Decision

Decision for MTM SKIP HIRE LIMITED and PREZEMYSLAW ZALECKI

Published 25 February 2022

0.1 SOUTHEAST AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

1.1 PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 24 JANUARY 2022

2. OK2023169 MTM SKIP HIRE LIMITED

3. DISQUALFICATION OF PREZEMYSLAW ZALECKI

4. Background

On the 7 January 2021 a public inquiry was held in relation to MBBStrans Limited and MTM Skip Hire Limited. Prezemyslaw Zalecki was the sole director of both companies. Following the public inquiry the Traffic Commissioner revoked the licence held by MBBStrans Limited, revoked the licence held by MTM Skip Hire Limited, ordered the loss of repute and indefinite disqualification in respect of Michael Filipek the transport manager for MBBStrans Limited, revoked the licence in relation to MTM Skip Hire Limited and disqualified MBBS and Mr Zalecki for three years from holding or obtaining an operators licence or being engaged in the management, administration or control of any entity that holds or obtains such a licence.

An appeal was lodged against the decision of the Traffic Commissioner and the Upper Tribunal issued their decision on the 14 October 2021. The appeal was partially allowed in that the decision to disqualify Mr Zalecki was remitted back to Traffic Commissioner together with the decision to revoke the licence held by MTM Skip Hire Limited. The grounds for the remittal of the decision on disqualification are found at paragraph 38 of the decision where it is stated that the “TC fell into error in imposing a disqualification without warning that that possibility was in her mind and without inviting submissions on the point”. The grounds for remitting the decision in relation to MTM Skip Hire Limited are found at paragraph 40 where it is said “the precise basis for the decision to revoke MTM’s licence is unclear”. The Tribunal acknowledged that the TC referred to Section 13B of the 1995 Act and the requirement for fitness but did not state which of the sub sections of that section were applicable to the case.

The re-hearing was listed for the 24 January 2022 and a bundle of evidence was sent to Mr Zalecki and his representatives in advance. The bundle included the transcript of the original hearing together with the documentation presented for that hearing. In accordance with the guidance on re-hearings given in Stuart McAuliffe (2015) UKUT 0473 a letter was sent to Mr Zalecki’s representatives on the 29 November 2021 indicating what documentation would be included in the bundle and stating that any new evidence would be limited to the issues subject to reconsideration.

Ms Zalecki attended the hearing virtually and was represented by Ms Evans. Ms Evans had helpfully provided full written statements and a chronology in advance of the hearing.

5. EVIDENCE

In relation to MTM Skip Hire Limited Mr Zalecki stated in his written evidence that he wished to surrender this licence and that no vehicles had been operated on this licence since he became a director. The company has been dormant since September 2020. Ms Evans submitted that a surrender of the licence was appropriate in all the circumstances.

In relation to disqualification Ms Evans said that I should only make an order if it was necessary to achieve the purposes of the legislation namely the protection of the public and fairness to other operators. In her submission an order was not necessary. Mr Zalecki had only ever operated one vehicle as an owner driver, apart for an 8-week period when he had broken his leg and used agency drivers. He deeply regretted being untruthful to the Traffic Commissioner at the public inquiry and the process of public inquires and an appeal had been stressful and damaging both financially and personally.

6. Decision on MTM Skip Hire Limited

In considering whether to accept a surrender of the licence for this operator or order a revocation I note that the evidence considered by the Traffic Commissioner centred mainly around the activities of Mr Zalecki as sole director of MBBStrans Limited. However, the consequence of that evidence and the findings of the Commissioner was a loss of repute for that company.

The evidence specific to MTM and Mr Zalecki related to his failure to disclose his negative history on the director’s declaration form (paragraph 15 xii of the TC’s written decision) and a failure to ensure the production of statutory records for the previous director/owner as he was required and expected to do (paragraph xi) The failure to disclose the negative history amounts to making a false statement in relation to a variation of a licence under Section 26(1) (e) of the Goods Vehicles (Licensing of Operators) Act, 1995 and the failure to produce the statutory records is in breach of subsection (f) of that section of the Act. I remind myself that Mr Zalecki is the sole director of the company and therefore his actions can be taken to be the acts of the operator.

Having considered all aspects of the case including the background and the linked cases I have concluded that I should revoke the licence under the provisions contained in Section 26(1) of Act which allows such an order to be made if one or more of the subsections that follow have been breached. It is inappropriate to accept a surrender of a licence which is usually allowed when there is no or a very limited level of culpability on the part of the operator. I have not referred to Section 13B of the Act as I do not think it is necessary to do so having revoked the licence on the grounds stated.

7. Decision on disqualification of Mr Zalecki

Analysis of the Upper Tribunal decision confirms the Traffic Commissioner’s finding that by attempting to mislead her Mr Zalecki had committed a “gross breach of trust”. The lies that he told at the inquiry were part of a finding of dishonesty which included his failure to disclose his negative history on the director declaration form for MTM Skip Hire Limited and to a lesser extent on MMBStrans.

I was asked to acknowledge that correct declarations were made in relation to two further applications for ABC Christmas Trees and Parking London Limited. However, on further investigation it was discovered and agreed that Mr Zalecki’s declaration for ABC Christmas Trees had failed to disclose that previous licences had been curtailed, suspended, or revoked.

Mr Zalecki’s history as an operator is poor and this was part of the Traffic Commissioner’s findings. The licence held by Rubbish Express Limited OK1050130 was called to three separate inquiries because of maintenance failings, illegal use of waste transfer site and a linked conviction. The licence was subject to curtailment, suspension, and eventual revocation in 2014. Licence OK1110042 Rubbish Express Haulage Ltd had links to Mr Zalecki even though the named director was his wife. Once again major maintenance and drivers’ hours failings were found, and the licence was revoked in 2015.

Taking the background together with the outcome of the appeal following the public inquiry conducted in January 2021 I must decide whether I believe it is necessary to order a disqualification in relation to Mr Zalecki. I need to act in accordance with the guidance highlighted by Ms Evans that disqualification is not a step that should be taken routinely. I need to consider whether “the conduct is sufficiently serious such that revocation and disqualification are necessary for enforcing the legislation” (Brian Edward Clark 74/2001).

In making my decision my starting point is that the repute of a company of which Mr Zalecki was the sole director has been lost and this is not in dispute. He cannot be trusted as a result and in this case the lack of trustworthiness is emphasised by the findings that he lied to the Traffic Commissioner and made false statements when applying for licences. My discovery at the current inquiry makes his position worse in that one of the supposedly correct declarations was not so. He is also someone who showed a flagrant disregard for the requirement to maintain vehicles to the level required when he had his own licence and whilst involved in the licence held by his wife. There was limited evidence presented to the Traffic Commissioner to show that his approach to that aspect of compliance had improved.

Taking all factors into account I conclude that an order in this case is necessary. Mr Zalecki cannot be trusted for the reasons stated and I believe that a period of disqualification is justified to ensure the protection of the public and to be fair to other operators. The message needs to be clear to Mr Zalecki and to other operators that dishonesty leading to the description “a gross breach of trust” will be treated in a way that reflects that finding.

Ms Evans referred me to the guidance in Statutory Document 10 issued by the Senior Traffic Commissioner and the starting point for periods of disqualification which for a first public inquiry is one to three years. This is not Mr Zalecki’s first public inquiry, but I take note of the fact that the Traffic Commissioner having dealt with the full public inquiry chose a period of three years to disqualify him. Having had the benefit of hearing the submissions on behalf of Mr Zalecki and balancing those against the additional finding in relation to the false declaration made on the application for ABC Xmas Trees Limited I conclude that period of three years is a proportionate period and order this accordingly.

John Baker

Deputy Traffic Commissioner

26 January 2022