Decision

Decision for Danehurst Transport and transport manager Grzegorz Zajac

Published 6 May 2022

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

1. DANEHURST TRANSPORT LTD OH2031183

2. TRANSPORT MANAGER – GRZEGORZ ZAJAC

2.1 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

3. TRAFFIC COMMISSIONER’S WRITTEN CONFIRMATION OF REASONS FOR DECISION ON 19 APRIL 2022

4. Reasons

At the conclusion of the hearing, I told Mr Sosnowski my decision and the main reasons but confirmed that I would set everything out in writing as there is a lot to cover regarding Mr Zajac and Truckfast/HGV Hire.

Mr Wlodzimierz Sosnowski is the sole Director of Danehurst Transport Ltd which was granted an Operator’s Licence for one vehicle and one trailer on the 21 May 2020. The Transport Manager since the Licence was granted is Mr Grzegorz Zajac. The Operator and Transport Manager were called to a Public Inquiry by letter dated 10 March 2022. The call-in letters were sent to their respective correspondence addresses and by email. Mr Sosnowski communicated with my office prior to the Public Inquiry and attended the Hearing today (19/04/2022). Mr Zajac has not been in touch with my office since 10 March 2022 and did not attend the Inquiry. The call-in letter was sent by email and recorded delivery, and nothing was returned as undeliverable. I concluded that Mr Zajac was deemed served and chose to absent himself from the Hearing. Accordingly, I proceeded in his absence.

Prior to the Hearing Mr Sosnowski wrote to my office asking to surrender the Licence as he did not want to operate a vehicle anymore. I confirmed that decision would be dealt with during the hearing and asked Mr Sosnowski to attend, which he did. Mr Sosnowski was also asked to send the bank statements and documentation in advance, but he did not, but there would have been little for him to bring other than the bank statements based on what I have been told.

The relevant background in relation to this Operator and Mr Zajac as a Transport Manager and Operator are set out in the case summary and I do not repeat it here. Mr Zajac’s abilities were considered at hearings for other Operators in 2021 such that I decided it prudent for my office to request a DVSA Desk Based Assessment for Danehurst Transport Ltd. The outcome of the Desk Based Assessment was marked ‘unsatisfactory’ due to the following shortcomings: -

• No PMI records produced.

• No current forward planner produced.

• No evidence of a VOR system in use.

• No evidence of a safety defect & recall system in use.

• DDRs produced – unclear if these are from an electronic system.

• Change of maintenance provider not notified.

• No evidence of brake testing (operator states road tests are conducted).

• Vehicle failed MOT on 19 April 2021 (brakes) and failed retest on 30 April 2021 (brakes).

• No evidence of monitoring of Adblue usage.

• No evidence of wheel management systems.

• No vehicle unit or driver card (raw data) provided.

• One tachomaster report submitted – 2 minor infringements shown.

• Operator states driver card downloaded 1-2monthly

• No evidence of monitoring of the Working Time Directive.

Mr Sosnowski has told me, and I accept, that Mr Zajac completed the Desk Based Assessment questionnaire and drafted the response to the unsatisfactory assessment report. Mr Sosnowski signed the response because Mr Zajac told him to, but he did not read it. The response itself was hardly compelling, being largely inaccurate. By way of example, it states that only the Transport Manager has access to VOL and further suggests the fact that a vehicle passed its MOT on 17 August 2020 and 24 May 2021 was relevant to the vehicle failing its MOT on five items on 19 April 2021and a further three items on 30 April 2021. The fact that the vehicle is “years old and has a long mileage” is not relevant to two significant sets of failed tests. The failure results from the poor preparation for MOT.

The response also fails to mention that whilst the vehicle was back with the hire company for MOT, it loaned a different vehicle to the Operator. Over the weeks the vehicle was ‘off road’, it was not removed and therefore there was no margin for the courtesy vehicle to be operated. This was not addressed by the Operator or the Transport Manager at the time or in response to DVSA. The Transport Manager also confirmed that the hire company sends a mobile service to the yard with no description of facilities available but confirming that the brake test is road only. The fact that the Transport Manager found this to be acceptable is of itself concerning.

How the Operator came to be in such a mess at the time of the Desk Based Assessment became clear during Mr Sosnowski’s oral evidence today. There are longstanding Upper Tribunal authorities that the good repute of the Company is informed by the conduct of the sole Director. Mr Sosnowski was candid throughout, and I give him credit for that. Mr Sosnowski used to work for GLZ Logistics Ltd, Mr Zajac’s former licence. Mr Zajac told Mr Sosnowski at the end of 2019 that he was giving up his own Operators Licence. Mr Zajac told him this just before Mr Sosnowski went to Poland for Christmas. It meant that when he returned in early January 2020, he had no job to start. Mr Zajac offered to help set up Mr Sosnowski as an owner/operator as the work for a vehicle would still be available through Mr Zajac’s original customers. Mr Sosnowski agreed to get a Licence of his own on the basis Mr Zajac would deal with the traffic commissioner side for the application and the Licence, once granted. In the meantime, he worked for various driver agencies.

Mr Zajac completed the application form online and although Mr Sosnowski glanced through it, he did not read it. Regardless he was content to add his signature to the GV79 and TM1 forms. Mr Sosnowski says he trusted Mr Zajac as he had been a very good employer previously. The agreement was that Mr Zajac would sort out all the management side of the vehicle in terms of drivers’ hours, maintenance, forms to Leeds etc and Mr Sosnowski would effectively drive and continue doing his own invoicing, albeit now for the higher rate as a subcontractor. In essence, not much would change. Mr Zajac agreed a “promotional” rate of [redacted] inclusive per month because Mr Sosnowski was a former employee.

Mr Sosnowski found the actual operating centre for the application, but it was Mr Zajac who guided him to look at Marchwood Industrial Park. Sheppard Commercial Services were included on the application form for safety and compliance, but Mr Zajac explained to Mr Sosnowski that as he was going to be hiring the vehicle the hire company would actually sort all that out. A name was added to the application as a formality. Mr Sosnowski admitted that it was never his or Mr Zajac’s intention to use Sheppard Commercial Services as the maintenance contractor.

Mr Sosnowski said that he sourced the specified vehicle himself after he saw the advert for ‘Truckfast’ in one of the trucker magazines. Although there are other hire companies closer to Southampton the timing of April/May 2020 with COVID meant hiring was not straightforward. Truckfast was able to provide a vehicle the quickest and its rates were very favourable, significantly better than local rates. Mr Sosnowski travelled to Dewsbury and hired vehicle PO11ANR. The vehicle was specified on the Licence on 8 June 2020. The only documentation handed over by Truckfast was a vehicle condition sheet of the type supplied when you hire a car. The agreement included Truckfast doing preventative maintenance inspections, tyre management, damage repair etc. within the hire cost. Mr Sosnowski was told that a mobile fitter would attend the operating centre to deal with all the maintenance.

Mr Zajac did attend the operating centre and inserted the company card into the vehicle data unit prior to the vehicle operation, but he did not ask to see any other documentation or paperwork. There was never any mention of a ‘first use’ maintenance inspection either from the hire company or Mr Zajac. Thereafter Mr Sosnowski would contact Truckfast a few days in advance of when the eight weekly inspections were due to arrange for the fitter to be on site. As the fitters work 24/7, they were always available to do his PMIs on the weekend when he was not working. Mr Sosnowski did not need to be on site, he would simply hand the keys to the fitter and then the fitter would leave them discretely afterwards. The fitter never left any paperwork for Mr Sosnowski and Mr Zajac never asked to see any paperwork. The only time Mr Sosnowski saw Mr Zajac was when he came to download the vehicle unit and driver card. For the first few months of the Operator’s Licence this was monthly, but there came a time when the intervals were extended, sometimes significantly, and it was random rather than there being a pattern. In between there would be occasional text messages around payment of Mr Zajac’s invoices. Mr Zajac offered to do the New Operator Seminar as Mr Sosnowski was busy working. There was no suggestion from Mr Zajac that Mr Sosnowski should attend the Seminar himself.

When I asked Mr Sosnowski about PO11ANR and the failed MOTs he confirmed that Truckfast asked him to take the vehicle to Dewsbury for MOT and they gave him a courtesy lorry for the intervening period. The courtesy lorry registration (PX60CKO) was not specified on the Operator’s Licence. However, it went on for some weeks and when he asked Truckfast for PO11ANR back, he was originally told that he paid for access to a vehicle not a specific vehicle. Mr Sosnowski ended up having an argument with an individual called Marcus (who said he was a director), with Mr Sosnowski making it clear that PO11ANR was on his Licence, and he wanted that vehicle back. Mr Sosnowski was able to check his daily walkaround App during the Hearing to confirm that it was the 13 May that he started driving PO11ANR again and that the vehicle registration mark of the courtesy vehicle was PX60CKO. The relevance is set out later in this decision.

Mr Sosnowski confirmed that he had not seen Mr Zajac at all since approximately August 2021. The Desk Based Assessment request was simply forwarded straight on to Mr Zajac and the response sign off done by messaging. However, he did continue to pay Mr Zajac up until March 2022. Mr Sosnowski told me that, having discussed the PI papers with a solicitor and some other smaller operators in the area, he now realises that there is so much more to holding the Operator’s Licence; he cannot simply rely on a Transport Manager and continue as if the driver only with no other responsibilities. Mr Sosnowski may want an Operator’s Licence again in the future. He intends to do far more preparation, to include potentially doing his own transport manager qualification before applying again.

This Licence was only granted in May 2020 but in that time the Operator has posed a significant risk to road safety, as evidenced by the MOT failures, roadside prohibitions, and the absence of any scrutiny by the Transport Manager. Whilst this is a first Public Inquiry, that is not a barrier to significant regulatory action in a serious case. This is a very serious case. The Licence was granted on a false premise, namely that the Director knew what he was doing and that the Transport Manager would do his job properly. That did not happen from the date of grant, and it is fortunate that the Desk Based Assessment was completed and forwarded to my office as quickly as it was.

I cannot trust Mr Sosnowski at present and in fairness he acknowledges this himself. As he is an HGV driver the loss of Operator Licence does not mean the end of the business as he will still use it to invoice for agency driving while he considers next steps. The failings are so serious that loss of good repute and revocation are the only proportionate outcomes. I have stepped back from disqualification because I am satisfied that Mr Sosnowski has learned a salutary lesson from his dealings with Mr Zajac, Truckfast and HGV Hire. Accordingly, I reached the decision in paragraph 1 above.

4.1 Mr Zajac

By signing the TM1 form, Mr Zajac committed to exercise continuous and effective management of this Licence from May 2020, yet he barely paid ‘lip service’ to the role. There was no ‘first use’ inspection, which is a basic requirement. He met with Mr Sosnowski at its most frequent, monthly, for approximately 15 minutes. There is no evidence that he inspected the vehicle himself to see how the walkaround checks were being done and there was never any maintenance paperwork for him to inspect and he did not challenge this. The brake testing was by road test only, as far as they knew anything at all at the time. When brake tests were subsequently sent through, they were for MOT only. The Desk Based Assessment Report is a travesty for any Licence but especially a Standard Licence.

By failing to attend the Public Inquiry Mr Zajac has not presented himself to answer my questions in relation to GLZ Logistics Ltd and the Liquidator’s report, which is in the Public Inquiry bundle. The Liquidator’s abstract of receipts and payments shows a deficit of £154,131.23. This includes sums owing to HM Revenue & Customs for VAT. The other figure that stands out is £50,000 due for a Bounce Back Loan and a director’s loan account, which is overdrawn with an outstanding balance of £36,902.58. Operator Licensing is about road safety and fair competition and these matters have come to light since the GLZ Licence was surrendered. The surrender of the Licence is not a barrier to me asking about these matters, particularly where Mr Zajac is required to have good repute to be a transport manager. If Mr Zajac is in the purview of a Traffic Commissioner again in the future, then the timing of the bounce back loan and the overdrawn directors loan account, together with the significant sums owed to trade creditors may need to be explored at a Hearing.

Apart from Danehurst Transport Ltd, Mr Zajac is not currently on any other Licences. I do not know what his future intentions are. However, this is not the first Operator to tell me that Mr Zajac has completed application forms without making sure the applicants fully understand the requirements or where he has failed to exercise continuous and effective management of the transport operations (page 3 of the Public Inquiry bundle). His history in relation to this Licence and previous findings are such that loss of good repute is the only proportionate outcome. I can no longer allow him to mislead Operators, Applicants, and Traffic Commissioners as to his integrity and competence. Similarly, it acts as a warning to those considering engaging him as a transport consultant. Mr Zajac’s lackadaisical approach to the role is an insult to the hard-working professional competent Transport Managers that are the mainstay of this industry. Without hearing from Mr Zajac, and on the information available, there is nothing before me to suggest that a period of time alone would mend Mr Zajac’s ways. Similarly, it is difficult to set rehabilitation measures in those circumstances. Accordingly, I have reached the decision set out in paragraph 4.

4.2 Addendum: HGV Hire Ltd, Truckfast Hire Ltd, Truckfast Truckserve Holdings Ltd, David Allon and Olivia Pemberton/TMS Group

Mr Sosnowski told me that during his hire period, he had to sign a new agreement because the hire company changed its name. The mechanics’ vans were originally liveried as Truckfast but were subsequently interchangeable between Truckfast and HGV Hire. The new agreement was with HGV Hire Ltd, and the address is as per the Desk Based Assessment namely, 3 Brewery Lane, Dewsbury, WF12 9HU. Apart from re-signing an agreement with HGV Hire Limited after a few months in 2020, nothing else changed. In April 2021 HGV Hire Ltd gave Mr Sosnowski PX60CKO as a courtesy lorry. Registered keeper checks of PO11ANR confirmed Truckfast Hire/TMS Group as the keeper from 5 June 2018 until disposal on 14 April 2022. The vehicle is now shown as transferred to the motor trade. The registered keeper of PX60CKO since 18 August 2017 to date is TMS Group. It is the operator who must control operations under a licence, but where they allow others to dictate compliance or even operations as a whole, that is likely to result in very serious action against the operator.

Truckfast Hire Ltd was dissolved on 14 May 2019. The sole director was David Richard Robert James Allon (often using James). David Richard Robert James Allon is also found as the sole director of Truckfast Truckserve Holdings Ltd, which was placed into Creditors Voluntary Liquidation on 28 September 2020. The Statement of Affairs signed by Mr Allon dated 18 September 2020 suggests the entity had no assets and owed £63,098.91 to HMRC and trade and expense creditors. The Liquidators Progress Report to the year end 27 September 2021 confirms at paragraph 4.2 that “further enquiries should be made into several transactions were identified further to review of the Company’s pre-appointment bank statements. The Liquidator is also investigating assets that were listed in the accounts ended 31 August 2019. The Liquidator is currently liaising with the Company’s advisor to progress these investigations, an update in relation to this will be provided in the next report to creditors.”

Mr Allon and Miss Olivia Pemberton are the sole directors of HGV Hire Ltd, incorporated on 28 August 2020. Mr Allon and Miss Pemberton were disqualified by me from holding or obtaining an Operator’s Licence or being involved in any entity that holds or obtains such a Licence in Great Britain for a period of ten years from 23:45 on 21 September 2021. The decision relates to their involvement in Continental Europe Express Ltd (OF1129816) and E Haul Ltd (OF1107594). A copy of the redacted decision is available from my office. Applicants, Operators and Transport Managers who are considering hiring vehicles and/or trailers from HGV Hire Ltd with maintenance included, should be aware of that decision. They must also understand that any maintenance provided requires close scrutiny by the Operator/ Transport Manager/Responsible Person. Further, the VOL record must record the actual maintenance contractor and not name some name of a contractor who will never see the vehicle. Where a mobile fitter is chosen, the inspection facilities at the operating centre must be declared on the GV79/GV81. The Guide to Maintaining Roadworthiness sets out the starting point for laden roller brake performance testing, and should be followed whether the hire company (in this case HGV Hire Ltd) offers it or not. The pre-MOT inspection and voluntary brake test also need scrutiny as the MOT outcome goes to the Operator’s record. As I said to Mr Sosnowski, even if rates appear favourable, you get what you pay for and in the end, you pay the ultimate price.

I have directed that a copy of this decision is sent to the Liquidator of Truckfast Truckserve Holdings Ltd as it will enable them to potentially ascertain what happened to previous assets of Truckfast/Truckserve.

Miss Sarah Bell

Traffic Commissioner

Written confirmation: 26 April 2022