Decision

Decision for MOGP Ltd (OF2015547) and Marcin Osekowski, Transport Manager

Published 14 June 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. MOGP LTD – OF2015547 AND

2. MARCIN OSEKOWSKI – TRANSPORT MANAGER

3. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

4. Background

MOGP Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 3 vehicles and 3 trailers. The Directors are Marcin Osekowski and Maciej Mrozinski (appointed in November 2018 but only added to the record on 18 November 2020). Mr Mrozinski described himself as the Operations Director and stated that both Directors had attempted to add him to the record but confirmed that neither had succeeded. Mr Osekowski is also the Transport Manager and is said to have joined 6 weeks prior to grant.

There is one Operating Centre: Red Lion, Weedon Road, Upper Heyford, Northampton NN7 4DE. In evidence Mr Mrozinski suggested that its trailers are now parked in Liverpool as the operator has only operated Amazon owned trailers in the last ten months. That change was not notified. There are two declared contractors showing on the licensing record: Greg Truck Services Ltd and PJP Services (slightly different names were given in the initial representations), undertaking Preventative Maintenance Inspections of vehicles and trailers at 8-weekly intervals. The specified vehicles were PX64 JYB, VU63 KUT and DG14 YUF, now just PX64 JYB and VU63 KUT.

The operator lodged a variation application on 2 June 2020 seeking to increase authority to 10 vehicles and 10 trailers. Discretion was exercised in favour of the operator and, taking account of a bounce back loan, the licence was permitted to continue and a time-limited interim was granted but the application was not pursued beyond 20 February 2021. In evidence, I was assured that this was not a requirement of the Amazon relationship but if the operator had been permitted to increase authority to that level it would have allowed access to MAN vehicles, at a preferential rate, through the Amazon scheme.

Mr Osekowski was also named on an application (OF2037878) by DM Log Limited, but this was subsequently withdrawn in January 2021. I note this as it may lend support to his evidence regarding his presence in the United Kingdom.

5. Hearing

The Public Inquiry was originally listed for 15 April 2021 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. Mr Maciej Mronzinski, Director, appeared. He was represented on that occasion by Jaclin Bastin of CE Transport Law. Written representations indicated that Mr Osekowski was not represented by CE Transport Law. I was unclear who had the authority of the Board to represent the interests of the operator. After some discussion, I granted Ms Bastin’s application for a short adjournment to advise her client. Roman Vater was present to translate (the language being Polish).

The case was relisted for 10 May 2021. Ms Laura Newton of Smith Bowyer Clarke was then instructed to represent all the parties and lodged written representations in advance. The attendees were as follows: Maciej Mrozinski, Marcin Osekowksi and Roman Vater, to translate. I allowed extra time at the start of the hearing but was assured that there was no conflict in the positions of the two Directors.

6. Issues

The operator was put on notice of the seriousness of its position in correspondence dated 9 November 2020 (page 94). The operator indicated that it did not wish to pursue the application and requested a hearing. The Public Inquiry was called for me to consider whether there were grounds for me 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)(b) – conditions on the licence;

• 26(1)(e) – statement that vehicles (including trailers) would be inspected at 8 weekly intervals;

• 26(1)(f) – undertakings have not been honoured in respect of vehicles being fit and serviceable, to have an effective written driver defect reporting systems, with full maintenance records to cover a 15 month period;

• 26(1)(h) – material change;

• 27(1)(a) – stable establishment, good repute, appropriate financial standing and professional competence - section 27(1)(b) – transport manager repute;

• 28 – disqualification.

The operator was previously directed to lodge evidence in support by 1 April 2021 and in particular, up to date financial statements and maintenance documentation for the last 12 months. Original financial evidence was received by OTC on 13 April 2021 and found to be satisfactory. The operator had availed itself of a bounce back loan. I accept that the type of work undertaken might justify the proposed turnover. Ms Newton’s representations also referred to an overdraft facility, which was subsequently confirmed from the records.

On 15 April 2021, I made further directions permitting additional evidence to be lodged by 10 am on 7 May 2021, by which time I was to receive confirmation of who was authorised by the Board of Directors to speak on behalf of the operator. I refer, above. Further evidence was supplied in the afternoon after the hearing.

7. Summary of Evidence

In response to the increase in authority which had been sought by the operator, the DVSA carried out a desk-based assessment. This quickly identified that, whilst Mr Mrozinski appeared on the Companies House register from 1 November 2018, his appointment had not been notified to the Office of The Traffic Commissioner’s online system.

The desk-based assessment identified the following shortcomings, as summarised in the Case Summary:

• No evidence of defects reported or system to address non-compliance, proper assessment not possible due to lack of evidence supplied;

• Vehicle Examiner unable to assess adherence to stated intervals, defect rectification and brake tests, due to lack of evidence;

• No evidence provided of training, audit or continuous professional development.

Ms Newton’s representations claim that the documents were presented to the Vehicle Examiner and that this was not an attempt to be uncooperative. According to DVSA, the operator responded to the shortcomings presented by referring to an online Driver Defect Reporting system, which had not been made accessible to the Vehicle Examiner. In Ms Newton’s representations I am told that the operator is investigating how to amend the software but there is no solution yet. I am told that the system allows for driver checks to be timed, defects can be photographed, and an alert can be sent to the operator. The software requires rectification of any reported defect. As the system does not allow for disclosure of defect records, it is proposed to revert to defect books.

Concerning maintenance, reference was made to the provision of full PMI inspection sheets and brake tests. A wheel on/off policy was outlined. It was claimed that the forward planning was not managed by the operator but by its customer, Amazon. The written representations confirm that as the operator’s only customer for the last two years. The work is said to be managed by the Amazon ‘load board’ with the operator having a unique username and password. The operator then accesses the load board and books itself for all the jobs it feels it can fulfil. Mr Mrozinski explained the initial difficulties when changing devices but that has now been overcome. There was no reference to the involvement of the Transport Manager. The operator has access to an Amazon app called Amazon Relay so that when a trailer is collected and delivered, it can then be cleared from the load board.

The Vehicle Examiner noted the operator’s response and the absence of detailed explanations of any new systems or improvement to existing systems to address the issues observed, or to show how they would be applied and managed moving forward.

In response, Mr Mrozinski (page 97) proposed to commission an audit, having already recruited Ridgeway Training and having received some recommendations. Tellingly, an audit was never produced to the Examiner or at either hearing. The assurances communicated to the Examiner were not sufficient to allay concerns at the time. The only completed driver defect report seen was a Nil report. Only half of a preventative maintenance inspection form was produced to the Examiner, with no evidence of forward planning, audit, training and follow ups to adverse encounters. A full PMI inspection sheet and brake test was subsequently provided. A wheel on/off policy was also briefly outlined. Reference was also made to vulnerable road user training, which took place in November 2019. Further training was due in April 2020 and was apparently cancelled due to Covid.

Concerns arose as to the extent that the operator was able to manage its own compliance, with references to its customer, Amazon, managing the work, (and the explanation is somewhat confusing). The operator’s Vehicle Check Report refers to vehicles PX64 JYB, VU63 KUT, DG14 YUF between 2 February 2020 and 24 March 2021 but no reference to any trailer. Financial evidence suggests that the majority of income is obtained from traction work. I was referred to various extracts from ‘Amazon Transportation Services’ policies. Its Carrier Manual dated October 2020 contains instructions on the operation of vehicles and trailers, the behaviour of drivers, but nothing on the maintenance of trailers.

In his evidence Mr Mrozinski told me that there was no written contract with Amazon. The operator has a user name and PIN to log-on to the Amazon on-line presence, including the weekly, but optional webinars. The Amazon documentation produced clearly indicates that there is some form of agreement, with standards to be applied. It was suggested that the operator was akin to a preferred contractor who, once admitted to a list, could decide whether to accept work. Nevertheless, Mr Mrozinski described penalties which could be imposed for instance if drivers failed to follow procedures, as occurred 1 to 2 years ago, or the operator was late in clearing a job. The majority of the work has been within this country with only two offers of EU work within the last 12 months. Mr Mrozinski indicated that this suited the operator as EU tyre standards were more rigorously enforced, in his view.

The earlier written representations submitted on behalf of Mr Mrozinski confirmed that PMIs are undertaken every 8 weeks and recorded on the Velocity system with access provided for both Directors. I was told in initial representations that Mr Mrozinski had accepted that there is not enough detail recorded on the PMI forms. Ms Newton’s representations assert that the PMIs are checked when they are returned with the vehicle. The user details from the Velocity system appear to indicate that it is Mr Mrozinski who accesses the records. Each driver also has the Velocity app on his mobile telephone. Ms Newton confirms that the Amazon Relay app is used as a record of trailer checks but the operator is prevented from retaining a record. There is no facility to sign a report but each has a log-in and PIN.

I referred to the maintenance records produced in advance of the hearing. My dip sampling revealed the following: PX64 JYB –

• 27 February 2021 – inspection but no brake test, refers to reverse sensor but no rectification and no driver defect reports produced.

• 11 January 2021 – roller brake assessment for annual test.

• 2 January 2021– inspection but no brake test, refers to break in spray suppression but no rectification and no driver defect reports produced.

• 7 November 2020 – inspection but no brake test, refers to cracked mirror cover but no rectification and no driver defect reports produced.

• 12 September 2020 – 12 weeks and 2 days since the last inspection, no brake test, refers to driver mirror electric steering, but no rectification and no driver defect reports produced.

• 18 June 2020– inspection but no brake test, refers to exhaust system warning but no rectification and no driver defect reports produced.

• 16 May 2020 – inspection but no brake test.

VU63 KUT –

• 27 February 2021 – inspection but no brake test, refers to battery cover clip but no rectification and no driver defect reports produced.

• 22 January 2021 – roller brake assessment relying on forward wheel allowance at 44%, 25% and 20%, with annual test on 8 February 2021.

• 2 January 2021 – inspection but no brake test.

• 7 November 2020 – inspection but no brake test, refers to wipers in poor condition but no rectification and no driver defect reports produced.

• 14 September 2020 – 12 weeks and 2 days since the last inspection, no brake test.

• 20 June 2020 – inspection but no brake test, refers to need to replace seat belts but no rectification and no driver defect reports produced.

• 25 April 2020 – inspection but no brake test, refers to front bulb requiring attention, but no rectification and no driver defect reports produced.

This confirmed the Examiner’s findings and that, even at the date of the first hearing there was no evidence of defects being reported or systems to address non-compliance. There was one occasion of the preventative maintenance interval having been exceeded, with no evidence of brake tests at PMI, or driver defect reporting in respect of vehicles and trailers. The brake tests I noted were far in excess of the 7 days from PMI advocated by the Guide to Maintaining Roadworthiness.

I refer to the explicit advice contained in the Guide to Maintaining Roadworthiness. The current edition dates to December 2020 but this advice was in circulation in the previous edition dating to November 2018:

5.3 Braking performance assessment

As per the annual test, every safety inspection must assess the braking performance of the vehicle or trailer. It is strongly advised that a calibrated roller brake tester (RBT) is used at each safety inspection to measure individual brake performance and overall braking efficiencies for the vehicle or trailer to the annual test standards…. . In the case of trailers, an Electronic Braking Performance Monitoring System (EBPMS) may be used as a means to assess trailer-braking performance and provide a brake performance value while the vehicle is in service (for further details see EBPMS section).

Brake testing should be undertaken with the vehicle or trailer in a laden condition in order to achieve the most meaningful results; however, due to basic design limitations or restriction caused by the type of cargo normally carried, this is sometimes not possible. Further guidance regarding the use of RBT’s can be found at this link: www.gov.uk/government/publications/the-heavy-vehicle-braketest- best-practice-guide

A printout of the brake efficiency test from either the RBT or decelerometer should be attached to the safety inspection record. If the brake test equipment cannot produce a printout, efficiency results must be recorded by the inspector on the safety inspection report.

Ms Newton confirms that the nominated contractor does not have roller brake testing facilities. The operator has only now been prompted to direct that full brake performance tests take place quarterly and at annual test, with decelorometer tests on tractor units in-between. I am unclear how trailers have been tested. In an email from Ms Newton dated 7 May 2020, I was told that throughout the relevant period the operation involved third-party trailers and walk round checks were recorded using an Amazon app, so there is no record, which the operator can access.

I was referred to the infringement and missing mileage reports for the last 3 months for Drivers Miaslaw Slawomir and Jarzynka Radoslaw. They appeared to have been trained by Amazon on its Carrier Manual and operating procedures. Given the concerns raised about driver reporting I was interested to note the original representations, which described the two drivers as sub-contractors. I was unclear how that might be consistent with the principles outlined by the Upper Tribunal in 2019/54 Bridgestep Ltd & Tom Bridge where the Tribunal commented that “Unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. The UT went on to describe the vast majority of new operators making the right decision to employ their drivers, paying national insurance, pension contributions, holiday and sickness entitlement. The consequence in that case was that the company and Transport Manager felt unable to give any instruction to drivers whether it be in relation to route planning or otherwise and as a consequence, were unable to have continuous and effective management of the transport operation. In short, the company and transport manager had abdicated their responsibilities, and along with their failure to rectify the position in the five months leading up to the public inquiry meant that both Appellants rightly lost their good repute.

Ms Newton’s representations suggest that two drivers had been recruited within the last two years and had the benefit of some induction training, including on walk round checks but not retorquing, which is only now being considered. However, in evidence Mr Mrozinski stated that the two drivers had avoided the tax implications of having employees. The operator relied on the training they had been given by their previous employer. The only training provided by this operator related to vulnerable road users. The drivers are described by Ms Newton as highly skilled, which I consider against the records, above. Their next DCPC modules will apparently involve drivers’ hours and defect reporting.

For obvious reasons, I was interested to hear an explanation from the Transport Manager and Director, Mr Osekowski. The original written representations confirmed that he has been absent for the last 12 months, apparently due to the pandemic. In those signed representations, Mr Mrozinski accepted that he should have notified me of that absence. At the time of writing the original representations it appeared that the Transport Manager was still not in the jurisdiction and there had been no application for a Period of Grace. The original representations described that as an ‘oversight’. In evidence Mr Mrozinski attempted to resile from that position. He told me that he and Mr Osekowski work at their respective homes during the week, while the vehicles are away. The Transport Manager is a 20-minute drive from the Operating Centre. He told me that they speak all the time and gave an example of an issue with the load board on the day before the hearing. The Velocity app provides them with email notifications for instance about driver duties or vehicle speeds. He described the Transport Manager as working 24/7. However, during the pandemic restrictions the Directors arranged to meet only occasionally, in the interests of Mr Mrozinski’s health.

Ms Newton’s representations describe the Transport Manager as having had access to the Velocity and Amazon apps, allowing him to work remotely, but completely contradict what was put forward on behalf of Mr Mrozinski and now claim that Mr Osekowski has been in the UK throughout, bar a period of two weeks. In evidence Mr Mrozinski stated that the Transport Manager was at home all the time during the previous 12 months. He thought when his previous solicitor referred to ‘at home’, she meant Poland. I sought to understand why he had signed previous representations which in two different sections referred explicitly to the absence of Mr Osekowski. He told me he had asked for the representations to be changed. After the hearing I was forwarded an email, purporting to be sent to the previous solicitor on 9 April 2021, i.e. prior to the previous hearing. The email attaches a version of those representations where he has made corrections in red, including at paragraph 34 of the document which refers to Mr Osekowski having been absent for 12 months. In the body of the covering email he states “there is a misunderstanding in regarding Marcion’s absence as he was in UK during the pandemic however recently he went back to Poland for holiday.”

Mr Mrozinski was unable to answer questions about first use checks. He had no prior experience of the Velocity app; interestingly it was Mr Mrozinski who had used a YouTube video to explain how it worked. He told me that both Directors have access to the data recorded by the drivers. However, photographs of any defect are sent via a WhatsApp group. He described both Directors checking the systems a few times a day. He thought that there was a facility on Velocity to record rectification work, but he had only discovered this after being called to this hearing and still does not know how to use it. It is now proposed to use carbonated driver defect report books, which will be photographed and sent via the WhatsApp facility. Mr Mrozinski described ‘huge problems’ with Velocity when drivers had recorded everything as green, so there is no record to check against when driver detectable defects are identified at PMI. I did not find that to be a very satisfactory explanation for not raising them with the drivers, but apparently the Transport Manager speaks to drivers 24/7. The preferred contractor, PJP Services, does not have a rolling road to test brakes. Instead, Mr Mrozinski referred to the use of a contractor in Liverpool who had been used to carry out the limited number of rolling road brake tests on the tractor unit. Mr Mrozinski referred to feeder journeys or use of the train but I could find no record of his driving in the papers supplied to me. Mr Osekowski suggested that most probably, his card had not been downloaded. Mr Mrozinski claimed that JP Services had been utilising a decelorometer at every PMI, but there was no record of this on the PMIs or attached. He then told me that he had thrown away the decelorometer print-outs. It was clear to me that he did not know what they were. He described wheel-off arrangements, but with no retorque, which I found concerning.

Mr Mrozinski had told me that the PMIs are shared using the same WhatsApp group but it was clear that no photographs were taken of the decelorometer print-outs. I was unclear how Mr Osekowki had allowed that situation to develop. He declined to provide me with any explanation. He appeared to take a similar approach to preparing for the first hearing, leaving it to Mr Mrozinski to liaise with the solicitor. Even when collating the documents, he had failed to notice the absence of brake testing. He indicated his satisfaction at the tractor units receiving roller brake tests every six months. He told me that he was in contact with drivers, but nothing was written down.

He too was adamant about his presence in the United Kingdom during the last year. His evidence contradicted Mr Mrozinski, in that he claimed to have visited Poland to obtain a vaccine dose because he preferred a different source to that currently available in the United Kingdom, but that in itself suggests that he is still resident in Poland. The current advice is that a person can only travel internationally from England where you have a reasonable excuse to leave the UK, such as work. International holidays are not permitted. To return to the United Kingdom, arrivals are required to test and to take a further coronavirus test on day 2 and day 8 of quarantining. Mr Osekowski confirmed that he was in Poland from 4 to 13 April 2021, having received the call up letter. When he attended the hearing on 15 April 2021, he should have been quarantining. He failed to declare this and ignored the strict access controls to the tribunal facility in Cambridge and the risk to other attendees.

I asked Mr Osekowski how he had overseen the inspection of trailers. He confirmed he had not seen any trailer records, “as we didn’t use our own trailers”. He could not tell me what the Amazon manual/contract said about accessing trailer records “as they are not in our control”. Accordingly, he could not say when any of the trailers operated had been inspected or brake tested. I asked him about the absence of driver defect reports, to which he explained “I trust them”. I have compared his approach to the management of trailers with the DVSA Guide and the section on traction only operations.

3.3 Traction services and third party trailers

Operators can provide a traction-only service to customers who wish to own their own trailers for branding and loading purposes but do not wish to operate vehicles to pull them. It is also common practice for an operator who may own trailers but is also contracted to tow third party trailers not owned or maintained by them.

Ensuring third party trailer roadworthiness can be problematic for the traction service operator. Usually for short-term use the trailer owner would be responsible for the routine maintenance of the trailer, including the safety inspection (SI). Under these circumstances, traction operators are reliant on the trailer owner to correctly carry out their own safety inspections within their stated frequency and complete any necessary repairs.

The traction operator is responsible for ensuring a thorough walkaround check of the tractor/trailer combination is carried out to establish it is safe prior to use. If defects are identified during the walkaround check, these should be rectified prior to use.

Traction operators would be expected to work with the trailer owners to ensure any trailers operated fall within the owner’s agreed SI frequency and that they are roadworthy. It is best practice for the trailer owner to provide evidence for the operator that first use checks and safety inspections have been undertaken and demonstrate there are no outstanding defects reported for the trailer. There must also be a robust system in place to ensure defects identified during the walkaround check, or develop during use, are recorded and rectified before the tractor/trailer combination is operated in an unroadworthy condition.

I observed none of the proactivity suggested in this Guide to Maintaining Roadworthiness. Mr Osekowski could not even tell me which records he was entitled to see. He was unable to confirm whether trailers had been inspected in line with the intervals declared against the licence. Even in the management of the tractor units, Mr Osekowski appeared to accept a situation where there was no record of any brake testing bar that undertaken in Liverpool and without a proper record of those journeys. The management of driver defect reporting, even where records were observed but not retained, has been ineffectual. In answer to Ms Newton, Mr Osekowski understood that he might not be fit but felt this would be remedied by attendance at a refresher course. I am told that he was present in the United Kingdom and short of seeking evidence from the border authorities, I must accept the evidence given. However, his presence has not resulted in either effective or continuous management of the transport operation.

8. Determination

I am satisfied that there is sufficient evidence upon which to base adverse findings under section 26(1)(b) – conditions on the licence relating to the maintenance of trailers; 26(1)(e) – on the statement that vehicles (including trailers) would be inspected at 8 weekly intervals; 26(1)(f) – undertakings that vehicles and trailers would be fit and serviceable, to engage an effective written driver defect reporting systems, and to retain full maintenance records for a period of 15 months and to make them available upon request.

The original representations suggested that I might adopt the starting point for a case of MODERATE seriousness based on there being no operator fault/recklessness or negligence with no risk to road safety or unfair advantage. I accept that there is no Public Inquiry history, no S marked prohibitions and that there was cooperation with the investigation. The failure to address the shortcomings even by the date of the Public Inquiry undermines that position and that suggested starting point appears to be wholly unrealistic.

I heard in evidence that the operator currently runs 2 vehicles. I was told that any reduction would place the viability of the operator at serious risk. There is no notice period with Amazon, but there is no other income. I was told that the operator could not survive any intervention for a period of time. The latest representation lodged by Ms Newton accepts that there have been a number of shortcomings but refers to a robust plan to get things right. The representations refer to Transport Manager refresher training within a month, OLAT for the other Director within one month, and a compliance audit within a specified time.

As with most decisions, I start with the question posed by the appellate 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? In answering that question, I must consider the fitness of the Directors and what assurance can be drawn from the involvement of the Transport Manager.

The original representations accepted that the operator lacked the knowledge required to run a compliant transport operation. The initial representations (paragraph 20) referred to check on tyres/wheel nut indicators every weekend by the Transport Manager, but this was described by Mr Mrozinski, whose evidence was far from reassuring. Those same representations indicated that I could rely on the Transport Manager to raise driver detectable defects going forwards. For obvious reasons I retain real doubts about a Transport Manager who has allowed circumstances to develop, which have led to the adverse findings identified above.

I am reminded of the decision of the Upper Tribunal in 2013/082 Arnold Transport Ltd. It explains that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion. The decision makes the continuing nature of the obligations, crystal clear. I quote: It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.

Ms Newton’s representations confirm the sole customer as Amazon, but repeat the suggestion made by Mr Mrozinski, that, if the licence is allowed to continue, the agreement with Amazon will be amended to allow the operator to use its own trailers. In his evidence he suggested there was no agreement. This does not appear to be a realistic proposition and amount to an untested promise. There has been no confirmation from its customer Amazon, despite is being discussed at one of the on-line Friday afternoon meetings. If agreed, this will result in a reduction of 5-6% in the rates paid.

In making its variation application, nothing prompted the operator to undertake a realistic assessment of its compliance or the abilities of the Transport Manager. Even the promised audit after the DVSA intervention, failed to materialise, so I can place limited weight on an offer to undertake one now. I find I can attach limited weight to Mr Mrozinski’s assurances when he allowed an erroneous statement to be put before me regarding the involvement of Mr Osekowski. I am referred to an email where he says he attempted to correct that statement, but he was content to let that statement stand until Ms Newton submitted her representations. The Tribunal decision in 2000/041 Hi-Kube Transport Ltd laid down a clear principle that Directors should clearly check the accuracy of documentation lodged with the OTC. He also knew that Mr Osekowski had just returned from Poland and was present on 15 April when Mr Osekowski should have self-quarantined.

Mr Mrozinski assured me that trailers could be added to the operator’s Velocity app, begging the question, why the operator and Mr Osekowski had not sought to do so earlier. If I were to view this proposed change in trailer operations as more than an untested promise, it would inevitably raise questions about the basis of the bounce back loan, which was obtained on the basis of a different turnover. That would then raise questions about financial standing, as a continuing requirement. This is fully explained by the Tribunal in his decision in 2012/017 NCF (Leicester) Ltd.

The initial representations lodged on behalf of Mr Mrozinski suggested that Mr Osekowski might attend refresher training or step down. However, Ms Newton now suggests that Mr Osekowski has the required knowledge, but with a suggestion that refresher training might be required. That assessment does not accord with my own. The representations referring to the potential involvement of a compliance expert appear to confirm Mr Osekowski’s inability to meet the statutory duty. Ms Newton reminded me of the language issues involved, but that does not lessen the legal requirement for effectiveness and continuous management. I noted his refusal to provide answers to some of my questions. Nor can I attribute my findings to the challenges of the pandemic. I was told in evidence that he had attended the Operating Centre regularly and was in contact with the drivers. Sadly, that did not result in compliance systems which discharged even the basic requirements of the operator’s licence. Even where there was documentation, the checks could not have been more than cursory and that has continued to the date of the hearing. This goes beyond mere knowledge, as he has demonstrated a reckless approach far from the requirements of a reputable Transport Manager. The only proportionate finding is that Mr Osekowski has lost his repute as a Transport Manager. That finding under section 27(1)(b) necessitates a finding that the operator no longer enjoys professional competence, pursuant to section 27(1)(a) and 26(1)(h). Mr Osekowski will need to obtain a new Certificate of Professional Competence in order to be considered for appointment as a Transport Manager in this jurisdiction and will then have to persuade a Traffic Commissioner that he should be accepted on to a new licence.

The operator agreed to the licence requirements at the time of application. It should have had a Transport Manager in place to exercise effective and continuous management, so I attach little weight to the earlier assertion that it is relatively new to compliance and still finding its way since grant in September 2018. Ms Newton very properly accepted that it was difficult to separate the trust which could be placed in the Transport Manager from that of the operator. He is one half of the controlling mind of the company. In handing over part of the operator licence requirements to a customer the Directors have abused the trust placed in them. As the Tribunal identified in 2006/277 Fenlon, trust is one of the foundation stones of operator licensing. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer. The above circumstances have had a very serious impact on the trust which I can place in this operator. The conduct such that the operator must be removed from the industry (as per 2002/217 Bryan Haulage). I make the resultant findings under section 27(1)(a) and 26(1)(h).

The revocation will take effect from 23:45 on 2 June 2021, to allow for a safe run down.

Ms Newton addressed me on any potential disqualification. As the decision in 2019/025 John Stuart Strachan t/a Strachan Haulage, has reminded us: “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”. This is not a case where the operator or Directors are equipped to simply re-enter the industry. I have found that they cannot be trusted to comply with the regulatory regime. A period is required to reflect on the many errors which became evident in its approach to operation and indeed the Public Inquiry. The Statutory Directions in Document No. 10 explain that each case must be looked at on its merits, but also suggest various starting points. I can distinguish this matter from the more serious cases outlined there. I have attempted to identify and comment on those positive elements, which I could identify. As explained above, I could attribute limited weight to mere promises, but I do record that this is the first Public Inquiry. The operator is therefore disqualified from holding or obtaining an operator’s licence in Great Britain for a period of 24 months, pursuant to section 28(1).

I refer to the Tribunal’s approach in 2015/078 Black Velvet Travel Ltd, Western Greyhound Ltd and Michael John Bishop, and determine that Marcin Osekowski and Maciej Mrozinski are disqualified from holding, obtaining or being involved in the management, administration or control of the transport operations of an entity that holds an operator’s licence in Great Britain for a period of 24 months, pursuant to section 28(4).

Richard Turfitt

Traffic Commissioner

12 May 2021