Decision

Decision for RADLAND HAULAGE LTD, BRIAN K WENMOTH & PARTNERS and BRIAN KEITH WENMOTH t/a B & G HAULAGE

Published 22 September 2022

1. RADLAND HAULAGE LTD – OH2013885

2. BRIAN K WENMOTH & PARTNERS - OH1036296

3. BRIAN KEITH WENMOTH t/a B & G HAULAGE – OH1080028

4. PUBLIC INQUIRY IN BRISTOL

4.1 16 JUNE 2022

5. BACKGROUND

Brian Keith Wenmoth and partners Julie Wenmoth and Alistair Wenmoth hold a standard national goods vehicle operator’s licence granted in October 2004 and authorising the use of two vehicles from Watergate Cottage, Saltash. The transport manager is Alistair Wenmoth.

Brian Keith Wenmoth, trading as B & G Haulage, is the holder of a standard national goods vehicle operator’s licence authorising the use of eight vehicles and one trailer. The transport manager is Gareth Wenmoth. Seven vehicles are shown as in possession. The licence started on 5 November 2008. It operates from three operating centres; Station Yard, Callington, Watergate Cottage, Saltash and Bake Sawmill, Saltash.

Radland Haulage Ltd is the holder of a standard national goods vehicle operator’s licence authorising the use of four vehicles and four trailers from sites at Station Yard, Callington, Watergate Cottage, Saltash and Bake Sawmill, Saltash. The directors are Gareth Wenmoth and Kieran Wenmoth. Gareth is the transport manager. The licence was granted in August 2018. A variation application was made in summer 2021 to increase authority and I know now that was to, in effect, absorb the sole trader operation.

The operators came to the attention of DVSA following a vehicle stop on 20 August 2020 of vehicle GN61GPZ. The driver was [REDACTED]. The vehicle was specified on the sole trader licence of Brian Wenmoth. The driver said that he worked for both B & G Haulage and Radland Haulage Ltd.

This led to an investigation which was carried out by Traffic Examiner Rita Edmonds and Traffic Examiner Dave Liddall. TE Liddall completed a traffic examiner visit report on 24 August 2021 which was marked unsatisfactory. TE Liddall found the following shortcomings:

• Driver licence checks at only six-month intervals

• No real process to deal with infringements, reports are signed with little action for repeat offenders

• No effective disciplinary process in place for working time directive breaches

• Transport manager could not show evidence of recent continuous professional development

Traffic Examiner Edmonds sent a request for driver and vehicle unit data to the operator on 5 January 2021. The operator duly supplied the data which showed that drivers were driving vehicles for all 3 operators and that company cards were routinely locked into tachographs for vehicles that are specified for the other operations. The data also shows instances of working time directive breaches and driving without a card. Drivers had worked very long hours.

The drivers hours and working time breaches along with the apparent pooling of the licence authority caused me to call all operators and transport managers to public inquiry.

I held a related driver conduct hearing in April. The operators and their representatives were invited to observe and Mr Davies and Mr Wenmoth did so.

6. THE HEARING

Radland Haulage Ltd attended the inquiry in the person of Gareth Wenmoth, represented by Mark Davies, solicitor. Alastair Wenmoth attended for the partnership represented by Paul Atkinson, consultant. [REDACTED].

The hearing was recorded. I do not summarise all the evidence here as I believe the findings to be non-controversial. I had delayed my decision to allow applications to be made but the delay has become longer than intended due to other pressures. Realistic representations were made in advance. Mr Davies told me that the limited company sought authority for seven vehicles, much smaller than the sixteen originally applied for. Finance was not there at the moment but would be and was supported by assets and that could be confirmed in the future. There was an outstanding bounce-back loan. I requested a schedule of the assets with an independent valuation for a stressed sale. Mr Davies asked for 14 days and I agreed.

I summarised the outcome of the driver conduct hearings which was as follows[1]:

ALL REDACTED

Alistair Wenmoth now runs the partnership operation. His parents have largely retired. The vehicles are used in connection with an agricultural contracting business. The partnership needed to operate only one vehicle. It was accepted that one vehicle that had been specified on that licence was operated entirely by Radland Haulage Ltd in connection with a building supplies business that he and Gareth ran. It was accepted that the licence authority had been loaned to Radland. They had not thought to cross-hire vehicles and drivers and that would not have been a genuine situation in any case. Gareth had already applied to increase Radland’s authority prior to the vehicle being specified. The action was accepted as “stupid”. As it is just the one vehicle, he would be able to manage the transport operation.

Arrangements existed for drivers to work across the businesses for flexibility. Initially that was done without cross-invoicing; it was a favour. Alistair Wenmoth had attended a 2-day RHA transport manager refresher course on Zoom in October 2021.

Gareth Wenmoth told me that the intention from the outset was for him to take on the sole-trader business. When it was realised that couldn’t happen, Radland Haulage Ltd was set up as the successor entity. B&G had four lorries contracted to WH Bond and two to Fred Champion Scaffolding. Radland had three rigids and one artic, some working for Fred Champion and the others on general haulage. Historically, invoicing was separate but that had changed over time and one invoice was sent by Radland for all work. Gareth Wenmoth fully accepted that the two operations were basically run as one. Drivers were generally employed by one entity and mostly stayed within their own business.

The solution was to get rid of the sole trader licence. There had been an application to increase Radland from four to sixteen. The two businesses were using twelve vehicles in total. Seven vehicles would mean that contracts would be given up and drivers made redundant.

Gareth relied heavily on [REDACTED] in the office to assist with the transport management activities. The intention was to put her through her CPC. She had been furloughed during Covid which contributed to the adverse findings of TE Liddall. In the same period, some of the older drivers hadn’t wanted to work and he had permitted that. Gareth had to take up some of the slack.

Drivers worked also for Fred Champion and others. That was pure driver hire with proper invoicing in place. It was not preferred as a way of working.

The tachographs and timesheets didn’t match up because drivers were doing additional work in the workshop or elsewhere to boost their wages. Some of the differences were due to drivers arriving for work on time but the vehicle or load not being available. Two drivers had reasons to want to work at weekends and that had been permitted. Mr Wenmoth had not thought about whether that work was recorded on the tachograph. He didn’t do the wages so hadn’t been aware of the extra pay. He didn’t think the drivers had been “breaking that many rules”. Pay was now all done off the tachograph rather than timesheets and that was evidenced. That followed advice from TE Liddall and was put in place in August 2021. An alternative potential transport manager had been identified. Recruitment had not progressed due to the impending public inquiry. The intention was to employ him full-time. He would also use a consultant. A compliance audit was offered as an undertaking. Keeping only four vehicles in total would be deeply challenging.

Mr Atkinson closed by submitting that Alistair Wenmoth be allowed to keep his good repute and then he could submit an application from a limited company, yet to be established. The other partners simply wanted to walk away. As transport manager, he could operate only one vehicle. There were no current compliance issues. An undertaking was offered for a compliance audit.

Mr Davies closed by accepting that the situation was currently a bit of a mess. It was accepted that the case was in the serious category due to the lending of licence authority. However, the entities were linked by family which didn’t make it right but was mitigation. Brian Wenmoth wanted to run his own business but his health meant that he could not always do that and Gareth had to step in. Staff had been furloughed and Gareth was left spinning even more plates.

The work that had not been recorded on the tachograph was not related to driving. It was not drivers pulling a card and continuing. The failure here was failing to record other work in a workshop or cleaning vehicles. Action was taken as soon as the matter was pointed out to ensure that all pay was now done from the tachograph. The issue of doing other work had ceased. Decisive action had been taken as soon as Gareth Wenmoth knew it was an issue. Proper disciplinary processes had been put in place and there was evidence that it was being used.

I reserved my decision. I invited further financial evidence from Radland Haulage Ltd.

7. FINDINGS OF FACT

Brian K Wenmoth and Partners knowingly allowed its licence authority to be used by Radland Haulage Limited for a period of around 18 months. The motivation was to allow Radland Haulage Ltd to supply transport for a linked business. That is a material change and Section 26(1)(h) is made out. I attach significant weight.

Radland Haulage Ltd and Brian Wenmoth have lost any clear blue water that may have existed and been run essentially as one business. That is a material change and Section 26(1)(h) is made out. I attach significant weight.

Drivers of Radland Haulage Ltd and Brian Wenmoth were allowed to work hugely excessive hours. That would have been known to the employer who was paying drivers for in excess of 60 hours a week on multiple occasions. It ought also to have been known to the director and transport manager Gareth Wenmoth. Section 26(1)(f) is made out and I attach significant weight.

In the positive, action was taken immediately in relation to those working time matters.

The lending of licence authority by all parties continued after the DVSA investigation for commercial and convenience reasons.

The controlling mind of the partnership licence is now solely Alistair Wenmoth. The other two partners play no part in the business.

I acknowledge and take account of the health matters which were evidenced and which have contributed to the issues at hand.

I have since the inquiry seen evidence of a closing balance for Radland Haulage Ltd which is sufficient to allow me to consider grant of authority for seven vehicles.

I have seen evidence that Alistair Wenmoth has incorporated a new limited company.

8. CONSIDERATION

The investigation in this case derives from an encounter started in August 2020, almost two years ago. The originating matters are old. But they are serious. The extent of breach of the working time rules is huge. Those breaches were in the knowledge of the operators because the operators paid the drivers. That Gareth Wenmoth was not aware is an indictment of his complete lack of continuous and effective management of the transport operation. He told me that he didn’t think drivers were “breaking too many rules”, the clear inference being that breaking a few, or quite a lot, of rules was fully acceptable. That is inexcusable in any transport manager.

Gareth Wenmoth allowed the sole trader and limited company operations to merge with customers sent a single invoice and all compliance operations conducted as one. Drivers worked across the businesses. He was either unaware that was wrong, which is a difficult position for a transport manager, or he allowed it to happen fully realising it was illegal. Together with the working time breaches, and even allowing for the matter referred at paragraph 29 above, I find that Gareth Wenmoth has lost his good repute as transport manager. He is disqualified from acting as such for a period of one year. The UK:EU Trade and Cooperation Agreement 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.

I leave it to Mr Gareth Wenmoth to decide whether he wishes to sit the CPC examination again or undertake three months relevant training, the contract and structure of which I would strongly recommend is agreed with a Traffic Commissioner in advance. Of course, he may choose not to use his CPC qualification again.

That decision obviously leaves both operations in some distress with revocation being mandatory. However, I was told that a new transport manager had been identified for Radland Haulage Ltd. It is appropriate that I provide a period of grace of three months, until 8 November 2022, for professional competence to be restored. If it has not, the licence will be revoked at that point pursuant to s.27(1) of the Act.

Brian Wenmoth is also without professional competence. I am not aware of any potential replacement. Indeed it is accepted that the licence comes to an end, the controlling mind no longer being, in large part, Brian Wenmoth. The licence is revoked. To allow for a restructuring of operations and a reduction in the overall operation of Radland which follows, revocation will take effect from 8 November 2022.

I ask myself whether Radland Haulage Ltd is a business I can trust to be compliant in the future. It is finely balanced. On the one hand, the transport manager allowed for gross breaches of working time rules and of operator licensing law. On the other, the working time matters were swiftly corrected and I find nothing particularly troubling in terms of compliance today. I am offered an undertaking for an audit. Crucially, for the business to continue, there will have to be a new transport manager. On that basis, and on recording the audit undertaking, I find I can expect the company to comply in the future and it need not be put out of business. The undertaking is as follows:

• An audit shall be conducted by a competent independent person by 31 January 2023. The scope of the audit shall include systems for the management of maintenance, driver licencing, drivers hours and working time and the role of the transport manager in line with the requirements of EU Regulation 1071/2009 and STC Guidance. The audit report will be prepared, acted upon and retained for at least 2 years. A copy of the report together with the operator’s plans for implementing any recommendations will be forwarded to the Office of the Traffic Commissioner by 28 February 2023.

I am asked that the variation application be granted in modified form to allow the operation of seven vehicles (compared to the twelve currently in operation). I am content to grant that variation as now sought, with trailer authority increasing to seven also. That will be the new authorisation at Station Yard, Callington. The application to add Bake Farm, Saltash with authority for four and one is also granted.

I record a formal warning against Radland Haulage Ltd for the breaches above.

Alistair Wenmoth allowed Radland Haulage Ltd to use the partnership’s licence authority to service a new business he had set up with his brother, Radland Building Supplies Ltd. That arrangement continued long after the issue had been brought to his attention by DVSA. The vehicle in concern was removed from the licence only after the call-in letter was sent. For that reason, regulatory action is necessary. Pursuant to Section 26(1)(h), material change, the licence is curtailed to one vehicle indefinitely.

I have concerns that two of the partners are no longer within the business and that there is not a partnership deed in place. I have considered whether I should revoke the licence but fall short of making that finding. I invite a fresh application from Alistair Wenmoth either personally or through a limited company.

9. DECISIONS

Pursuant to adverse findings under s.26(1)(f) and s.26(1)(h) and 27(1), licence OH1080028 Brian Wenmoth is revoked with effect from 8 November 2022.

The application to vary licence OH2013885 to authorise the use of sixteen vehicles and ten trailers is granted in modified for to permit operation of seven vehicles and seven trailers.

In relation to OH2013885, the new authority at Station Yard, Callington is seven vehicles and seven trailers. The application to add Bake Farm, Saltash with authority for four and one is granted.

A formal warning is recorded against Radland Haulage Ltd.

Mr Gareth Wenmoth has lost his good repute as transport manager and is disqualified from acting as such for a period of one year and until either he sits and passes again the transport manager examination or he undertake three months relevant training.

I provide a period of grace to OH2013885 until 22 November 2022 to restore professional competence. The licence will be revoked on that date if professional competence is not restored.

Pursuant to an adverse finding under s.26(1)(h), licence OH1036296 is curtailed to one vehicle immediately and indefinitely.

Kevin Rooney

Traffic Commissioner

8 August 2022

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[1] (The relatively short suspensions reflected both the age of the relevant offences and a provisional finding by me that the employer should not have permitted the excess working time but had taken no action. I made that finding for the benefit of the conduct hearings but I approach this decision with an open mind in that regard.)