Decision

Decision for CS Drivers Logistics Ltd

Published 21 July 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. CS DRIVERS LOGISTICS LTD – OF2036581

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

3. Background

CS Drivers Logistics Ltd seeks a Standard International Goods Vehicle Operator’s Licence authorising 3 vehicles and 3 trailers. The Director is Cristinel Sava.

There is one proposed Operating Centre at Orchard House, Gosberton Road, Surfleet, Spalding PE11 4BG. There is one contractor showing on the application: GEE Commercials, which proposes to undertake Preventative Maintenance Inspections of vehicles and trailers at 6-weekly intervals.

The applicant and its director Cristinel Sava have not been linked to any previous operation.

4. Hearing

The Public Inquiry was listed for today, 21 June 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The applicant failed to appear.

5. Issues

The applicant was put on notice that I was minded to refuse this application in correspondence and latterly dated 13 April 2021 (page 13). The public inquiry was called at the applicant’s request in order to allow it opportunity to satisfy me that the statutory criteria are met and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 13A(2)(b) – good repute

• 13A(2)(c) – financial standing

• 13A(2)(d) – professional competence

• 13C(4) – satisfactory arrangements and facilities for maintenance, which will not be prejudiced by and shortfall in finance – 13D.

The applicant was directed to lodge evidence in support including evidence of available finance and of proposed maintenance systems, by 7 June 2021. A further prompt was provided by the service of additional evidence sent by recorded delivery and first-class post on 25 May 2021. OTC records confirm that documents, call up letter, brief, additional evidence, have all been tracked and signed for by ‘CAVA’ (Director). A further email was sent on 8 June 2021 to remind the applicant about the missed deadline for submitting evidence. The caseworker also telephoned the applicant on 14 June 2021 but there was no response.

6. Summary of Evidence

I refer to the letter at page 56, a letter dated 5 October 2020, signed by the applicant Director, and referring to a bounce back loan of £50,000 for 72 months. The bank statements produced in the name of this applicant company refer to a ‘salary’ being paid by LN Transport Ltd, which holds OF2009763. In June 2020 that changes, with more regular payments from Enero Logistics Limited. I am unclear on what basis the applicant has suggested that operations will generate a turnover of £200,000 per annum. I remain to be satisfied as to section 13A(2)(c) and therefore sections 13D and 13C(4).

This application was created on 30 August 2020 with Geanina Popa as the nominated transport manager. Ms Popa withdrew herself as the nominated Transport Manager. An amended GV79 application to nominate Ms Sylwia Maria Lembicz was lodged on 12 January 2021. Email correspondence suggests that Ms Popa continues to assist Mr Sava.

The Case Summary highlighted concerns as to the capacity of Ms Lembicz. She is currently director and transport manager for Enero Logistics Limited, which holds OF1120295. Ms Lembicz attended a public inquiry on 5 March 2020, where her repute was found to be tarnished. The presiding Deputy Traffic Commissioner apparently found that vehicles operated under that licence had not been kept at the authorised Operating Centre, Ms Lembicz having made a calculated decision that it was in the financial interest of the Operator and the personal financial interest of the Directors. It was also noted that the operator failed to solve the issue of ineffective driver walk-round check. He apparently weighed this against the annual test results and prohibition rates. The DTC was apparently persuaded those exceptional circumstances provided some mitigation and imposed a series of additional requirements, recorded as undertakings for additional driver training, spot checks and auditing of driver defect reporting, with accompanying disciplinary processes.

This application proposes operation from the same Operating Centre, which the Deputy Traffic Commissioner permitted, subject to a list of restrictions. The applicant has offered the following restrictions to satisfy me as to the suitability of the proposed Operating Centre:

• The Permitted Access shall be the only means of ingress to and egress from the Proposed Operating Centre by authorised vehicles and trailers.

• Authorised vehicles and trailers shall only enter and exit the proposed Operating Centre in forward gear.

• Authorised vehicles will be approaching the proposed Operating Centre from the direction of the A16 should, proceeding to the roundabout on the A152 Gosberton Rd, in order to execute a 360° turn, so as to enter the proposed Operating Centre by turning left (rather than turning right across oncoming traffic).

• On exiting the proposed Operating Centre, authorised vehicles must turn left.

• There shall be no authorised vehicle movements into or out of or within the proposed Operating Centre between 11:30 and 2000 or between 23:30 and 08:00 on Monday to Sunday inclusive and no such movements between 11:30 and 20:00 or between 17:00 and 08:00 on Bank Holidays and nights immediately following Bank Holidays.

• There shall be no more than 7 vehicle movements into or out of or within the Proposed Operating Centre between 22:00 and 23:30 on any day.

• Engines of vehicles shall not be left running within the proposed Operating Centre for more than 5 minutes [prior to the vehicle leaving or after the vehicle has returned to the proposed operating centre.

• Refrigeration mechanism of any refrigerated vehicle or trailer shall not be left running or otherwise cause any noise (a) between 22:00 and 08:00 on any day of the week except in consequence of 7 vehicle movements into or out of the Proposed Operating Centre between 22:00 and 23:30.

• Vehicle reversing “safety bleepers” shall not be operational between 22:00 and 08:00 on any day.

• There shall be no loading or unloading of vehicles or trailers within the proposed Operating Centre.

• There shall be no repair of vehicles or trailers within the proposed Operating Centre beyond minor maintenance such as topping up of oils or screen-wash, emergency tyre changes and driver walk-round checks.

It has failed to attend to explain how these additional restrictions might be implemented.

Ms Lembicz is also now a Director of Enero Logistics Limited. She states that she will allocate 24 hours per week as Transport Manager and up to 10 hours per week to her Director duties.

The onus is on the applicant to satisfy me that the statutory criteria are met. The Upper Tribunal explained the hurdle in 2011/036 LWB Ltd:

..it is for the applicant or operator to satisfy the Traffic Commissioner that the person concerned can fulfil the role of transport manager. That role is defined…, which provides that it means in relation to a business: “an individual who, either alone or jointly with one or more other persons, has continuous and effective responsibility for the management of the road passenger transport operations of the business”. It follows, in our view, that when nominating an individual as a transport manager, (whether on an application for a licence or as an addition to or replacement for an individual who has acted as transport manager), it will be necessary to show that the person concerned will be able to exercise ‘continuous and effective responsibility’. That means that the Traffic Commissioner must be in a position to assess how much time the individual will devote to the business in question, what other demands that person will have on their time and what contractual relationship exists between the individual and the operator.

In our view, from the terms of paragraph 3 of Schedule 3, that the appointment of a new transport manager is, on its own, not enough to satisfy the requirement of professional competence. Instead the operator must go further and show that the person appointed is of ‘good repute’ and ‘professionally competent’ and that the person is under contract to provide “continuous and effective responsibility for the management of the road…. transport operations of the business”. That is why notification by TM1(G), is so important because it is the contents of this form, together with the original of the Certificate of Professional Competence, (or other proof of professional competence), the contact and the declaration by the new transport manager forming part of TM(1)G, which enables checks to be made to confirm that.. Schedule 3 has been satisfied. The existence of a contract is important because, together with other background information and the answers given on TM1(G) it will assist the Traffic Commissioner to assess whether the transport manager will be able to have: “continuous and effective responsibility for the transport operations”.

Ms Lembicz’s nomination as Transport Manager for OF2037270, held by Otex Limited, was refused on 14 May 2021, as the operator failed to respond within the deadlines to explain why she had failed to disclose all her appointments and the absence of information regarding her commitments to LEM Recruitment Ltd and LEM Hauliers Ltd. The Case Summary suggests that she may commit only 2 or 3 hours a week to that enterprise. The public record indicates that the company is still active, although she suggests that it might be in liquidation. Ms Lembicz failed to declare that appointment.

She was also nominated to act as Transport Manager on an application (OF0223021) lodged on 13 May 2021 by A Coupland (Surfacing) Ltd. Ms Lembicz has indicated that she can devote 5 hours per week to that proposed operation.

The Case Summary estimates that Ms Lembicz has commitments totalling 41 to 42 hours per week, in addition to any travel. Annex 1 of the Directions, in Statutory Document No. 3 on Transport Managers, reminds traffic commissioners that the road transport working time legislation limits the average working week to 48 hours over a given reference period with no week within that reference period being over 60 hours. The horizontal working time legislation (non-EU regulated mobile workers) requires that ‘adequate rest’ be undertaken each week. A Transport Manager must be able to discipline drivers and to restrict their hours.

At page 72 of my bundle is an apparently incomplete agreement between Enero Logistics Ltd and this applicant dated 19 June 2020, which is referred to as a ‘Driver service agreement’, which described this applicant company as ‘an independent trucker’. It refers to the contractor, this applicant, undertaking the transport of goods, where there is no Operator’s Licence.

I refer to the Upper Tribunal decision in 2019/054 Bridgestep Ltd & Tom Bridge where the Tribunal commented that “Unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. The UT went on to describe the vast majority of new operators making the right decision to employ their drivers, paying national insurance, pension contributions, holiday and sickness entitlement. The consequence in that case was that the company and Transport Manager felt unable to give any instruction to drivers whether it be in relation to route planning or otherwise and consequently, were unable to have continuous and effective management of the transport operation. In short, the company and transport manager had abdicated their responsibilities, and along with their failure to rectify the position in the five months leading up to the public inquiry meant that both Appellants rightly lost their good repute. The employment of drivers also goes to my assessment of section 13C(4) in this case.

No contract has been produced for Ms Lembicz’s services. On the day of the hearing this office received an email from Ms Lembicz indicating that she has withdrawn her support for this application. She indicates that she has tried to communicate with the Director, Mr Sava, by telephone and by leaving messages, but without success. In the absence of a CPC holder with sufficient capacity to meet the duty, I remain to be satisfied as to section 13A(2)(d).

The applicant requested this hearing and then failed to appear without any indication to the OTC that it was no longer required. This has proved to be a waste of limited tribunal time and resources. Faced with the matters of concern raised in the bundle served by the OTC, it has failed to engage and pursue its application. I cannot reach a positive view of the applicant’s repute under section 13A(2)(b) or the fitness of its officers.

The application is therefore refused for all the reasons given above.

Richard Turfitt

Traffic Commissioner

21 June 2021