Decision

Decision for MDC Logistics Limited

Published 18 November 2024

0.1 SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 28 OCTOBER 2024

3. OK2018127 MDC LOGISTICS LIMITED

4. Background

MDC Logistics holds a standard international licence granted on the 17 January 2019 authorising six vehicles and three trailers. The directors of the company shown on Companies House records are Constantin Croitoru and Florin-Vasile Croitoru (appointed 15 January 2024). The former transport manager is Flaviu-Vlad Voivod (appointed 18 September 2023, resigned 16 January 2024).

A warning letter was issued on 6 September 2021 in respect of a maintenance inspection which was carried out on 26 July 2021 and found to be unsatisfactory on several grounds including  the issue of an ‘S’ marked prohibition on 18 June 2021.

On the 16 June 2022 the company and its transport manager, Michael Kelly, were called to a public inquiry due to an unsatisfactory maintenance investigation on 31 January 2022 . Failings included, PMI intervals exceeded, DDRs not always signed off as rectified, no evidence of training provided for drivers on load security and the issue of a further ‘S’ marked prohibition. The Traffic Commissioner curtailed the licence to 4 vehicles and 3 trailers from 20 June 2022 until 10 July 2022. At the inquiry the Traffic Commissioner accepted assurances for roller brake tests at every PMI, the ongoing support of RHN and an independent audit in 6 months. The Commissioner warned the company that delivery of these assurances would be considered at any future DVSA or OTC intervention. A new transport manager was to be appointed.

The company made an application on 11 December 2022, OH2061851, applying for 2 vehicles and 3 trailers at an operating centre at Unit 5, Polygon Business Centre, Blackthorne Road, Colnbrook, Slough, SL3 0QT. Queries were raised in relation to the application and it was noted that the operator had failed to comply with the undertaking accepted at the public inquiry on 16 June 2022 to have an independent audit within six months. The Traffic Commissioner decided to call the operator to a public inquiry when the new application would also be considered.

On the 11 April 2023 at the public inquiry the Traffic Commissioner accepted the resignation of the transport manager Clifford Morgan. Ongoing compliance failings were noted in that audit that was provided after the deadline date and produced by an auditor who was not independent of the operator. The licence was suspended from 18 June 2023 until 23 July 2023. The Traffic Commissioner granted a period of grace to 23 July 2023 to nominate a transport manager and directed that if no transport manager was approved, the suspension would remain in place until lifted by a Traffic Commissioner. The Traffic Commissioner stepped back from revocation but stated that the conduct over the last year has been a serious breach of trust and warned that this must not happen again. At the inquiry the Traffic Commissioner noted that there were several large payments made (for subcontracted work) to AFC Transport Ltd, a company of which Mr Croitoru’s brother Florin is the sole director. AFC Transport Limited, had applied for a Licence OH2064455 (Granted on 12 September 2023). The suspension of the licence for MDC Logistics remained in place until Flaviu-Vlad Voivod was accepted by the Traffic Commissioner as transport manager on 18 September 2023.

On 5 September 2023 DVSA stopped vehicle RX13 WKP the driver was George-Catalin AMBROSA, who originally stated he was a self employed driver for MDC Logistics Ltd. Mr Ambrosa then told the examiner that he had made a mistake and was working for Swift Trans. He said he had previously worked for MDC who he said were an agency. The driver provided a CPC driver card and a Romanian driving licence. Checks found that Mr Ambrosa was disqualified from driving at Willesden Magistrates Court on 2 June 2023 (for totting) until 1st of December 2023. A download of the vehicle unit found that that the vehicle was not locked into the company card of MDC Logistics Ltd and the last download was carried out on 10 June 2023. Two driver cards in the name of Mr Ambrosa had been used in the vehicle since 2 June 2023. The examiner contacted the vehicle hire company who confirmed the vehicle was on hire to MDC Logistics Ltd. The examiner received copies of invoices from the hire company to MDC Logistics Ltd for six vehicles for dates which were within the period when the licence was suspended. The examiner points out that the insurance policy of MDC Logistics Ltd would only be valid when the vehicles are operated under a valid operating licence and that the licence was suspended until 18 September 2023.

Enquiries identified convictions incurred at West Sussex Magistrates Court on the 17 May 2024 by director Constantion Criotoru for the offences of excess speed in HGV, leaving HGV with engine running, leaving HGV in a dangerous position and failure to wear seatbelt .

 A DVSA traffic examiner carried out a follow up investigation which highlighted additional  concerns in relation to the use of an  unauthorised operating centre.  Analysis of drivers’ hours records identified a total of 127 offences committed by 16 drivers in the period between the 1 June 2023 and 30 November 2023.  When the director Constantin Croitoru was interviewed he was accompanied by a solicitor and made no comment to all questions asked by the examiner.

Taking into account the background and the outcome of the DVSA investigation a decision was made to call to the operator to a public inquiry and to hold a concurrent hearing with eleven of the drivers who had committed infringements during the relevant period. An application was made to surrender the licence on the 11 January 2024 but this was rejected. It was also noted that Florin-Vasile Croitoru had been added as a director and person with significant control at Companies House on the 15 January 2024.

5. The Public Inquiry

Director Constantin Croitoru attended the inquiry and was unrepresented He also attended in his capacity as a driver for a conduct hearing together with nine other drivers and the former transport manager Flavin-Vlad Voivod. Traffic Examiner Lordan attended remotely via Microsoft Teams.

I heard from each of the drivers before considering issues related to the operator and will issue the decisions in relation to the drivers in separate document but will set out below how the failings of the drivers reflect on the repute of the operator.

 Driver Ambrosa had driven on several occasions whilst disqualified, had used more than one driver’s tachograph during that period and was in possession of a Romanian driving licence which was produced when he was stopped. In addition nine infringements were identified from the record analysed, It was accepted by Mr Croitoru that a check should have been made on Mr Ambrosa’s UK driving licence record and this would have revealed that he was disqualified. The fact that he was disqualified invalidated the insurance cover for him. The mischief that resulted from Mr Ambrosa’s use of more than one driver’s card and whether he obtained a Romanian licence as an exchange for a UK licence were disputed by Mr Croitoru. Mr Ambrosa said that he was unaware he was disqualified as this had happened in his absence and he had moved address.

In relation to the remaining drivers including Mr Croitoru it was accepted that the Working Time Directive on the maximum number of hours for nighttime working had not been communicated to drivers. It was also stated by the drivers that they had not been made aware of infringements by the operator prior to the appointment of Mr Voivad.
In relation to the allegation that vehicles had been operated during the  period of suspension Mr Croitru said that he had not been aware initially that the suspension continued beyond the initial period even though a transport manager had not been appointed. He only became aware when he spoke with his legal representative. He said that vehicles had been operated  by Swift Trans although he admitted that he had paid some of the drivers, had entered into the hire agreements for the vehicles and had paid for insurance which was valid for use by  MDC rather than Swift Trans.

Mr Croitoru disputed that vehicles had been used during the period of the initial suspension and Traffic Examiner Lordan said that the mileage recorded for vehicles showed that this was the case and the pattern of use matched what had taken place prior to the suspension.

Mr Croitoru said that he had been unwell during the whole time that the problems had arisen and had been travelling for treatment so had been unable to take care of the transport side of the business. Problems had only arisen since he first had surgery. The vehicles had now been sold and the company was not involved in transport. Two of the vehicles had ben sold to his brother and he couldn’t explain why a trailer with a cherished number place had been picked up on an ANPR camera in October 2024 or why the vehicles sold to his brother were not on the licence held by his company.

Mr Voivod said that he had checked systems when he started with the company in September 2023 and he found there were some in place. He believed that a woman in the office had been printing off infringement reports and thought the drivers were made aware of them. He had commenced formalising the process, had organised an audit which had been sent to the Traffic Commissioner and had planned other improvements which did not progress because a decision was taken for him to resign and for the licence to be surrendered.

6. Findings and Decision

There is no doubt in this case that there have been breaches of Sections 26 (1) (a), (c) (i), (c) (iii) (e) , (f) and (h) of the Goods Vehicles Act, 1995. The operator continued to operate without an authorised operating centre, there was a culture whereby serious drivers’ hours’ offences were committed and no action was taken and there was minimal oversight of transport operations in 2023 before the appointment of Mr Voivod.  The driver who committed the offences dealt with at the Magistrates’ Court was the director Mr Croitoru and in addition he committed serious infringements.

 The operator failed to make proper checks on the driving licence record of driver Ambrosa which would have shown that he was disqualified and therefore insurance cover was invalid. When the suspension of licence was ordered by the Traffic Commissioner the notification makes it clear that the suspension would continue until a new transport manager was appointed. I do not accept that Mr Croitoru failed to understand this. I find that it is more likely than not that he continued to operate despite the suspension and then set up a sham agreement with another operator Swift Trans in an attempt to circumvent the suspension. The fact that the hire of vehicles was directly to the operator, the insurance was only valid when the operator was using the vehicles and he paid the drivers reinforce the finding that the arrangement was a sham. Taking all these factors together I find that the operator no longer meets the requirement to have a stable establishment, good repute, financial standing or a designated transport manager.

I am unable to find any positive features in this case. The operator has been given opportunities in the past to improve and has failed to do so. The seriousness of the failings and the deliberate contravention of the suspension order make this a case of severe seriousness. Even though the operator wishes to surrender the licence I am obliged to ask myself the question set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words can the operator be trusted going forward? My answer to this question is an unequivocal negative. There is no doubt in my mind that the operator deserves to be put out of business and to be kept away from transport operations for a significant period of time. I also find that a disqualification is necessary in relation to Constatin Croitoru who was a director throughout the period in question. .

I therefore order the revocation of this licence with immediate effect. I also order that the operator MDC Logistics Limited is disqualified for a period of five years from holding or obtaining an operator’s licence. I make this order taking into account the fact that the company is still active and needs to be prevented from re-entering the transport business for a significant period.

I also order a period of disqualification for five years in relation to Constatin Croitoru because I find that he needs to be kept away from the transport industry for the reasons stated earlier. I believe that if he was allowed to operate again the past problems would be likely to return.  Mr Croitoru’s disqualification applies to him as an individual, as a partner in a partnership, or a director of a company. This is a bad case and I believe this period is proportionate taking all the factors into account.
I have considered the position of former transport manager Flavin-Vlad Voivod  and have decided that no further action is required in relation to his repute. He was transport manager on this licence for just under four months and had started to make progress against a background of prolonged non compliance. I do not therefore considerable it necessary or proportionate to take any regulatory action against him.

 I note the comments made by the Traffic Commissioner concerning payments from this operator to the company AFC Transport Ltd and the “sale” and use of vehicles by that company that are still authorised to this operator. In light of this and the family links between the directors I request a DVSA investigation is caried out in relation to the compliance standards of that operator.

John Baker

Deputy Traffic Commissioner

2 November 2024