Decision

Decision for Panelcraft UK Limited - OH2039664 and Transport Manager Peter Oram

Published 1 June 2022

PANELCRAFT UK LIMITED

OH2039664

PETER ORAM – TRANSPORT MANAGER

PUBLIC INQUIRY IN BRISTOL

6 APRIL 2022

1. DECISION

The Goods Vehicles (Licensing of Operators) Act 1995 (the “Act”)

Pursuant to an adverse finding under Section 27(1), the operator is no longer of good repute, the licence is revoked with effect from 4 June 2022.

Peter Oram has lost his good repute as transport manager. He is disqualified from acting as such immediately and until 29 April 2023 (see paragraph 26). The relevant training is to work alongside another qualified transport manager within a transport business for at least three months.

2. BACKGROUND

Panelcraft UK Limited is the holder of a standard national goods vehicle operator’s licence granted 6 May 2021 authorising the use of one vehicle from Scuderia House in Swindon. The directors on the licensing record are John MacKinnon and Janneth Mackinnon (Removed as a director at Companies House on 10 March 2021). The transport manager since grant was Peter Oram.

The licence was granted with a finance undertaking requiring financial evidence for June, July and August 2021 to be submitted by 30 September 2021. A warning was also issued as it was accepted that the company had used a heavy goods vehicle for the return delivery of customers’ vehicles for some time prior to making the licence application.

The operator failed to comply with the finance undertaking despite a reminder being sent on 10 September 2021. I therefore proposed to revoke the licence and letters to that effect were sent on 16 November 2021. A telephone call was received from the operator on 16 November 2021 and bank statements supplied by email on 1 December 2021. The financial standing requirement was met but I was disturbed that there were no apparent payments to the transport manager.

On 2 December 2021, an email was sent to the operator asking for an explanation for the lack of payments to the transport manager and for a contract of employment. A contract was received on 7 December 2021 with an explanation that payments were 6-monthly. The invoice was from a limited company, not the transport manager as a natural person.

These matters caused me concern as to whether the transport manager was actually in post and executing his duties. I called the operator to public inquiry on the following grounds:

under Section 26(1)(b) of the Act, that the operator had failed to notify events which affected good repute or professional competence;

under Section 26(1)(e) of the Act, that the statement made on application that Peter Oram would fulfil transport manager duties had not been fulfilled;

under Section 27(1)(a) of the Act, that the operator was not of sufficient financial standing, professional competence or good repute.

Mr Peter Oram was called to consider his good repute as transport manager.

3. THE PUBLIC INQUIRY

John Mackinnon and Catherine Earl attended the public inquiry for the company represented by Paul Atkinson, transport consultant. Peter Oram attended represented by Elizabeth Caple, solicitor. Detailed witness statements and supporting bundles were provided in advance for which I was grateful. Financial standing was satisfied as a preliminary matter.

Proceedings were recorded and a transcript can be produced on request. I record here only the key points relevant to my findings and they are not necessarily in chronological order.

I noted at the start that I was in recovery from Covid. I had two previous days at home feeling absolutely fine but today was suffering again from a cough and cold symptoms. For that reason, I indicated that I would be unlikely to reach a decision on the day as I would wish to reflect upon the evidence when again in best of health. Because of that, in writing this decision, I have listened back to the electronic recording in full.

4. The evidence of John Mackinnon

Mr Mackinnon adopted his witness statement with a minor amendment at paragraph 17. He told me that the business was a specialist vehicle body repair workshop specialising in aluminium body vehicles and electric vehicles. His driver had been stopped by DVSA and told that an operator’s licence was needed when carrying vehicles that were not disabled. Janneth Mackinnon had been his wife and had ceased to be a director when they split. He had overlooked notifying my office.

There had never been an agreement to pay Mr Oram. Mr Oram had never assisted with compliance. Mr Mackinnon never questioned that arrangement. Some work had been done for Mr Oram for repairs to his vehicles. Covid hit the business hard with 60% of cars not on the road.

Judith Knowles is the office manager and deals with all admin work. She started a week before Covid. The finance undertaking was not satisfied because the admin mailbox wasn’t monitored whilst staffing was reduced due to Covid. Ms Knowles had submitted the bank statements.

When the transport manager contract was requested, Mr Mackinnon called Mr Oram to say that a contract was needed. He didn’t recall the details of that discussion. He asked Ms Knowles to send what was requested. They sent a standard employment contract but Mr Oram was not an employee of Panelcraft. It was only in preparation for the inquiry that Mr Mackinnon became aware that Ms Knowles had cut Mr Oram’s signature from the TM1 form and pasted it on the employment contract. Mr Oram had not been aware of that. Ms Knowles had also dated it for both parties. Mr Mackinnon had also not been aware of the invoice submitted to my office. He accepted that the actions gave a false impression of the actual position.

I asked Mr Mackinnon why he had not personally responded to the propose to revoke letter. He had spoken to Judith but Covid made staffing levels low, even in December 2020. I asked whether Ms Knowles had been disciplined and dismissed for creating a fraudulent document and submitting it to my office. She had been disciplined but was too valuable to lose.

I asked about compliance matters during the period before Ms Earl’s involvement. The driver appeared only to be recording driving time on his tachograph and nothing else. That was accepted as Mr Mackinnon wasn’t aware of the need to record other work. I asked whether the maintenance contractor was contracted to carry out repairs. at the time, they were not. This resulted in the vehicle not being signed off as roadworthy. I noted that matters had improved dramatically with the recent involvement of Ms Earl.

Suspension of the licence would be devastating to the company. Most people would not allow the vehicles to be driven. They had to be collected and returned. Quite often the only customer contact was collecting and delivery of the vehicle; it could not be subcontracted. It would be very difficult to survive a week or two week suspension. I pointed out saying “a suspension of even a seek will be fatal for the business” would not allow me to differentiate between the effect of a suspension versus revocation. Mr Mackinnon told me that outsourcing would not work because he would sometimes get very little notice of the need to collect a vehicle. Revocation would be the end of the business.

5. The evidence of Peter Oram

Mr Oram adopted his witness statement. He had known Mr Mackinnon for fifteen years through business and they had become personal friends. He had wanted to assist his friend and had agreed to be transport manager. He had advised that a transport consultant be employed to oversee compliance matters and that maintenance be undertaken by a main dealer.

Mr Oram accepted that he “had put my head on the block”. There was no intention to deceive. He had been self-isolating so could not attend Panelcraft. He probably made some calls. He now fully realised that the responsibility for compliance was his. In December last year, Mr Mackinnon had called to say that he had been contacted by my office with respect to the licence and later he had received a blank copy of an employment contract. It was only when he received the public inquiry brief that he saw the signature which had been applied by someone else. That had caused him to sever all ties with Mr Mackinnon and his business. Taking on the transport manager role was professionally incompetent and his deepest regret. It was never intended for payment to be made. The invoice at page 50 from Mr Oram’s business which was submitted to my office was in relation to other work done, not the transport manager role. I noted that maintenance was by Scania who have an online maintenance system, R2C. Mr Oram had not sought log-in credentials for that system. Likewise, he had not sought to monitor drivers hours compliance remotely.

Mr Oram had attended a 2-day refresher in February and had the continuous engagement of a transport manager within his own operation. Mr Oram told me of his own 5-vehicle operation which collected vehicles on repossession.

6. Closing submissions

Mr Atkinson urged me to consider suspension over revocation. There was a new transport manager who had addressed compliance matters. All the driver’s activities were now recorded. The business had just come through Covid, and this public inquiry was putting much more pressure on Mr Mackinnon. He had been honest with me today.

Ms Caple offered mitigation. It was admitted that Mr Oram did not attend and did not look at the records. He had been open and candid with me today. The intent had been to help a friend. The period of not attending was just six months and Mr Oram immediately resigned from the transport manager role on receiving the call-up papers.

Mr Oram held the transport manager qualification since 1985 and was proud of it. His own business had been subject to a health-check. He had already attended the two-day transport manager refresher course. Compliance was generally very good. He was not the sole director of the business; his wife was also a director and very much engaged in it.

Ms Caple referred me to the 2018 case of Mark Clinton which appeared to be on similar facts. A six-month disqualification was considered appropriate there. A period of grace might be needed for Mr Oram’s business should he be disqualified.

7. CONSIDERATION AND FINDINGS OF FACT

The facts are accepted:

• John Mackinnon and Peter Oram together put forward a signed TM1 application, at pages 26 – 31 of the bundle, that was clearly false in that it was never intended that Mr Oram conduct any of the transport manager’s duties. That caused a licence to be issued when it should not have been.

• As a result, compliance was very poor. The driver recorded only driving so no meaningful assessment of his compliance with the drivers’ hours and rest requirements could be undertaken. The vehicle was returned from the maintenance provider complete with safety-relevant defects. It was not signed off as roadworthy (note that I fully accept that Ms Earl remedied these matters on her appointment 6 – 8 weeks before the inquiry)

• An employee of the operator created and backdated a false employment contract and submitted it to my office. An invoice for unconnected matters was submitted as being in relation to transport manager duties. Those are serious criminal matters. That employee is still in post, apparently enjoying the continued support of the sole director.

• Grant of this licence came after a lengthy period of illegal operation going back beyond 2016. Whilst Mr Mackinnon may well have been unaware of the need for a licence, he should not have been. This was dealt with by a warning when the licence was granted but remains on the record.

Mr Mackinnon told me that he was completely unaware of the forged signature and the false documents submitted to my office, laying the blame with the administrator, Ms Knowles. He cannot avoid his statutory responsibilities as a director. The Upper Tribunal confirms this point in T/2014/24 KA & Z Leonida t/a ETS:

it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime

In that case, it was the actions of a transport manager, a statutory duty-holder in their own right, which had gone unchecked. The need for oversight is even more crucial for other staff. Mr Mackinnon made a false statement on the TM1 at application. He further, either personally or through the actions of his employee, falsified or mis-represented further documents when my office made contact in December 2021. He appears not to understand the seriousness of those matters. He appears irritated that he has been found out but I sensed no remorse, even having listened back again to his live evidence. I do not find that I could trust him to be compliant in the future. As to whether this is an operator who deserves to be put out of business, I answer in the positive if only because the licence should never have been granted in the first place. It was based on a sham to meet one of the four mandatory criteria. Mr Mackinnon has forfeit his good repute. He is the sole director of the company. As such, Panelcraft UK Ltd has also forfeit its good repute. Almost against my better judgement, I fall short of making an order of disqualification for either Mr Mackinnon or the limited company.

In relation to Mr Oram, it is accepted that he was transport manager in absence, he never attended the operating centre, he never sought to review compliance documents remotely which he could easily have done. It was never expected that he would manage the transport operation. All he did was offer some helpful advice and sign the TM1 form. As a result, compliance was in a dark place. It is clear that his good repute as transport manager is forfeit. Ms Caple helpfully referred me to the Upper Tribunal’s decision T/2018/46 Mark Clinton and invites me to find that the facts are comparable. I find some similarity and I can find no other authority to move me away from the Clinton case. I note that Mr Oram has already attended a two-day refresher course. I would therefore seek to adopt the six-month period as invited but the matter is complicated by the effect of the UK:EU Trade and Cooperation Agreement which has amended Schedule 3 to the 1995 Act. Paragraph 17(1A) of that Schedule now reads:

(1A) If the disqualification order was made because a traffic commissioner determined that the disqualified person ceased to be of good repute, the order may be cancelled—

(a) no earlier than one year beginning with the day on which the order was made, and

(b) only if the disqualified person has, after the order was made—

(i) passed the written examination referred to in paragraph 13(1)(a), or

(ii) for no less than three months undertaken training a traffic commissioner considers appropriate.

It appears that I am constrained to a minimum period of 1 year. I do not wish to require Mr Oram to sit and pass again his transport manager qualification. Having already undertaken a refresher course, on the job training will suffice.

8. DECISION

Pursuant to an adverse finding under Section 27(1), the operator is no longer of good repute, the licence is revoked with effect from 4 June 2022.

Peter Oram has lost his good repute as transport manager. He is disqualified from acting as such immediately and until 29 April 2023 and until he has undertaken on-the-job training by working alongside a transport manager in a transport operation. A replacement transport manager has already been appointed so no period of grace is necessary.

Kevin Rooney
Traffic Commissioner

29 April 2022