Decision

Decision for Eastern Eagle Transport Limited

Published 20 December 2024

0.1 IN THE NORTH WEST TRAFFIC AREA

1. EASTERN EAGLE TRANSPORT LTD – OC2063240

2. AND COSTEL DUMITRA – TRANSPORT MANAGER

3. WRITTEN DECISION OF THE TRAFFIC COMMISSIONER

Eastern Eagle Haulage Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 4 vehicles and 4 trailers. The Director is Mr Marius Daniel Gheorghe. The Transport Manager was listed as being Mr Costel Dumitra, who has acted in that capacity since 02 October 2023, but was removed on 08 November 2024.  

The operator has a single operating centre, recorded as Compound 14, Royal Farm Business Park, Caldwell Road, Burton-On-Trent, DE15 9TU. Preventative Maintenance Inspections are said to be carried out by FPG Development Ltd, 63 Hevea Road, Burton on Trent at 6-weekly intervals.  

4. Background

Eastern Eagle Transport Ltd, with Mr Marius Gheorghe as Director, previously held licence number OH1120855. That was a Standard International operator’s licence authorising the use of 2 vehicles and 2 trailers. That licence was revoked with effect from 16 November 2022. It also held licence OD2037065, a Standard International operator’s licence authorising the use of 5 vehicles and 5 trailers. That licence was revoked with effect from 16 November 2022.

The company also made an application, OC2053792, for a Standard International operator’s licence authorising the use of 5 vehicles and 5 trailers. That application was refused on 31 January 2023. The application for the extant licence, OC2063240, was granted at a Public Inquiry held on 26 July 2023.

Transport Manager, Mr Dumitra, notified this office at application that he was to be engaged as an external Transport Manager, working a total of 6 hours per week in this role. He also notified this office that he was Transport Manager on three other licences (OD2055693 held in the name of Pro Transport Solutions Limited [6 hours per week]; OD2056713 held in the name of SDL17 Transport Ltd [four hours per week] and OH2034010 held in the name of Cllaudetrans Ltd [four hours per week]. He is also Director of Dimi Trans Ltd.

OD2055693 was revoked on 21 November 2023; OD2056713 remains valid, Mr Dumitra remains nominated as Transport Manager and there are no compliance issues noted; OH2034010 was revoked on 18 August 2024. Mr Dumitra was removed as TM shortly before the revocation of each revoked licence.

5. Pre-Hearing

This case was initially listed for a Preliminary Hearing dated 11 September 2024, but that had to be adjourned as the materials provided by the operator could not be accessed. Therefore, the presiding Deputy Traffic Commissioner set out that a new date would be set in October 2024 and gave case management directions for the receipt of evidence not later than 21 September 2024.

No material was received as per the directions of the Deputy Traffic Commissioner, and no response was received in respect of the invitation to the relisted Preliminary Hearing.

That relisted Preliminary Hearing was listed for Thursday 17th October. Neither the operator nor the Transport Manager attended – although I was advised at the Public Inquiry that the Transport Manager did actually arrive, but did not notify himself to the office and left as Mr Gheorghe did not attend. On review it was identified that the date provided on the call up letter was “Thursday 13th October”, whereas the 13th October was a Sunday. This is an error on the part of the office, and no blame is attributed to either the operator or the Transport Manager for the non-attendance.

However, on account of the failure of the operator to provide the requested evidence by 21 September 2024 I elevated the hearing from a Preliminary Hearing to a Public Inquiry. New calling in letters were issued to the operator and the transport manager for a date set as 11 December 2024. New case management directions were reissued.

In advance of the public inquiry those case management directions were not complied with. Transport Manager Mr Dumitra resigned from the licence, and Director Mr Gheorghe subsequently informed this office that, as he could not find a new TM, he is forced to quit the business.

I instructed the caseworker to write to both the operator and TM to advise that I was not vacating the hearing, and the public inquiry would be proceeding. Only Mr Dumitra subsequently responded to confirm he would be in attendance.

6. Public Inquiry

The public inquiry took place on Wednesday 11th December 2024 at the Golborne Hearing Centre. The operator was attended by its sole Director Mr Gheorghe. The Transport Manager, Mr Dumitra, was also in attendance and was assisted by Ms Colon, an interpreter provided by the Office of the Traffic Commissioner.

7. Issues

This operator has a checkered history having been subject of two previous licence revocations and a refused application. The extant licence was granted at public inquiry where the applicant was able to evidence that good repute had been restored.

Whilst Mr Gheorghe, a TM CPC holder, had not been disqualified from being a Transport Manager, a presiding Traffic Commissioner at a previous Public Inquiry did indicate that any future TM application ought to be fully considered by a TC. On the occasion of this licence being applied for Mr Gheorghe did not nominate himself as Transport Manager. Instead, he supported this licence application by nominating Mr Dumitra. The licence was granted at Public Inquiry with two undertakings, (1) to undertake rolling road brake tests at every preventative maintenance inspection, with records held for two years; and (2) to have an independent audit completed by 15th May 2024.

The evidence before me leads me to believe that these undertakings have not been appropriately complied with. Whilst an audit was provided, this was completed after the timeframe set by this office. In respect of the brake testing, these are often conducted after the PMI and not signed off by a competent person. I am left to ask how can a PMI conclude that a vehicle is roadworthy in the absence of a recent (within the previous 7 days) or concurrent brake test? Further, how can the vehicle be put back on the road without the required oversight from a competent person?

The findings of the audit cause me concern. The operator has failed to comply with many of the standard conditions and undertakings of the operator’s licence. Within the evidence it is noted that there is a failure to comply with a statement of expectation – namely that preventative maintenance inspections would take place every six weeks –; and that the operator is more likely than not using self-employed drivers, despite the clear indication at public inquiry dated 04 September 2023 that the operator understood the need for drivers to have PAYE status.

The audit findings also give rise to a concern that the previous transport manager, Mr Dumitra, was appointed in name only. He did not appear to be exercising continuous and effective control of transport operations, with the director (who did not apply to be transport manager and was not approved as such by this office) taking on that role.

The failure of the operator to comply with the directions set out by both the Deputy Traffic Commissioner following the adjourned Preliminary Hearing, and my clear case management directions for this public inquiry, are of significant concern and lead me to question whether this is an operator, or Director, that can be trusted to comply with the licensing regime.

Those case management instructions also requested evidence of financial standing. The evidence originally supplied was not suitable as the bank statements covered only a single month rather than the required three months. No further evidence was provided in respect of my more recent request and therefore I am no longer satisfied that the financial standing criteria is met.

Of the small amount of evidence that was provided – back before the original preliminary hearing dated 11 September 2024 – there is evidence that the operator has contracts with four maintenance providers. This differs from the records on the online operator’s VOL record, indicating that there has been a change to the maintenance arrangements which have not been notified to this office.

8. Summary of Evidence

An independent audit, provided as part of an undertaking agreed at the grant of this licence, was completed on 6 June 2024 by Plumwood Limited, a transport compliance consultancy in Rochester, Kent. The following issues are quoted from that report:

• “Records and Driver Training are currently signed off by the Director but should be signed off by the TM, as the qualified supervisor of the transport operation.

• Forward planner system needs improving based on operator’s maintenance history. The TM does not review the forward planner regularly.
• No VOR process in place but there is an informal process known to Director and Transport Manager.
• Evidence that when inspections are completed and no defects are found, nobody is signing it off to show vehicle is roadworthy. Records are kept on director’s laptop.  Maintenance inspection sheets are out of date.
• No evidence of an environmental and sustainability policy at time of audit. Fuel analysis is not undertaken.
• No documented calibration certificate for torque wrench purchased 6 months ago.  Director, Mr Gheorge has a degree in mechanical engineering and carries out wheel changes himself. No records of torque tags or retorque logs. Records show 2 inspections and 4 tyre changes but no other evidence.
• Various defects evidenced as reported by drivers with signature and rectification documented.  In-service defects reported directly to Mr Gheorghe - these are not recorded on drivers daily walkround check.
• There’s no evidence of safety recall checks being completed. Vehicle and trailer recall checks should be completed on a regular basis.
• At the time of the audit, the operator had received no prohibitions. There is no documented procedure informing drivers of what to do if stopped at the roadside but verbal training has been given to call Mr Georghe.
• Working Time Directive is only monitored visually when driver cards are uploaded to Tachomaster, there is no documented evidence of these checks.  The operator was unaware of the necessity for manual entries for rest between weekly shifts.
• No evidence seen of reports showing zero infringements - verbal confirmation only from Mr Gheorghe that no infringements received.
• Speeding infringements are visually inspected on Tachomaster. Mr Gheorghe confirms he speaks to drivers but doesn’t record anything.
• There is no written policy in respect of vehicle loading.
• DVLA licence checks completed prior to a driver starting with the company (or undertaking a driver assessment) are not documented or saved.
• Verbal confirmation only that driver cards/licences etc are checked by Mr Gheorghe. There is no saved documentary evidence that these checks are completed.
• No additional documented training is given to drivers other than the drivers handbook and the initial training (verbal) they are given.
• Drivers are not drink or drug tested. There is no policy in place for drink, drugs, drivers’ health or fatigue.
• No direct instructions are written for drivers in respect of mobile phone use and in cab technology use.
• Safety equipment is fitted to vehicles. there is no documented training, or driver assessment, on using safety equipment fitted to vehicles.
• No written policy on working at height, or having 3 points of contact during entrance and exit from the cab.
• Auditor conclusion indicates that many processes seem to be in place but there is a lack of documentation. Mr Gheorghe appears knowledgeable but this can’t really be evidenced due to lack of documentation. Documentation must be put in place to ensure that Mr Dumitra, the TM, has full oversight and can evidence”

I am concerned that there are a wide number of failings which would present a very real risk to the health & safety of drivers and the wider road using public.

I am further concerned that there is no mention, within the audit, of processes or procedures managed, checked, or countersigned by the Transport Manager Mr Dumitra.

In advance of the public inquiry Mr Dumitra resigned from his role as TM and notice was issued to the operator informing them that this office was considering revocation of the licence under section 27(1)(a) that they no longer satisfied the requirement commonly referred to as “professional competence” – to have a transport manager that met the statutory requirements. Mr Gheorghe responded to state that he could not find another Transport Manager and had no choice but to close the business.

In evidence Mr Gheorghe and Mr Dumitra accepted the findings of the auditor. It was accepted and confirmed that Mr Gheorghe had appointed Mr Dumitra in name only, and had not used him as a Transport Manager. Mr Gheorghe had undertaken the Transport Manager duties himself, but continued to pay Mr Dumitru monthly.

This position is largely accepted by Mr Dumitru, although he maintains that this was not the initial intention. He claims he had not been allowed to fully undertake the role, but any suggestion of intention to undertake the role of TM is contradicted by the facts of the case – he visited the establishment address only once in the past year, and never attended the operating centre. He confirmed that he did not have any oversight of driver defect reporting, preventative maintenance inspections or drivers’ hours. He continued to accept the monthly payments.

A further issue arose during the hearing where it transpired that payments from the operator for TM services were paid to Mr Dumitra’s limited company, and there was no contract. Therefore, the requirements of a transport manager to be an individual, and party to a contract with the operator, were never satisfied.

Both Mr Gheorghe and Mr Dumitra accepted that, despite the assurances given to the previous Presiding Commissioner that all drivers would be PAYE employees, no reasonable efforts were made to rectify this position, and all four drivers were self employed / limited companies.

A response to the issues identified within the audit was received from Mr Gheorghe setting out a range of actions that he would take forward in consultation with “legal advisors”, “safety experts”, “Human Resources” and the Transport Manager. These read quite impressively, but were not substantiated with any evidence and, quite frankly, fall into the category of “too good to be true”. Mr Gheorghe accepted that it was unlikely that these could be achieved and didn’t comment when I proposed that that these were empty promises designed to satisfy the Traffic Commissioner and avoid any further spotlight on this operation. In short, I believe that I was lied to and there was never any intention to enact the proposals set out.

This deliberate attempt to avoid the scrutiny of the Traffic Commissioner is further illustrated by the failure to comply with the case management directions provided by this office in preparation by the public inquiry, and the failure to properly nominate Mr Gheorghe as the Transport Manager.

9. Findings

The findings of the audit, and the absence of any evidence to challenge those findings, satisfy me that I should record adverse findings under the following sections: Section 26 (1)(b) Fail to notify of change in maintenance arrangements;
Section 26(1)(e) Failing to fulfil Statement of Expectation and making a false statement, namely the operator’s response to the findings of the audit; Section 26(1)(f) – that rules on drivers hours and tachographs would be observed
Section 26(1)(f) that vehicles and trailers not to be overloaded;
Section 26(1)(f) Vehicles and trailers would be kept fit and serviceable;
Section 26(1)(f) that Drivers would reports any defects in writing; and
Section 26(1)(f) - (6) Maintenance records would be kept for 15 months.

In private session I discussed the financial standing requirement with Mr Gheorghe. No evidence of finances was provided and he conceded that he did not have the required funds available. He accepted that I would be obliged to make adverse findings in this area. In conclusion I make a finding under Section 27(1)(a) that this operator no longer meets the requirement to be appropriate financial standing.

As a result of no longer having a Transport Manager,and having no intention to appoint one, I make a finding that the operator no longer meets the ‘professional competence’ requirements in line with section 13A(3)(a)(i) or 13A(3)(b).

The admission of Mr Gheorghe that he added Mr Dumitra as transport manager in name only is a significant issue. Whilst he had never been disqualified as a Transport Manager Mr Gheorghe avoided this office scrutinising his appointment into that role. He was not an approved Transport Manager, but he undertook that role and paid another person, Mr Dumitra, to have his named added to the licence as a matter of convenience. Mr Gheorghe, and his Limited Company, failed to fully engage with this process by not following the case management directions, and sought to mislead this office by setting out fanciful plans for improvement which they never actually intended to implement. For these reasons I make a finding under Section 27(1)(a) that both the licence holding company and its Director, Mr Gheorghe, are no longer of good repute.

On consideration of the guidance provided by the Senior Traffic Commissioner on starting points for regulatory action, as set out at Annex 4 of Statutory Document 10, I place this case within the category of “severe”. There are clear and deliberate acts designed to give the operator a commercial advantage and which compromise road safety.

I consider the question posed by the Upper Tribunal in 2009/225 Priority Freight namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? I answer in the negative. The evidence before me in respect of this licence, and the history of the linked licences, leads me to conclude that it is highly unlikely that this is an operator who can or will comply.

I go on to consider the question posed by the Upper Tribunal in 2002/217 Bryan Haulage namely, is the conduct such that the operator ought to be put out of business? I answer this in the positive. The negative features of this case are well laid out above and I have little or no positive features against which to balance other than give credit for the fact Mr Gheorghe attended and accepted the failings.

I therefore make a direction under provisions set out in paragraphs 36 to 39 that this licence be revoked with immediate effect.

10. Transport Manager

Turning to Mr Dumitra the evidence before me is such that I am satisfied that he has failed in his lawful duty to ensure effective and continuous management of transport operations. I am required to consider the mitigations put forward for this. He told me that he wanted to assist the operator and in evidence he provided a generic driver handbook which he claims had been issued to, and rejected by, Mr Gheorghe. This was, however, the only piece of evidence he provided. I saw no evidence of systems or procedures.

He admitted that he was never involved in the processes around preventative maintenance, driver defect reporting or drivers’ hours. He had not visited the operating centre and had only visited the establishment address once. He claimed, however, that he was always available for the operator and spoke with Mr Gheorghe on the phone. He further claimed that he was prevented by Mr Gheorghe from undertaking the role. I do not accept that this is sufficient mitigation. Mr Dumitra continued to accept payment from the operator only resigning immediately prior to this public inquiry. A look at Mr Dumitra’s history shows that this has happened twice before – he resigned his position as transport manager for OD2055693 and OH2034010 within weeks before each of those licences were revoked.

Mr Dumitra has also failed to be clear and open with this office regarding the time he would be working as Transport Manager. In his application for this licence he claimed that he would spend 6 hours per week but, in a breakdown of his working week, the time allocated to it amounted to only 4 hours – on a Friday. In a separate application, for OD2056713 he set out that he would be working 8 hours per day, Monday to Friday, or his own company Dimi Trans Limited. This provision of inconsistent records again leads me to conclude that I cannot easily accept Mr Dimitra at his word.

For failing to ensure effective and continuous management of transport operations and for allowing himself to be added this licence in name only I find that Mr Dumitra can no longer be considered to be of good repute.

11. Disqualification

Having found that Mr Dumitra has lost his good repute as Transport Manager I am obliged to declare that he is unfit to manage the transport activities of any transport operation. I apply the minimum disqualification period of one year and set a rehabilitation measure that he is required to sit and pass the TM CPC examination before he can again be nominated as a Transport Manager. I find that this is a proportionate period to reflect on the failings set out across the independent audit and falling into the trap of allowing his name to be used to satisfy the requirement of professional competence when it otherwise may not have been satisfied.

In respect of the licence holder, having revoked the licence for the reasons set out, I take account of the guidance provided by the Senior Traffic Commissioner at Paragraph 108 of Statutory Document number 10. This is not this operator’s first public inquiry, nor their first revocation. It is a serious case showing persistent operator licence failures with inadequate response. I set the disqualification period at five years and apply it to both the licence holding entity “Eastern Eagle Transport Ltd” and it’s director Mr Marius Daniel Gheorghe.

David Mullan

Traffic Commissioner for the North West of England

12 December 2024