 months should circumstances require that.

Rather than ignorantly suggesting that the impact of Covid would not be appreciated, as in his letter of 13 February 2022, Mr Cernean would have been better served by reference to that Statutory Document and the accompanying operational guidance, which was frequently updated during the legal restrictions. I refer in particular to paragraph 11 below:

Process for Periods of Grace

1. A standard operator seeking a Period of Grace must proactively apply. That application in effect invites a traffic commissioner to make an adverse finding that the operator cannot demonstrate that it meets the mandatory and continuing requirement for a stable and effective establishment, financial standing or professional competence. Members of staff within the Office of Traffic Commissioner are expected to assist all standard operators with regard to applications for Period of Grace and to advise them of these Directions.

2. Operators must understand that if, upon expiry of a Period of Grace, the requirement has still not been demonstrated then the operator’s licence will have to be revoked. For financial standing there is always the alternative of relying on additional sources of finance which might be secured or a voluntary reduction in authority to a level which can be supported.

3. In order to grant a period of grace the traffic commissioner or staff acting under delegation must first establish that one or more of the requirements is no longer satisfied. The traffic commissioner may then allow a period of grace to rectify the situation to be granted from the date of determination that the mandatory requirement is no longer met. The Upper Tribunal decision in 2014/008 Duncan McKee suggests that traffic commissioners will wish to see reasonable prospects for a good outcome. Where the reasons for the adverse decision are connected to the outbreak, traffic commissioners are entitled to infer that the situation will be time-limited, and that the McKee test is therefore met.

4. Traffic commissioners should recognise the exceptional nature of the operating environment during this period of uncertainty. Traffic commissioners are expected to give serious consideration to the grant of a Period of Grace to those standard operators who require it. In exercising their discretion, a traffic commissioner will include those factors whilst ensuring road safety.

Mr Cernean decided to absent himself, so I was unable to ask him to clarify. The operator was required to explain the reference to December 2019 and the pandemic. Mr Chirca suggested that it was a mistake. He claimed that Mr Cernean attended weekly at the start of operations but by December 2020 this had stopped. He could produce no evidence that Mr Cernean had been involved. It was described as a ‘casual arrangement’ and that is reflected in the compliance systems, with no payments made. I was told that operations have involved third party trailers since the start of the licence in July 2019 and yet there are no records or systems in place. In reality, drivers have not even recorded walk round inspections of the operator’s own trailers. There was no evidence that the operator or Mr Cernean had heeded the advice in DVSA’s Guide to Maintaining Roadworthiness or referred to the publicly available IRTE publication: Roadworthiness: Industry Best Practice for third party trailer operators, with its suggested “Co-operation request letter to trailer owner”. Mr Chirca demonstrated his awareness of the large display stickers on many supermarket trailers showing inspection, annual test, and brake performance dates, but there was no evidence that he or Mr Cernean had included that in the driver instructions.

I was, therefore, interested to consider the compliance records provided. I noted two clear folders containing maintenance documentation including a yearly planner referring to vehicles GL16 LNA, DG66 WFC, DG66 ZKW, WX65 ZRD, DG66 ZKZ, RK14 EOS, WX65 ZRD and trailers C233202 and C233190. It was noted that the documents were not filed in a particular order with copies of roller brake printouts (some almost illegible), V5C and invoices but in no particular vehicle order. During evidence, I was provided with an invoice from a consultant, Dan Mihai Vintilla of THS+ Ltd charging a sizeable sum for the preparation of these documents for this hearing.

My dip sampling of the records disclosed the following:

RK14 EOS

• 21 March 2022 – inspection (9+ weeks since previous inspection) with roller brake test: 41%, 35%, 22% with notable imbalance on axle 1 offside service brake. Inspection records defective wiper blades.

• 14 January 2022 – inspection (7 weeks since previous inspection) with roller brake test on 17 January 2022: 46%, 29%, 17%, with notable imbalance on axle 2 service brake, offside

• 25 November 2021 – inspection (19+ weeks since previous inspection) with roller brake test; 49%, 26%, 16%.

• 13 July 2021 – Annual test

• 13 July 2021 – roller brake test: 45%, 24% (marked as failed), 25%, with notable imbalances on axle 2 service and secondary brakes offside

• 9 July 2021 – roller brake test: 33%, 14%, 8% presented at 34% of Goods Vehicle Weight.

GL16 LNA

• 14 January 2022 (14+ weeks before hearing and 7 + weeks since previous inspection) – inspection with roller brake test on 26 January 2022 PUT: 56%, 39%, 18%.

• 25 November 2021 – inspection with roller brake test: 50%, 33%, 20%, brake pads under observation.

• 27 October 2021 – Annual test

• 27October 2021 – roller brake test: 51%, 33%,23%

That last example suggested that roller brake tests were not always completed within a week of the Preventative Maintenance Inspection. I was also concerned that the pro-forma themselves may not be up to date with the sample annexed to the Guide to Maintaining Roadworthiness. Several of the inspection manual items showed a ‘T’ next to them suggesting no separate sheet for trailers. It was suggested that this was for trailers, but I also saw photocopies of trailer specific pro-forma produced by Logistics UK. I noted that trailers were regularly presented for roller brake testing in an unladen condition so only achieved service brake performance in the region of 16% rather than the 45% required. In general, I was unable to identify obvious driver defect reports, which I contrast with the absence of any defect identified at inspection and the absence of reference to trailers including those owned by third parties.

This was all the more concerning when I was told that the three remaining drivers are self-employed. As the Upper Tribunal explained in 2019/54 Bridgestep Ltd & Tom Bridge and by reference to the HM Revenue and Customs factsheet and opinion: “Unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. The Upper Tribunal expressed concern that arrangements such as this are anti-competitive being concerned with reducing the cost of employing drivers and gaining a competitive advantage over other compliant operators. The resulting risk from a lack of control was evident from the approach to driver reporting, and that is present here. It is surprising that any competent Transport Manager would be content with this arrangement.

On a more positive note, another folder contained a driver Induction Checklist, contracts of employment, copies of licences, and Home Office documents for drivers Matis, Tocitu, Moraru, Mitopan, Florin, Lipceac and Chirca. There was a further folder with spreadsheet referring to driver medicals, right to work status, driving licence information, driver CPC, payroll, training, and holidays. I noted the missing mileage reports, vehicle download history, vehicle activity reports, driver card download reminder, and driver infringement memos (including copies translated into Romanian).

9. Determination

On the basis of the evidence summarised above, I was satisfied that I should make adverse findings under the following provisions: 26(1)(b) – the condition to notify matters going to professional competence, 26(1)(e) – statement that Stefan Ovidiu Cernean was exercising effective and continuous management of the transport operation, and to comply with conditions on the licence and I also found that Preventative Maintenance Inspections were not conducted at the declared intervals, 26(1)(f) – undertakings (vehicles and trailers to be kept fit and serviceable, effective written driver defect reporting, complete maintenance records), 26(1)(h) – material change in financial standing and professional competence.

As the Upper Tribunal explained in 2012/017 NCF Leicester Ltd, being of appropriate financial standing has always been considered to be a continuing requirement. As indicated, financial evidence was not made available in an admissible form, despite advice from my office, resulting in an adverse finding under section 27(1)(a).

My colleague had already found that there was no Transport Manager in place, but permitted a Period of Grace, which was extended to this hearing. As indicated above, the operator nominated Ms Chirca to act as the Transport Manager. She holds a Certificate of Professional Competence issued in Romania 2018. Evidence of Limited Leave to Enter the UK has been provided which dates from 2019. When the Office of the Traffic Commissioner sought a certificate of repute which Ms Chirca should obtain from the Romanian authorities, the operator advised that the competent authority “doesn’t provide anything like this”.

In evidence, Ms Carabelea confirmed that the application had been made in the wrong name, i.e., Chirca. I also sought to clarify when she had entered the United Kingdom. She told me that she had become resident from 19 April 2017, i.e. before the date on which she gained her qualification from the Romanian authorities. She indicated that this was obtained together with her driving qualification and ADR certification and that she suggested that this was a shorter course. I refer to Article 8 of Regulation (EC) No, 1071/2009: 8 Conditions relating to the requirement of professional competence

In order to satisfy the requirement laid down in Article 3(1)(d), the person or persons concerned shall possess knowledge corresponding to the level provided for in Part I of Annex I in the subjects listed therein. That knowledge shall be demonstrated by means of a compulsory written examination which, if a Member State so decides, may be supplemented by an oral examination. Those examinations shall be organised in accordance with Part II of Annex I. To this end, Member States may decide to impose training prior to the examination.

1. The persons concerned shall sit the examination in the Member State in which they have their normal residence or the Member State in which they work. ‘Normal residence’ shall mean the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal ties which show close links between that person and the place where he is living. However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who, consequently, lives in turn in different places situated in two or more Member States, shall be regarded as being in the place of his personal ties, provided that such person returns there regularly. This last condition shall not be required where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence.

She had been assisting with compliance but told me she had yet to assume full responsibilities, so I have not made any formal observation on her ability to meet the statutory duty. She would be well advised to remind herself of the brake testing requirements. However, in the absence of the repute certificate and a qualification gained when she was normally resident in the issuing company, I remained to be satisfied that she met the requirements of Schedule 3 so that she might be appointed as Transport Manager. I, therefore, recorded an adverse finding against the operator under section 27(1)(b). Mr Chirca informed me that he had sat the examination 4 weeks ago, but for the reasons recorded above, I did not view that as providing reasonable prospects for a good outcome (as per 2014/008 Duncan McKee).

The presence of a Transport Manager capable of exercising continuous and effective management is an important element in determining whether an operator can comply in future. I drew back from making a formal finding against repute in part due to the positive evidence of some systems. In any event, the above findings in respect of mandatory and continuing requirements necessitated the revocation of this operator’s licence. I made it clear that repute was left hanging by the thinnest of threads and that I was unimpressed by the commercial advantage gained through the driver engagement and the failure to pay the previous Transport Manager who had long since even purported to meet the statutory duty. As it transpired in evidence, the systems employed when Mr Cernea was in post could not amount to effective or continuous management of the transport operation. His attitude to legitimate inquiries and his approach to this Public Inquiry go to confirm that he was aware that he failed to exercise that duty and to notify promptly when he wanted to pursue other work. Those are not the actions of a reputable Transport Manager and I therefore find that he no longer meets the requirements of Schedule 3 and that he should be disqualified from relying on his Certificate of Professional Competence. He has 14 days from the date of this decision to make representations as to the appropriateness of a rehabilitation measure, failing which the disqualification will be for an indeterminate period or until he makes a successful application to vary that direction.

I took into account the nature of the operator’s work and its commercial relationships but was concerned at the risk presented, particularly by a lack of trailer management. I took account of the positives in not making a direction against repute or for disqualification, but this licence will be revoked from 23:45 on 6 June 2022.

R Turfitt

Traffic Commissioner

3 May 2022