Decision

Decision for R & M Bulk Transport Limited

Published 11 December 2023

0.1 EASTERN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HEARD AT THE TRIBUNAL ROOM, OFFICE OF THE TRAFFIC COMMISSIONER, EASTBROOK, SHAFTESBURY ROAD, CAMBRIDGE, ON 7 NOVEMBER 2023

2.1 OF2046886 R & M BULK TRANSPORT LIMITED

3. Background

The operator R & M Bulk Transport Limited is the holder of a standard national licence granted from the 31 January 2022 authorising twelve vehicles and twelve trailers. The director of the company at the time the operator was called to inquiry was Alrick Charles Browne who was also a joint transport manager with Mahabir Sandhu. On the 3 August 2023 Alrick Browne was removed as a director and on the 1 September 2023 Daniel Beal was appointed.  Alrick Browne has a poor record in relation to operator licensing having lost repute and been disqualified as an operator and transport manager in 2002, having repute as a transport manager restored in 2005 and as an operator in 2015. He has also been a director of other companies whose licences were revoked. The full details were set out in the case summary prepared for this public inquiry.

This licence was granted following a public inquiry held on the 24 January 2022 and was subject to undertakings which included a requirement for laden rolling road brake tests at each preventative maintenance inspection, the requirement for a second transport manager and a condition that Mark Browne (who is Alrick Browne’s brother) would only work as a driver, play no part in the day to day running of the business and have no management responsibility within the company.

Mark Browne was disqualified indefinitely from holding an operator licence following a public inquiry held on the 18 October 2011in relation to a company called Mynach Plant Limited. Despite this disqualification he became a director of a company Knowle Logistics Limited and this company was called to inquiry and the licence revoked on the 22 June 2021. Mark Browne was subsequently convicted at Thames Magistrates’ Court of obtaining an operator’s licence whilst disqualified and using a vehicle without an operator licence on the 19 April 2022. Solicitors informed the Traffic Commissioner of the conviction on the basis that Mark Browne was a driver for R & M Bulk Transport Limited.

On the 1 September 2022 an authorised vehicle was stopped by the DVSA and a prohibition issued which was marked as indicating a significant failing in the maintenance systems. Failings were an insecure load and condition of tyres.
A maintenance investigation was carried out by the DVSA on the 6 December 2022 and was marked with an overall assessment of mostly satisfactory but report to the Traffic Commissioner. Failings included an absence of evidence of brake testing on some occasions, driver detectable failings being found at maintenance inspections and a prohibition rate of 21% with an immediate prohibition issued on a trailer for loose wheel nuts at the time of the investigation.

As a result of the background and the outcome of the maintenance investigation the operator and transport managers were called to public inquiry which was originally scheduled for the 26 June 2023. The call up letter included a direction for maintenance and driver management documentation to be sent to the Office of the Traffic Commissioner by the 14 June 2023.

The hearing scheduled for the 26 June was adjourned as a result of medical treatment being required by one of the transport managers, Mr Sandhu. On the 24 July 2023 the representative of the operator notified of a disqualification from being a director of a company against Alrick Browne for a period of ten years from the 1 August 2023. As a result of this notification a “propose to revoke” notification was sent to the operator and this resulted in a request for a public inquiry being submitted.

The public inquiry was scheduled for the 12 October 2023 and the operator notified accordingly. None of the directed pre inquiry documentation was submitted until the day of the hearing when the operator arrived with several boxes of files and documents for my consideration. I asked why the documentation had not been submitted previously as directed and received no valid explanation. I adjourned the inquiry until the 7 November 2023 and stated that the late submission of evidence would be seen as a negative factor in my considerations.

4. The Public Inquiry

Alrick Browne, Daniel Beal and Mahabir Sandhu attended the public inquiry and the operator was represented by Ms Evans. She confirmed that Mr Browne was no longer a director of the company following the ten year disqualification. He had ongoing health issues and also intended to resign as a transport manager.  A proposed transport manager Amanda Balcerzak was in attendance and represented by Ms Evans.
Mr Sandhu said that he had resigned as the second transport manager after the hearing on the 12 October 2023.

5. Evidence

Ms Evans had submitted a bundle of papers including representations on behalf of the operator and proposed transport manager which were very helpful in confirming the background to the case. The representations included reference to a second “s marked prohibition” which had been issued on the 24 May 2023 in relation to the condition of a tyre and serious braking defects. This had prompted a second maintenance investigation by the DVSA which had taken place on the 2 August 2023 and resulted in an overall marking of unsatisfactory. Failings included the driver defect reporting system, incomplete PMI records, brake testing and increases in the prohibition issue and MOT failure rate.

Alrick Browne accepted the findings of the maintenance investigations and my assessment of the documentation provided just before the inquiry on the 12 October 2023. I had found that the brake tests were not always completed with fully laden trailers or vehicles, that there were no training records, that driver hours’ infringements were not brought to their attention and missing mileage reports had not been followed up.

Mr Browne confirmed that his brother Mark Browne held 80% of the shares of the company and he had the remaining 20%. Maintenance was now being conducted by an engineer David Willetts although the facilities were in-house.

Mahabir Sandhu had submitted representations and attachments before the hearing on the 12 October 2023 and I confirmed I had read these. He said that he had resigned as transport manager after the hearing on the 12 October because he was denied access to the office and there had been a disagreement over the disclosure of the representations he had submitted to the Traffic Commissioner. He confirmed to me that when in post he had dealt with the drivers’ hours work and Mr Browne had covered the maintenance side. I pointed out that he had stated in his representations that he was denied access to the tachograph analysis system by Mr Browne and he confirmed this was the case. He said that he had asked questions in relation to infringements but was “told there was nothing to be concerned about” He had tried to set up new systems but had to abandon them because of non-cooperation of Mr Browne. He had not been aware of all the prohibitions issued or the appointment of Mr Beal as a director. Mark Browne had worked in the office and was the line of communication with the drivers.

In cross examination Mr Sandhu said that he had agreed a salary based on working three days a week. He denied falling asleep in the office and said that although his health had deteriorated he had only been “relaxing with his eyes closed”. He had not disclosed his representations to the inquiry to the directors and had refused to do so at the previous hearing. He was asked why he had not spoken to the in house fitters to improve their performance and said that they were employed by Mr Browne so this would not have been productive.

Daniel Beal said that he had been working for 3 hours per week helping out with invoicing. He had known Alrick and Mark Browne as friends in the past and they had been supportive to him after the death of his wife. He felt that he “owed them” and agreed to become the director of the company when they asked him to help. He outlined his employment background which included working for large organisations some involving transport. He saw the future roles of Alrick and Mark Browne as advisory as they had over 35 years’ experience of the industry but he would be the director working closely with the proposed new transport manager. As far as he knew Mr Sandhu had been given access to all the systems in the past and his recollection of events leading to Mr Sandhu’s resignation as transport manager was different. He believed that access to the office had not been denied and Mr Sandhu had taken it upon himself to leave.
Amanda Balcerzak detailed her background as a transport manger and confirmed that she was already designated on three other licences. She had met with Mr Beal and the Browne brothers. She believed they wanted to run the company properly now and she was willing to assist. She would allocate 13 hours per week to this operator with more to start with. She intended to change all the systems including the training of drivers, If there was non co-operation from the company she would resign and inform the Traffic Commissioner why she had done so. She had taken this action in respect of a previous operator and would do so again.

Ms Evans submitted that there were positives as well as negatives for this operator and offered undertakings including an audit, training for Mr Beal and exclusions from management of transport in relation to Alrick and Mark Browne. She detailed the consequences of potential regulatory action and asked me to find that the operator, with a new director and transport manager could be trusted going forward.

6. Findings and Decision

It is evident in this case and I am satisfied that there have been breaches of Section 26(1)(b), (c)(i) and (ii), (iii), (ca), (e) and (f) of the Goods Vehicles (Licensing of Operators) Act 1995. In deciding the seriousness of the case, I need to balance the negatives factors with any positives I can find. The list of sections breached speaks for itself and I remind myself that this licence was granted following a public inquiry in January 2022. No doubt at that hearing promises of compliance were made backed up with undertakings. In the 20 months that have followed the compliance regime has been unacceptable and the undertaking for laden brake testing not met. The appointment of an additional transport manager in Mr Sandhu has not had the desired effect and of particular concern is the accumulation of prohibitions with several showing defects in safety critical areas such as brakes and tyres. Alrick Browne’s disqualification as a director adds to the negative list as does the production of the directed documentation only on the day of the inquiry scheduled for the 12 October 2023. The adverse history in relation to former director and transport manager Alrick Browne is also an item in the negative column.

On the positive side there is only the new director and transport manager which I can consider. Having heard from Mr Beal he presented as a professional person and I have no reason to doubt his integrity. Similarly Ms Balcerzak was clear in her evidence and appeared to be a competent and professional transport manager. Ms Evans proposed that I should give credit to the operator for disclosing Mark Browne’s convictions and the second maintenance investigation and I do so but any credit I give for these is balanced against the negative content of both.

Having balanced these factors I conclude that this case fits in the severe category of case as set out in Statutory Document 10 issued by the Senior Traffic Commissioner. This puts it in the category where revocation must be one of the options. Before making that decision I have to ask myself the question as set out in the case of Priority Freight Limited & Paul Williams i.e. if this licence is continued, 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? In answering that question I have reflected on the favourable impressions I formed in relation to Mr Beal and Ms Balcerzak but remind myself that these impressions have to be put in the context of this licence and business. Mark Browne holds 80% of the shares in the company and is involved in the business on a day to day basis. I was told he worked in the office as well as driving for the company. I was also told that Mr Beal was a friend of the Browne brothers and was grateful to them for the support they had given him in the past. Whilst I did not accept all of Mr Sandhu’s evidence I did accept what he said about the fitters being answerable to Alrick Browne and Mark Browne being the line of communication to the drivers. Within that regime the fitters have fallen well below the standards required and the drivers have been allowed to miss some defect reporting and have not been disciplined for tachograph infringements. Even with the assistance of Ms Balcerzak I find that it is more likely than not that Mr Beal will not be able to change the culture of the company so radically and within the timeframe that is required. Apart from the enormity of that task the continuing presence, likely influence of Mark and Alrick Browne and Mr Beal’s relationship with them are factors. It follows therefore that my answer to the Priority Freight question is in the negative and, bearing in mind all the circumstances, I find that this is an operator who deserves to be put out of business.
My order is therefore to revoke the licence under Section 27 (1) of the Goods Vehicles (Licensing of Operators) Act 1995 on the ground that the operator no longer meets the statutory requirement for repute. The order for revocation will take effect from 00.01 hours on the 8 January 2024 thus allowing time for an orderly closure of the business. I expect Mr Beal to ensure that compliance requirements are met during the period leading up to revocation and I allow Alrick Browne to continue as a transport manager until that date.

Alrick Browne’s repute is lost and he is disqualified from holding or obtaining an operator’s licence indefinitely. His previous record is very poor and the facts of this case lead me to conclude he should not be allowed to hold a licence as an individual, partner in a firm or director.

Alrick Browne’s repute as a transport manager is also lost and he is disqualified from holding that position for an indefinite period with effect from 00.01 hours on the 8 January 2024. If he wishes to apply for an appointment in the future he will need to pass the CPC examination afresh and display a very different attitude towards compliance.
In relation to former transport manager Mahabir Sandhu I find that his repute is lost. I believe he tried when first appointed to make some changes and improvements but once he was thwarted in those attempts he continued in his role and appears not to have taken any further action. It is expected that a transport manager will be proactive and assertive and Mr Sandhu was neither. He should have pressed harder to be informed of all compliance related matters and should have resigned if this did not happen. He did not do so. As a result of the loss of repute I am obliged to order a period of disqualification and in Mr Sandhu’s case I so order for a period of twelve months with immediate effect. I do not order any specific rehabilitative measures but do expect him to be determined to be more assertive in the transport manager role if he achieves another appointment.

6.1 John Baker

Deputy Traffic Commissioner   

22 November 2023