Decision

Decision for HIZ TRANS LTD

Published 22 October 2021

0.1 IN THE EASTERN TRAFFIC AREA

0.2 HIZ TRANS LTD - OF1146137 AND

0.3 WIKTORIA ZDANOWSKA - FORMER TRANSPORT MANAGER

1. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

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2. Background

HIZ Trans Ltd holds a Standard National Goods Vehicle Operator’s Licence, having been downgraded from a Standard International licence in December 2018, authorising 2 vehicles and 2 trailers. The Director is Zdzislaw Zdanowski. Companies House suggests that Igor Zdanowski was added as Director on 4 November 2019 and that he resigned 28 April 2020. The current Transport Manager is Gillian Raffaelli, who was appointed in June 2020. The licensing record suggests that it was previously Wictoria Zdanowska, from 2018 until April 2020.

There is one Operating Centre: Halls Transport, Black Bank Road, Little Downham, Ely CB6 2TZ. There are three declared contractors showing on the licensing record: Halls Transport Ltd (which is used occasionally and for brake tests), SPR Trailer Services Ltd, and Bradmanns Ltd, undertaking Preventative Maintenance Inspections of vehicles and trailers at 6 weekly intervals.

The licence was granted, subject to a strong warning about future drivers’ hours compliance. The director undertook to attend Operator Licence Awareness Training, which took place on 2016 and was noted to have a poor driving history at that stage. Mr Zdanowski was previously a director of Hiz Logistics Ltd (dissolved on 24 November 2015).

3. Hearing

The Public Inquiry was originally listed for 30 September 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge, when the operator was present in the form of Mr Zdanowski accompanied by Ms Raffaelli. Ms Zdanowska was also unrepresented. Mr Paul Barley, Vehicle Examiner, also attended on that date.

On 27 September 2020, the current Transport Manager raised serious allegations regarding the involvement of a transport consultant, Chris Baker of X-Ray Transport. Those allegations were developed and confirmed in further emails over the following two days. On 28 September 2020 Ms Raffaelli communicated the operator’s intention to submit “a sample of the maintenance procedures I have put in place since taking over as Transport Manager, since it is now clear that despite having full access to these, they were ignored by Mr Baker and not submitted.” This was confirmed in an email from the Director of the same date: “It is important to me that we, as a business, have dealt with the Public Inquiry at the soonest date possible. I have been working on my compliance for months now with great help of Gillian Raffaelli, the transport manager. I do not want to look back any more and I have taken full responsibility and consequences of my previous actions.” He went on to indicate his understanding that this might delay the Public Inquiry.

On 15 September 2020, my office received an unsigned email purporting to come from Chris Baker - chris@xraytm.co.uk, stating: His trans Ltd of licence of1146137 has asked if I can submit there evidence for public inquiry on the 30th of September I have posted this afternoon and will be with your office tomorrow.

A file of documents was lodged on 16 September 2020. That file includes:

• An unsigned letter dated 9 September 2020 purporting to come from Ms Zdanowska, attaching a template vehicle file, ‘handwritten control sheet to calculate the frequency of safety inspections on business vehicles and trailers’. The other documents referred were not included but were received in the post by OTC under cover dated 15 September 2020.

• Preventative Maintenance Inspection form for AK63 KWU completed by Halls Vehicle Services Ltd dated 30 January 2020 disclosing driver detectable defects (damage to off side rear tyre and near side front side light) and a failed rolling road brake test, and ‘forward planner’ (Ms Raffaelli’s “ready reckoner”) recording events between 11 May 2019 and 30 November 2020;

• Preventative Maintenance Inspection form for AE61 AED completed by Bradmanns dated 12 August 2020, 19 June 2020 but stamped by Bradmanns, 6 May 2020 by Bradmanns, a further format of PMI dated 26 March 2020 completed by Halls Vehicle Services Ltd showing driver detectable defects and no brake test: “Customer declined brake test”. Annual test certificate 26 February 2020, PMI dated 14 February 2020 completed by Halls Vehicle Services Ltd;

• Maintenance contracts both dated 6 May 2020 with SPR Trailer Services Ltd and Bradmanns Ltd;

• Driver Defect Reports sequentially numbered from 14002 to 14012 dated 16 March 2020 to 27 August 2020, completed by “Zack” in respect of AE61 AED. The majority of the defects are recorded as having been reported to “Jill”, i.e. Ms Raffaelli. I was provided with a copy of a Memo signed by Mr Zdanowski dated May 2020. That signature appears to be different to that on these defect reports.

• Financial documents – original bank statements in the name of the operator;

• Drivers Handbook, issued 6 May 2020;

• Memo to Driving Staff, headed Xray Management Support Services apparently to Mr Zdanowski dated 16 April 2019, purporting to be from Ms Raffaelli and describing her as “Transport Manager”;

• Attendance Certificates issued by X-Ray Management Support Services, signed by C Baker, referring to the attendance of Mr Zdanowski at a Drivers Hours & Tachograph Regulations CPC Module on 7 and 14 March 2020;

• Index for a compliance folder

I have set the allegations out in full as communicated in the letter of 27 September 2020:

As the current nominated Transport Manager for the above, I wish it to be known that some of the material I believe to have been delivered by Mr Chris Baker of XRay Management Support Services Ltd to the Eastern Area Traffic Office in advance of the Public Enquiry scheduled for 10am on Wednesday 30th September has been produced without my knowledge or authorisation.

Since accepting the position of Transport Manager earlier this year, I have put walkaround check, tyre monitoring and defect reporting/rectification systems in place; the unmarked defect reports numbered from 14002-14012 inclusive that I believe may have been submitted do not form any part of these systems. They were neither generated nor signed by Mr Zdanowski and have certainly not been reported to either myself (named as “Jill” on the reports) or the un-named “garage”.

The Driver Training Record I obtained from the DVSA on 13th April 2020 for Zdzislaw Zdanowski makes no mention of the Driver CPC Attendance certificate signed by Chris Baker and apparently issued by “X-Ray Transport Management Ltd” (CM00475/53) on 14th March 2020 and another from the same company (albeit with a different signature) on 7th March 2020.

I only became aware of the aforementioned documents following the receipt of a folder from Chris Baker late on 25th September. I understand this folder to be a copy of the information he has submitted to the Eastern Area Traffic Office in advance of the Public Inquiry. I was today, taking the opportunity to familiarise myself with the contents when I discovered the previously unseen documents. I understand that neither Miss Wiktoria Zdanowska nor Mr Zdzislaw Zdanowski have any knowledge of them either and have not been provided with the copies they were promised.

Following the discovery of these documents, I have strongly recommended that Mr Zdanowski dispenses with Mr Baker’s services with immediate effect and would ask that all unauthorised documentation is disregarded as evidence.

Mr Zdanowski appointed XRay Management Support Services Ltd in good faith and is extremely disappointed at my findings. He will also be writing to you, as will the previous Transport Manager, Miss Wiktoria Zdanowska.

In an unsigned letter dated 27 September 2020, Ms Zdanowska relays a hearsay conversation with the current Transport Manager. She makes allegations about “fraudulent” documentation and indicates that Mr Baker will no longer be representing the operator. The letter indicates her continuing involvement with the operator, that she has attempted to communicate with Mr Baker but there was limited response.

On 28 September 2020 the OTC team leader was emailed a signed email from Chris Baker, referring to himself in the third person and indicating that he was no longer representing the operator. A request for permission to appear had only been lodged on 16 September 2020.

The operator produced additional maintenance documentation at the hearing on 30 September 2020. I was also alerted to the prospect of additional documentation relating to Mr Zdanowski’s whereabouts on certain dates. The documentation includes what the operator indicates are the original versions of the driver defect reports. The operator and former Transport Manager confirmed that the following were at issue:

• Driver Defect Reports sequentially numbered from 14002 to 14012.

• Drivers’ Handbook dated 6 May 2020 - only just supplied to the operator.

• Memo to Driving Staff, dated 16 April 2019, purporting to be from Ms Raffaelli - not seen before.

• Attendance Certificates referring to Mr Zdanowski attending Drivers Hours & Tachograph Regulations CPC Module on 7 and 14 March 2020 – apparently not accurate.

I therefore asked Mr Barley to provide an updated report by reference to the documentation produced in the run up to the first hearing:

• Folder lodged by the transport consultant (excluding financial evidence)

• Folder of maintenance documentation produced by the operator on 30 September 2020.

• Additional selection of maintenance inspection records and driver defect reporting (via an App) produced on 30 September 2020.

I directed that the case be relisted for 20 October 2020 to allow Mr Baker opportunity to make representations and/or attend following service of the relevant correspondence referred to immediately above. This was communicated to Mr Baker under cover of a letter dated 8 October 2020. He failed to appear or to take the opportunity to lodge written representations.

4. Issues

The operator was put on notice of the potential seriousness of alleged shortcomings in the correspondence dated 1 April 2020 (page 109). The operator then requested a Public Inquiry. The public inquiry was initially listed for me to consider whether there were grounds for 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)(c)(iii) – prohibitions

• 26(1)(ca) – fixed penalties

• 26(1)(e) – statements, which have not been complied with relating to preventative maintenance inspections at 6 weekly intervals, and that Wiktoria Zdanowska would be responsible for exercising effective and continuous management.

• 26(1)(f) – undertakings (vehicles and trailers fit and serviceable, driver defect reporting, full maintenance records retained)

• 26(1)(h) – material change with regards to finance etc.

• 27(1)(a) - repute, financial standing and professional competence. It was recommended that Gillian Raffaelli attend to explain how she exercises continuous and effective management of the transport activities.

• 28 – disqualification of directors and operator to be considered 16. Wiktoria Zdanowska was called to Public Inquiry for me to determine whether she had met the statutory duty to exercise continuous and effective management of the company’s transport activities, and therefore whether it was necessary for me to make a direction against her repute, which might prevent her from relying on her Certificate of Professional Competence. 17. Ms Raffaelli was appointed after a short Period of Grace and on the basis of a declaration that she had ‘many years’ in road haulage; had been a training instructor since December 2018, with planned attendance each Monday to assess the information from the previous week and that she was connected with the established consultancy arrangement. 18. The operator was directed to submit the following documents by 15 September 2020:

• Evidence of its financial standing (which proved to be sufficient);

• The regular safety inspection records since 29/01/2020 for vehicles AK63KWU and AE61AED and the corresponding driver defect reports;

• the maintenance contract/s;

• the Forward planner;

• evidence of training or disciplinary action received by drivers and managers;
• other documentation to demonstrate compliance.

As indicated above, those documents (with the exception of financial records) were supplied to Mr Barley after the Case Management Hearing on 30 September 2020.

5. Summary of Evidence

Trailer C266091 was issued with an S Marked prohibition on 7 December 2019 for braking defects on off-side Axle 1. It had last been inspected on 4 October 2019 and was therefore overdue a Preventative Maintenance Inspection by over 3 weeks. The inspection on 4 October 2019 had identified the defect on that axle but no brake test of rectification was recorded. The Vehicle Examiner, Mr Barley, visited the operator on 29 January 2020 and met with the Director, Zdzislaw Zdanowski, and then Transport Manager, Wiktoria Zdanowska. Mr Zdanowski was not present throughout the investigation, as he departed to make a delivery. Ms Zdanowska remained.

The outcome of this investigation was recorded as unsatisfactory and in particular Mr Barley noted the following: * The maladjusted brakes, which caused the prohibition notice were a long-standing defect which should have been identified and repaired at the previous safety inspection.

• Annual test history.

• PMI records used by the maintenance contractor did not meet the requirements of the Guide to Maintaining Roadworthiness (November 2018).

• There was no section for recording brake/road tests and no roadworthiness endorsement section.

• PMI intervals were exceeded on numerous occasions.

• The wall planner in the office appeared ineffective.

• Weaknesses in the written driver defect reporting, which relied on a weekly running sheet.

• No documented Tyre Management System in place (other than PMI inspections).

• Evidence of poor management control.

A summary of the conclusions was left at the conclusion of the investigation. Apparently, the Director supplied a brief response. A more comprehensive response was received from the TM (page 73-75). In the course of his inquiries the transport manager informed the vehicle examiner that her father had chase and to have the preventive maintenance inspections conducted by Hail’s Transport Ltd but would then shop around for the best price for spare parts and rectification work . The operator shares an operating centre with Hail’s Transport Ltd at CB62TZ.

The VE was concerned that the TM had struggled to exert authority within the family business. The response to shortcomings received seemed to support this view. The TM, Wictoria Zdanowska, indicated that she planned to leave the family business to continue as a Transport Manager elsewhere. Plans to recruit a more experienced TM from outside the family were outlined. In the meantime, Ms Zdanowska sought to address the shortcomings identified and leave the operator in a better position. She refers to a newly created maintenance file as well as a plan for cooperation with the transport manager, which was yet to be agreed. In addition, she indicated that the forward planner had not been completed with the same dates as the previous year. It had apparently been discussed that inspections would be booked up front she sought to give assurances that preventative maintenance inspection dates would not be missed. This was apparently a new development. She indicated that the director of Halls Transport Limited have now updated the preventive maintenance inspection sheets, allowing extra space for break test results, notes on rectification, and a declaration of roadworthiness. She also stated that the inspections were up to date at that time. Much to the operator that an annual test did not count as a preventive maintenance inspection and that holidays were no exception to the declared intervals. She describes this as a main query which had remained to be resolved on the seminar. She indicates that they must have misunderstood what they were taught. This is particularly concerning from the holder of a Certificate of Professional Competence.

The remainder of the letter communicates the content of discussions, which took place between herself and the director. It was stated that PMI sheets had been amended to include brake tests and declarations; PMIs were now booked in advance so as to avoid intervals being stretched and that the director was to attend all inspections. DDR monitoring was also covered.

Only 10 days later the operator attracted another prohibition notice on 21 February 2020 for a fractured shock absorber. In addition to the prohibitions and fixed penalty notice issued, three Technical Roadside Inspection Reports raised concerns over driver daily checks and maintenance in general. These include:

• 21 February 2020 – AK63 KWU – 4 items; windscreen cracked, obligatory front nearside position lamp inoperative, faulty starter motor engine left running for inspection, and obligatory front nearside position lamp inoperative (trailer C244864);

• 15 April 2020 – AE61 AED – 1 item; windscreen wiper blades worn & nearside split;

• 1 September 2020 – 2 items – AE61 AED – abnormal tyre wear outer edge, nearside, 2 axle, and stop lamp inoperative, nearside (trailer C266091). This latter notice was issued to the Director, Zdzislaw Zdanowski.

In response to the proposal to revoke, Ms Zdanowska indicated that a change of TM was ‘imminent’. No new application was lodged but my office received an email from Gillian Raffaelli, referring to Ms Zdanowska’s resignation. Ms Raffaelli was then recently qualified and had been working for the operator for some weeks as a consultant. In her reply (page 112) Ms Zdanowska also questioned the standard of work by the ‘current maintenance provider’ and implies that a change in provider is under consideration even though it had been Mr Zdanowski who chose to ‘shop around’ for best prices for repair work and replacement parts and I noted the VE’s comments about the cause of the S marked prohibition. Halls Transport has retained its own operator’s licence. The compliance concerns could not simply be attributed to a father-daughter. Correspondence called into question the knowledge of Ms Zdanowska and Mr Zdanowski. By her own admission, the former Transport Manager (letter dated 11 February 2020) acknowledged that she had hesitated for a considerable time and had not been exercising the duties, due to mistaken family loyalties. She acknowledged that this decision had been delayed and that she had found herself in a difficult position. I noted the annual test failure rate of 29%. Since grant in 2016 the Operator had been issued with 2 prohibitions and 1 fixed penalty notice. Operations continued as before as the immediate PG9 to AE61 8ED on 22 April 2020 illustrated. Defects there suggested a serious failure in maintenance and driver defect reporting even after the previous transport manager had resigned.

1. Mr Barley usefully updated his evidence on 29 September 2020 to confirm that there had been three further encounters:

22/04/2020 AE61AED & C266091 Immediate prohibition to AE61AED

No Advisory Items

04/07/2020 AE61AED & C266091 No Advisory Items

01/09/2020 AE61AED & C266091 2 Advisory Items (one on each)

I was also alerted to advice given by Mr Barley to Mr Zdanowski (Zack) in May 2020 regarding the maintenance contractor. It refers to Jill’s request to give an assessment of PMI record suitability. He confirms the suitability of the trailer records but the attached appears to express concern with Bradmann’s pro-forma. He expressed valid concern at the confusing nature of the form with duplicate IM numbers whilst others (IM 3, 26, 12, 33, 58) do not appear. This might account for the change in format of the PMI forms seen above.

I noted that the Preventative Maintenance Inspection form for AE61 AED completed by Bradmanns dated 12 August 2020 was largely illegible, disclosing at least one driver detectable defects (tyre), different format PMI dated 19 June 2020 but stamped by Bradmanns, reference to a brake test but no results, a further format of PMI dated 6 May 2020 by Bradmanns with a failed rolling road brake test, a further format of PMI dated 26 March 2020 completed by Halls Vehicle Services Ltd showing driver detectable defects and no brake test: “Customer declined brake test”. Annual test certificate 26 February 2020, PMI dated 14 February 2020 completed by Halls Vehicle Services Ltd showing multiple defects which were not rectified: “inform Customer” some of which appear at the next inspection others refer to brake components, with a failed rolling road brake test.

Further, the Preventative Maintenance Inspection form for AK63 KWU completed by Halls Vehicle Services Ltd dated 30 January 2020 disclosed driver detectable defects (damage to offside rear tyre and near side front side light) and a failed rolling road brake test.

Mr Barley’s addendum statement of 7 October 2020 refers to his examination of the documentation produced in advance of the previous hearing. He has made the following observations:

• AK63 KWU, compliance calendar shows that Preventative Maintenance Inspection was due 27 January 2020, but actually completed on 30 January 2020, which is 5 weeks overdue. It identified 2 x tyres and a side light replaced. Mr Barley confirms that neither file showed repair or that the vehicles was fit to be returned to service. The vehicle was shown as VOR from 28 February to 13 April 2020 then SORN from 14 April 2020 to date. The timeline record implied that repairs were carried out by the contractor, but there was no repair action recorded against the defects and the declaration of roadworthiness was not signed. The file note requested that the VOR sign be placed in the vehicle until the repairs are actioned and signed off. The timeline refers to a proposed inspection in September 2020 before the vehicle returns to operation

• C244864 (844), shown as due for PMI in week commencing 10 February 2020. No timeline supplied. At Mr Barley’s visit the trailer had been inspected on 2 January 2020. It was issued with a delayed PG9 on 21 February 2020 for a fractured shock absorber. No copy of the PMI due on 14 February 2020 has been received. The consultant did not provide any trailer records but there was no evidence of investigation into the circumstances of the PG9.

• AE61AED, PMI and roller brake test completed 14 February 2020, PMI completed 26 March 2020, PMIs due 4 May 2020 and 15 June 2020 and 12 August 2020, but no record of when they were completed. VOR from 18 July 2020 to 11 August 2020, first use PMI on 12 August 2020 but no entry on the compliance calendar. The timeline record has not been kept up to date and the compliance calendar has not been adjusted to take account of the VOR. Mr Barley found that PMI intervals were complied with, but that inspections supplied via the consultant, were not signed off as rectified and roadworthy. File Note reference 14 February 2020 refers to a PMI, which was not present in the blue file. The PMI form was supplied by the consultant but not signed off and refers to the customer declining a brake test. Email 13 May 2020 referring to PMIs 26 March 2020 and 6 May 2020 seeking evidence of repairs. No evidence of retrospective repairs seen. Mr Barley noted a ‘mismatch’ between the records supplied by the operator and those supplied via the consultant in relation to the timeline but confirms the absence of repairs and declaration of roadworthiness on multiple PMIs.

• C266091, calendar mirrors AE61AED but the timeline was adjusted to reflect the VOR period. There are only 3 PMI records present: 6 May 2020, 16 June 2020, 11 August 2020. No trailer records were produced via the consultant.

• Forward Planning. The only records seen were those in the operator’s file. Mr Barley describes them as mostly satisfactory with minor discrepancies where PMI completion has not been updated and inconsistencies between the compliance calendar and the VOR periods recorded in the individual vehicle/trailer file.

• Driver defect reports, Mr Barley refers to the DDRS electronic system printouts for dates between 29 April 2020 and 12 May 2020. It is unclear if this system is still in use. A handwritten note records there are up to date records, which have not been added to the company on-line record. He notes the records produced by the operator for 28 May 2020, 15 June 2020 and 18 June 2020. A further 3 reports are included for 13 May 2020, 29 May 2020 and 26 September 2020. All have similar signatures, with the exception of 18 June 2020, but the handwriting on all appears similar. That report is attached to the PMI record for C266091. He contrasts these records with the 11 produced via the consultant, which for some reason are second/third page carbon copies and have been overwritten to a degree, making them difficult to read. They appear to be poorly or incorrectly completed, with registration appearing in the wrong box and no odometer reading recorded. The format does not match the formats supplied by the operator. Report 14006 for 13 May 2020 appears in the operator’s records but there are different defects recorded. Report 14009 is difficult to read and in particular the date. Mr Barley notes apparent differences in the signatures on the reports produced by the operator and those via the consultant. I note that report 14011 (27 July 2020) was apparently completed when the operator record, shows AE61AED as VOR.

My intentions regarding the management of this hearing were made very clear at the initial hearing. Nevertheless, the operator made attempts to serve extensive and additional material less than a week before the hearing:

• on 14 October 2020 there was an attempt to email all of the ‘daily walkaround checks’ for vehicle AE61 AED and trailer C266091 – in excess of 300 pages.

• on 15 October 2020 21:15, there was an attempt to email a zip folder containing weekly tyre monitoring sheets for trailer C266091, with an acknowledgement that the equivalent records for vehicle AK63 KWU and trailer C244864 do not exist as they were taken off-road before the system was implemented.

• a further email was sent at 21:22 attaching a zip file containing weekly tyre monitoring sheets for vehicle AE61 AED.

• a further email was sent at 21:33 attaching documents relating to trailer C244864, as the operator claims it was advised not to supply trailer records by the consultant.

• a further email was sent at 21:45 attaching documents relating to trailer C266091, as the operator claims it was advised not to supply trailer records by the consultant.

• on Sunday, 18 October 2020, a further email purported to serve additional ‘supporting evidence regarding the unauthorised documents’ provided by the consultant.

• a further email was sent at 21:24 attaching ‘written defect rectification reports …for the period April 2020 to the current date’.

• a further email was sent at 23:17 attaching documents relating to trailer C266091 and an updated ‘timeline’.

• a further email was sent at 23:25 attaching an updated ‘timeline’ said to relate to trailer C244864.

• a further email was sent at 23:41 attaching an updated ‘timeline’ relating to AK63 KWU and documents missing from ‘the folder submitted previously’.

• a further email was sent at 00:04 on 19 October 2020 attaching documents relating to AE61 AED, that were said to be missing from a previous folder.

• a further email was sent at 08:25 on 19 October 2020 attaching a further version of a ‘timeline’ C244864, asking me to disregard the previous version.

Those emails frustrated the previous case management. Mr Barley undertook to consider what were termed a ‘timeline’ with space and capacity to cross reference against relevant documentation. I did not have that time available, made all the more impossible by the late and electronic service. Due to current social distancing requirement, the tribunal office is not fully staffed, with caseworkers conducting their duties from home. The printing facilities are not available to those staff, even if I had additional capacity to consider the content of the documents (which I do not). Hard copies are not acceptable on the day, as they contravene the control measures put in place to protect staff and tribunal users.

Ms Raffaelli was the author of the covering emails. She confirmed in evidence that she also provided the commentary on various documents. In essence those comments confirm what was communicated at the last hearing:

• Memo to Driving Staff dated 16/04/19 containing the X-Ray management logo, was not created by her. She was unaware of the existence of the operator until February 2020, when she met Ms Zdanowska. It refers to her as the Transport Manager when she did not take up post until June 2020. I am asked to contrast this with the format of the Memo issued on 18 April 2020 by Mr Zdanowski.

• I am told that Mr Zdanowski did not attend any Periodic Training on 7 March 2020, as described in the certificate provided by X-Ray Management. Mr Zdanowski was apparently driving AE61 AED with other duties recorded from 07:50 to 12:53. The representations query the certificate which purports to have been issued by X-Ray Transport Management Ltd as a JAUPT accredited Consortium CM00475/53.

• Mr Zdanowski did not attend any Periodic Training on 14 March 2020, as described in the certificate provided by X-Ray Management. The representations query the certificate which purports to have been issued by X-Ray Transport Management Ltd as a JAUPT accredited Consortium CM00475/53 for a module on Drivers’ Hours and Tachograph Regulations.

• The representations query the driver defect reports numbered 14002214012 inclusive and submitted by Chris Baker. It is stated that they do not form part of the operator’s maintenance records and were not generated or signed by Mr Zdanowski. The representations refer to a number of anomalies which are common to most if not all of them, for instance the vehicle registration has been incorrectly entered into the “model” box and is also written in a strange format, which differs from the format consistently used by Mr Zdanowski. There is an absence of mileage and I am asked to accept that Mr Zdanowski never fails to enter the odometer reading. Reference is made to an unusual and distinctive mix of upper- and lower-case letters, which is consistent with the entries on the “Attendance at Hearing” form submitted by Mr Baker on behalf of the operator. I am referred to a number of differences between the entries on these forms and Mr Zdanowski’s normal way of recording. The representations make a similar comment to that of Mr Barley, in respect of the signature which purports to be that of Mr Zdanowski.

A copy of Mr Barley’s additional statement was served on Mr Baker on 8 October 2020. For the same reason that I have not been able to consider the documentation served on my office from 15 October onwards, it has not proved possible to serve copies of the operator’s additional documentation on Mr Baker. However, I am satisfied that he has been put on notice of the very serious allegations regarding the conduct of his firm. There has been no response received to date. I waited until 10:30 to start the hearing to allow additional time for Mr Baker to make contact. He failed to do so. I checked again at 11:05 but nothing had been received.

In evidence I heard from the current Transport Manager that the operator believed that the former consultant would fully prepare the case for hearing. The operator had not supplied trailer documentation far in advance of the first hearing as the consultant had advised that there had been no specific request, ignoring the general advice to bring documentation, which demonstrates compliance. When she took up her responsibilities, she became aware that things were not as they should be, and she attempted to piece together the record. The ‘timeline’ documents were intended as her reference note and she was unaware that the consultant had lodged them until after the event. The timelines were pieced together from scanned document and photographs due to the Covid restrictions being in place until July. That was the reason why she had continued to update the documents so various versions were attached to the email traffic, referred to above. In her own words, she could not undo the past but has sought to address the identified shortcomings. Ms Raffaelli confirmed that she had not previously used the Google calendar to mark off when tasks had been completed but told me it had proved to be effective at alerting her in advance to upcoming dates, so that she could email Mr Zdanowski. It was now being used as a forward planner and to record completed events and inspections. She accepted that the current OCRS is still not good but pointed to the improvement in scoring since her appointment, and as commented upon by Mr Barley. There is still some work to be completed and, in her words, she “has to keep tapping the stick”.

That last comment reflects some of the issues encountered by Ms Zdanowska. Ashe confirmed that the family relationship had influenced the decision making, to which I have referred. I have also acknowledged the content of her letters; the latter being dated 9 September 2020. I noted her involvement with the management of the company and her efforts to establish compliance and other management systems. Ashe communicated her enthusiasm and commitment during her evidence but her main challenge appears to have been in trying to persuade her father, The Director, to follow the processes, which she had put in place. She told me that she had sought the advice of other, more experienced Transport Managers, but also contrasted the expectations on Transport Managers with the actions of those appointed in the past. I reminded her that Statutory Document No. 3 on Transport Managers has been in force for nearly 9 years and was in circulation prior to that. She had attempted to employ a compliance template, supplied by a friend, but explained in evidence that she had gained considerable experience from working alongside Ms Raffaelli. She would be interested in using what she has learned to support another operator.

6. Determination

I am satisfied to the civil standard of proof that it is appropriate to make adverse decisions under sections 26(1)(c)(iii), (ca), (e) and (f) – undertakings that vehicles and trailers would be operated in a fit and serviceable condition, that there would be an effective written driver defect reporting systems, that full maintenance records would be retained for the prescribed period.

In the circumstances summarised above and in the absence of any evidence to the contrary, I accepted the operator’s evidence that the following documents could not be relied upon:

• Driver Defect Reports sequentially numbered from 14002 to 14012, were not the operator’s records.

• Drivers Handbook dated 6 May 2020 – does not form part of the operator’s procedures

• Memo to Driving Staff, dated 16 April 2019, purporting to be from Ms Raffaelli, was not sent by her and does not form part of the operator’s procedures

• Attendance Certificates referring to Drivers Hours & Tachograph Regulations CPC Modules on 7 and 14 March 2020, but Mr Zdanowski did not in fact attend.

These raised serious questions regarding the conduct of the consultant, which remain unanswered. I refer to paragraph 39 Of Statutory Document No. 9 on Case Management. The current position is that an unqualified representative must first seek permission to appear at a Public Inquiry or other relevant hearing. In appropriate cases traffic commissioners may refuse to hear representatives other than from counsel or solicitors. This distinction is based on the fact that unlike that of other representatives the conduct of counsel and solicitors is regulated in England and Wales by the Bar Standards Board or the Solicitors Regulation Authority and in Scotland by the Law Society of Scotland or the Faculty of Advocates, and therefore the submissions from counsel and solicitors carry more weight than those from other representatives. Transport consultants and representatives who are not counsel or solicitors are nevertheless expected to display a degree of competence and openness with the tribunal and if they fail in that regard it is open to the traffic commissioner to indicate that the person will not be acceptable to act as an advocate at public inquiry in the future. I do not seek to dictate the exercise of discretion available to my colleagues but I do direct that the circumstances of this case must be drawn to the attention of any presiding Commissioner when considering a request to appear from this consultancy. It will also be necessary to check the veracity of any communications received to the point that it is unlikely that any weight can be attached to direct communications from that consultancy firm or those connected with it. I will alert the Office of the Traffic Commissioner accordingly.

The suggestion that certificates have been produced for a JAUPT accredited course which did not take place and that the consortium organiser was unaware of those events (CM00475/53) clearly requires additional investigation. I have therefore referred that matter to the OTC Deputy Head of Compliance to pursue with the relevant authorities.

In respect of the efforts of the former Transport Manager, Ms Zdanowska, it is accepted that this did not amount to continuous and effective management. I refer to the useful Tribunal guidance in 2014/050 Andrew Harris trading as Harris of Leicester: “Given the importance attached to operators complying with the regulatory regime and given that transport managers must: “effectively and continuously manage the transport activities of an undertaking holding an operator’s licence”, it seems to us that whether or not an individual has the character, personality, ability and leadership qualities to ensure compliant operation as an operator or to effectively and continuously manage the transport activities as a transport manager is a factor which can, properly, be taken into account when assessing good repute.” It has been repeatedly stated that a transport manager must always be more than just a transport manager in name and a transport manager risks their repute if they find themselves in this position. If a transport manager finds them-self overridden by the operator or their agent to the point at which the transport manager no longer has the requisite continuous and effective responsibility, the transport manager must first notify the operator in writing and then, if the matter is not resolved, is expected to take appropriate action.

On Ms Zdanowska’s own evidence, she attempted to work with her father but found that, most probably due to their family relationship, she was unable to manage his actions as a driver. It was for the same reason she failed to take appropriate action and allowed her name to remain attached to this licence even where she was unable to exercise the statutory duty. As was pointed out to her, the operator could have sought a Period of Grace to seek a replacement, at which point I would have been put on notice of the correct state of management. In her favour, I note that she sought out the consultancy services of Ms Raffaelli, in a bid to ensure compliance. In those circumstances her repute has been severely tarnished but not lost.

I turned then to the position of the operator and started with the question posed by the Upper Tribunal in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The Tribunal itself has stressed the importance of action over promises. In that regard the efforts to ensure a more robust Transport Manager clearly weigh positively for the operator. I heard and read about the efforts to improve performance, which are supported by some of Mr Barley’s evidence. The more recent history suggests an improvement although some of the efforts were frustrated in part by the lock down restrictions.

The operator offered to have a full compliance audit. In this case the operator is a member of the RHA and suggested the association as the most likely supplier. I weighed that undertaking into the balance.

The operator and its sole Director, Mr Zdanowski, should not have permitted these shortcomings to have occurred. The improvements by the date of Public Inquiry mean that it is not proportionate to remove this operator from the industry. There is a hope that Igor Zdanowski might join his father in driving for the business in future, releasing Mr Zdanowski to spend more time overseeing the operation. I noted the evidence of the impact of regulatory action and accepted the undertaking for an audit, to be lodged with OTC within 4 months of this hearing. However, in 2019/025 John Stuart Strachan t/a Strachan Haulage, the Upper Tribunal confirmed the relevance of deterrent action: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. I determined that deterrent action is required in this case, for those very reasons. The operator’s licence was therefore curtailed to one vehicle, AE61 AED, with two trailers, from 23:45 tonight. The operator has undertaken to return the operator’s licence disc to my office, within 7 days.

Richard Turfitt

Traffic Commissioner

20/10/20