Decision

Decision for Yadly Marketing Company Limited (OK2054246) & Peter Beck – Former Transport Manager

Published 13 September 2023

0.1 In the South Eastern & Metropolitan Traffic Area

1. Traffic Commissioner’s Written Decision.

1.1 Yadly Marketing Company Limited (OK2054246) & Peter Beck – Former Transport Manager

2. REASONS

2.1 Background and Approach

The full history is set out in the public inquiry bundle and the legal basis for any adverse findings are set out in the call-in letter dated 10 July 2023. I specifically refer to the Case Summary at pages 3 – 5 of the hearing bundle which provide important context for the Operator in the areas for consideration at the PI and why. I do not repeat all the evidence here save where it is material to my decision on each aspect.

As per 2013/008 Vision Travel International Limited and 2013/061 Alan Michael Knight I am entitled to treat the conduct of a sole Director Mr Mohamad Saleem Yaddallee effectively as the conduct of the limited company and repute or fitness is determined accordingly. As well as the operator licensing obligations, a company director must exercise his or her statutory duties of demonstrating independent judgement, skill, care, and diligence, as per sections 173 and 174 Companies Act 2006.

2.2 The Hearing

The hearing took place on 30 August 2023 at my Tribunal Room in Eastbourne. The call-in letter states “It is important a board-level director of the company attends the public inquiry”, with limited circumstances where a non-director as opposed to legally qualified person might replace them. Mr Yaddallee did not attend. ‘The Company’ instructed a solicitor Mr Willis to attend, something not notified until 18:11 on 29 August 2023 and without clarification of the basis he is attending. Mr Willis arrived in good time for the hearing. Regrettably, Mr Beck failed to attend even though the case was relisted for his convenience. Mr Beck was aware that 30 August 2023 was being put to the Operator as a mutually convenient date. Mr Beck says he did not receive the e mail from my office dated 1 August 2023 confirming today. The e mail was sent to the correct address. Even if it was inadvertently deleted by Mr Beck he could and should have contacted my office for an update long before today. As there is no prejudice to the Operator, rather than deal with his good repute on the papers, I will afford Mr Beck one final opportunity to attend an ‘in person’ hearing, which must be in October 2023. My office will be telephoning him very shortly about this. Accordingly, I have reached the decision set out in paragraph 1 above.

At the start of the hearing, I asked Mr Willis to clarify his instructions – whether it is a watching brief or his intention to formally engage in some way. Mr Willis confirmed that he has limited instructions other than to assist the Tribunal. I asked Mr Willis how that assistance might look, Mr Willis being unable to give evidence. Even though the hearing was put back two weeks, the Operator failed to meet the deadlines for lodging its evidence in advance by a significant period. When the small bundle was sent in (on 29 August 2023 @08:09hrs) there is no application to accept late evidence or reasons given for the delay - instructing a solicitor late is not a reason for failing to send evidence direct to my office by a deadline. The covering e mail from Mr Willis merely states: “They apologise to the Commissioner for the lateness of this material, but hope it will be helpful to their case.” Similarly, a short ‘personal statement’ said to be from Mr Yaddallee was forwarded to OTC on 29 August 2023 @ 18:06 by Mr Willis who in turn received it via ‘naushad@yadcofoods.com’. It is unclear whether any amendments were made by ‘naushad’ before making its way to Mr Willis. Again, there is no application to accept late evidence, just a note from Mr Willis that ‘The Company apologises to the Commissioner for the lateness of the material’.

To ascertain whether Mr Willis might be able to meet his duty to assist the Tribunal, I asked him to confirm if he had spoken or communicated with the sole director Mr Yaddallee. Mr Willis declined to say anything other than he is instructed by the Company. I pointed out the long-established principles in relation to sole directors and operator licensing, as per paragraph 5 above. This includes the sole director’s direct responsibility for the obligation to exercise quality monitoring and control of the transport operations (delegation not abdication). Mr Willis again would only say he is instructed by the Company. I was transparent around the purpose of my question – the documents sent in when viewed with the PI bundle raise questions who is actually running ‘the Company’. If the Company is acting through a delegation or similar to a third party/employee it is relevant. Mr Willis says he is not in a position to bind the Company but thought he might give some oral legal submissions. When I asked if they had been gone through with ‘the Company’ the response was equivocal. It was the same when I asked why the submissions were not received in advance. I appreciate Mr Willis cannot go behind privilege but if he is going to attend in this way in the future, more thought needs to be given to the case and circumstances. In this case, it is obvious from the papers that how much Mr Yaddallee is involved is an area I required clear evidence and assistance. I determined the safest way to avoid any misunderstandings, conflicts, or unintended outcomes, was to deal with the case on the papers.

2.3 Consideration and Findings

I note the Desk Based Assessment was served by DVSA on the Operator on 16 May 2023, giving 7 days to reply. The DBA shows on page 1 (page 57 of the PI bundle) that Peter Beck is the person originally sending the records and questionnaire. The business contact name is Mr Yaddallee but the email address next to it is ‘naushad@yadcofoods.com’. The DBA includes: “On numerous occasions the statements on the DBAQ refer to Naushad Ruhomutally carrying out duties which would be the responsibility of the Transport Manager. On the declaration page Peter Beck, Transport Manager and Naushad Ruhomutally are listed and Naushad Ruhomutally is referred to as the Operations Director but is not a director of the company. Both Mr Beck’s and Mr Ruhomutally’s initials are shown in the DBAQ confirmation boxes.”

The Operator reply (page 77 of the hearing bundle) is from “Naushad Ally”, which without wider explanation is taken as Naushad Ruhomutally but with a different title ‘Head of Operations and Compliance’. The response is short, simply blaming Mr Beck for not doing his duties as expected and an intention to surrender the Licence and outsource transport. Mr Beck’s response to DVSA (page 78 of the PI bundle) confirms his resignation and “…Naushad will continue to run the transport department”. Accordingly, I make adverse findings regarding the Operator set out in paragraph 2 above, in light of the following unchallenged DVSA evidence:

• A Companies House search revealed the sole director to be Mohamad Saleem Yadallee. The Operator failed to notify the resignation of Mohammad Farouk Yadallee on 22 July 2022.

• The operator failed to produce raw digital data for vehicle GK21AWU and all drivers, as requested.

• Of 4 Preventative Maintenance Inspection records provided, one industry standard handwritten and 3 electronic records. No defects were recorded, and no explanation provided as to how the system meets the requirements of the Guide to Maintaining Roadworthiness. Records were incomplete and frequency of inspections have not been adhered to.

• No driver defect records produced and no robust evidence to support claims that Defect reporting books are used.

• No maintenance contract provided and although HGV London Ltd are the listed contractor the operator has indicated that they will be changing maintenance provider to Hunter Vehicles Ltd – no details were provided.

• Operator does not appear to understand the requirement to monitor and record ad-blue and fuel usage to evidence that emission suppression equipment is functioning correctly.

• Operator has not provided evidence or explanation of a system to record and account for re-torques at wheel re-fitment/monitor and record tyre condition, fitment and age.

• Some explanation for load security provided but no evidence provided that training has been delivered.

• No evidence provided of any security procedures, training or instruction to increase awareness.

• No evidence provided of intervals that driving licences are checked & driver CPC monitored.

• No training records produced.

• No evidence of drivers hours/record keeping produced.

• Inadequate Working Time Directive systems in place.

The Licence conditions and undertakings require systems to be in place to ensure the conditions and undertakings on the Licence are met. An Operator’s system that does not work is no system at all. It is an aggravating feature that not all the required data and records were sent. The duty to co-operate and produce records to Traffic Commissioners and DVSA as required are long standing legal principles supported by legislation and case law. I have no evidence before me that Mr Yaddallee took any interest in the DBA or its outcome.

There are few positives because the Operator’s bundle of evidence raised as many questions as it answered – I showed Mr Willis the many ‘post it’ notes attached. In light of the Operator’s last minute and cursory approach to the Public Inquiry I did the best I could from the bundle and information publicly available online. In terms of recent records, all I have is one PMI sheet. The form is completed manually and dated 25 July 2023. The form itself is not current in that there is no provision for age of steer axle tyres, tyre pressures and defects which correspond with driver reportable items. There is a laden brake test dated 25 July 2023 and the vehicle passed its MOT a few days later. Whilst brake performance testing is improved the out-of-date PMI form itself is disappointing. No driver defect sheets were produced or evidence of wheel removal/torque/re-torque. It follows there is nothing more that the Operator could have sent other than the inadequate evidence sent to DVSA. The Operator was required to send in a ‘missing mileage report’. There is a document created by ‘Naushad’ on 25 August 2023 headed ‘Vehicle Utilisation’ which is not the same thing. It raises questions as there are daily details 1/4/23 – 20/4/23 and then no separate daily data until 27 July 2023, i.e including the suspension period. The Stoneridge Optac 3 website confirms missing mileage report is the ‘Unknown Driver’ Report on its system and gives the very simple steps to creating that report. It follows the Operator has prevented an informed assessment by me.

Whilst financial standing is met, the bank statements do not indicate Mr Naushad Ruhomutally is paid commensurate with either of the titles he is given. There are a few small irregular payments. Mr Yaddallee is paid a salary as well as dividends indicating some role but there is no corroborative evidence as to the level of any (let alone effective) oversight. In his personal statement Mr Yaddallee blames the transport manager for not doing his job but there is no evidence Mr Yaddallee ever noticed let alone raised his concerns with Mr Beck. Mr Yaddallee refers to a downturn/change in business model whereby the vehicle is not needed. He also refers to challenges looking after his father and son putting him too much pressure to cope with running an ‘in-scope’ vehicle. Mr Yaddallee’s absence prevents any further exploration and the personal statement is silent on the role of Mr Ruhomutally. The Operator’s website (http://www.yadcofoods.com/) refers to Mr Yaddallee and Mr Ruhomutally as ‘Director’, see extract at Annex A screen shot on 30/8/23. Mr Ruhomutally has never been a statutory director of Yadly. He is a director of RAZ GROUP LIMITED, with the same SIC (46380 - Wholesale of other food, including fish, crustaceans and molluscs) but no Operator Licence. VOL shows that the only individual who has VOL self service access for this Licence and the previously revoked Licence is Mr Ruhomutally.

2.4 Conclusion

I do not accept the surrender. I am not obliged to accept a surrender where I am on notice it may be to avoid regulatory action. In this case the SUR declaration was received on 25 May 2023, having received the unsatisfactory DBA form notifying possible referral to OTC (page 73 of the bundle) a few days before. Mr Yalladdee’s email to me via Naushad and Mr Wilis on 29 August 2023 refers to his decision to ‘temporarily surrender’ the Licence. In the absence of oral evidence and considering my findings, a surrender is not appropriate as it is more likely than not a device to avoid action. Accordingly, I have reached the decision set out in paragraph 2 above.

Whilst the Licence was only granted on 29 June 2022, there are basic and safety critical failings. In terms of the Operator, there is no evidence the sole director was exercising quality monitoring and control of the transport operations. His ‘personal statement’ suggests he was distracted by family concerns and solely reliant on Mr Beck. This strikes at the underpinning principles of the operator licensing regime, road safety and fair competition. Revocation at a first public inquiry is not disproportionate in a serious case, as here. This company had a previous Licence revoked, albeit without a Public Inquiry. Mr Yalladdee has breached his obligations as a director under the Companies Act 2006 and the 1995 Act. The Licence is revoked, and the Operator’s good repute is lost. I make it clear this outcome stands alone before I consider the role of Mr Naushad Ruhomutally. Accordingly, I have reached the decision set out in paragraph 3 above.

3. Decision repeated here for web publishing.

The Public Inquiry regarding the good repute of Mr Beck is severed and will be relisted.

The request to surrender the licence is refused.

Pursuant to adverse findings under section 26 (1)(b) (e), (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995, Licence OK2054246 is revoked with effect from 23:45 on 4 September 2023.

Miss Sarah Bell

31 August 2023