Decision

Written decision for DBM Haulage Ltd & Marius Vasile Gheres

Published 21 June 2024

0.1 SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HEARD AT IVY HOUSE, IVY TERRACE, EASTBOURNE ON 16 MAY 2024

3. OK2055541 DBM HAULAGE LIMITED & FORMER DIRECTOR MARIUS VASILE GHERES

4. Background

The operator DBM Haulage Limited is the holder of a standard national operator’s licence authorising nine vehicles and four trailers granted on the 25 June 2022. The sole director of the company is Dorin Bumb and he is also the designated transport manager. Marius Vasile Gheres was a director of the company up until the 1 November 2023 when his name was removed from the record held at Companies House. On the 28 December 2023 his name was removed from the operator licence record.

On the 23 May 2023 one of the authorised vehicles was encountered by the DVSA and the driver’s tachograph records analysed. The driver on this occasion was Riccardo Coraciuc and it was discovered that he had exceeded the permitted period of four and a half hours driving on the 19 May 2023 by 1 hours and 36 minutes. He had done so whilst removing his tachograph card and continuing to drive so avoiding the infringement showing on the record. Further investigation showed that Mr Coraciuc had also been issued with a replacement driver card by the Italian authorities but continued to use the original card. In interview he said that he had obtained the replacement because he thought he had lost the original but later discovered that he had not.

The incident triggered an investigation by Traffic Examiner Foster who was provided with drivers’ hours and tachograph records for the period from the 1 January 2023 to the 31 May 2023. Ms Foster’s analysis of the records revealed several serious infringements and offences by driver Dragos Motorga which included removal of his tachograph card in, what appeared to be an attempt to avoid the records showing that he exceeded four and a half hours driving time.

Analysis of records relating to director and transport manager Dorin Bumb revealed one occasion when he had exceeded four and a half hours driving by three hours and 40 minutes, two occasions when he had failed to make the required print outs with details at the start of journeys and two more at the end of journeys. He had also failed to keep records of time spent when working as a Director, Transport Manager or in any other capacity.

As a result of the infringements committed by the drivers and in particular those committed by the director Mr Bumb a decision was made to call the operator and former director Mr Gheres to a public inquiry. Drivers Dragos Motorga and Riccardo Coraciuc were called to conjoined driver conduct hearings.

Directions were made and issued with the call-up letter requiring production of evidence of financial standing, evidence of systems for managing drivers including tachograph data for three drivers for at least three months together with documentation relating to maintenance of the authorised vehicles.

5. The Public Inquiry

Mr Bumb attended the inquiry, was unrepresented and accompanied by transport consultant Karol Lukaszuk. Former director Marius Gheres attended and was represented by Mr Davies. Drivers Riccardo Coraciuc and Dragos Motorga attended and were unrepresented. Interpreters for Mr Coraciuc (Italian) and Mr Motorga (Romanian) also attended together with Traffic Examiner Foster.

After explaining how I would conduct the inquiry I heard from driver Mr Coraciuc. He said that he had held his vocational entitlement since January 2020 and had driven HGVs since then in Italy and the UK. He admitted the offences as detailed by Ms Foster and accepted that he had used his original tachograph card when he had been issued with a replacement. He had thought the original was lost and did not realise what he was doing was wrong. He had left DBM Haulage Limited after the offences had been discovered and Mr Bumb had asked him to go. He was now working for an operator in the UK and had not had any infringements brought to his attention. He had two endorsements on his driving record, both were for speeding offences when he was driving a lorry. He was very sorry for what he had done.

Mr Motorga said he had held a vocational entitlement since 1999 and had been driving in the UK for the last three years. He admitted the infringements as set out by Ms Foster in her original statement and said he had not realised how serious the offence of removing a card and continuing to drive was. An addendum report in relation to the operator had been prepared by Ms Foster and this showed that Mr Motorga, who still worked for the operator, had committed some infringements in January and February 2024 but these that were identified from his driver card were all of a relatively minor nature. No action had been taken by the operator in relation to those infringements. However, a missing mileage report had also shown that Mr Motorga had driven without a tachograph card inserted on the 24 and 26 February 2024 in an attempt to disguise insufficient weekly rest. Mr Motorga had accepted that he had done this when interviewed by the operator and had been issued with a final written warning.

Mr Bumb admitted the infringements as set out in the original report from Ms Foster. He said that he had held his vocational entitlement for 22 years and that the current speeding offence shown on his driving record was committed in a car.  The addendum compiled by Ms Foster showed several infringements recorded in relation to Mr Bumb including four occasions when he exceeded four and a half hours driving without taking sufficient rest. On the 3 February 2024 the period was exceeded by 58 minutes and on the 5 February by 29 minutes. No annotation had been made to show the reasons for the infringements and when I asked Mr Bumb for an explanation, he said that on the 3 February he was getting back to base and on the 5 February, he was trying to find a place to stop. His failure to record the time spent doing a walk round check was also a mistake.

As director and transport manager Mr Bumb said that he was trying to do his best to improve. I said that I had looked through the maintenance documents provided and noted that several of the brake tests appeared to have been conducted with unladen vehicles and this was agreed. I said that driver detectable defects were showing at maintenance inspections and Mr Bumb said he had spoken to the drivers about reporting defects. He asked for another chance and promised improvements would be made. He offered to undertake further training if required. Transport consultant Mr Lukaszuk said that no agreement had been reached as yet with Mr Bumb, but he could offer training and advice and help as much as possible to improve compliance levels. I referred Mr Bumb to my powers to revoke the licence and disqualify him and he again asked to be given another chance.

Mr Gheres had submitted a statement prior to the inquiry and confirmed the contents of this document. He said that Mr Bumb was his half brother and the company had been jointly set up in 2016. The relationship between him and Mr Bumb broke down in 2022 and it was agreed in November of that year that Mr Gheres would cease being involved in the company. In return for keeping the business Mr Bumb agreed to transfer ownership in a piece of land to Mr Gheres. As this transfer had not taken place Mr Gheres had remained as a director until November 2023 but played no part in the operation of the business. The promised transfer of land had not taken place after November 2023 and legal action had commenced. This had resulted in a new company being set up, Gheres Limited and the sole purpose of this company was as a vehicle for the transfer to take place. The removal of Mr Gheres as a director in November 2023 on the Companies House record was done by Mr Bumb without the knowledge of Mr Gheres.

Mr Davies said that Mr Gheres had been involved in a separate company MAG Haulage Limited and has had no involvement with the current operator since 2022. He accepted it was a mistake to remain as a director but the purpose in doing so was purely to facilitate the transfer of the land. He drew to my attention the case of Hunterstrong Engineering TA Northover Logistics 2014 (UKUT 373) where at paragraphs 34 and 35 the Upper Tribunal gave guidance in relation to the ongoing duties and options open to those who chose to remain as named directors. He asked me to distinguish that guidance from the current situation in that Mr Gheres has only remained as a director for a very specific purpose and had not had any involvement at all in the day to day operation of the business.

6. Findings and Decision

I will be considering each of the conduct hearings concerning the drivers and Mr Bumb in that capacity separately and will notify them of those decisions accordingly. My findings and decision in these reasons relate to the operator, the transport manager and the former director Mr Gheres.

In relation to the operator, I find that there have been breaches of Section 26 (1) (c) (ca) (e) and (f) of the Goods Vehicles (licensing of Operators) Act, 1995 in that prohibitions and fixed penalties have been issued for maintenance related and driver’s hours faults, and conditions and undertakings relating to those compliance related requirements have not been met.

In deciding what action, if any, to take, I need to balance the negative factors with the positive. I struggle to find positive factors in this case apart from the recent involvement of a transport consultant Mr Lukaszuk and the promises for improvements made by Mr Bumb at the inquiry. On the negative side is the ongoing and serious noncompliance particularly on the drivers’ hours side, the fact that the director and transport manager Mr Bumb was the main offender and the fact that his compliance record showed no improvement and in fact was worse between Ms Foster’s initial investigation and the date of the public inquiry. With reference to Statutory Document 10 issued by the Senior Traffic Commissioner I find that this case falls into the category of Serious to Severe conduct taking these factors into account.

Having made those findings I have to decide whether the operator is fit to hold a licence and in this regard, I have asked myself the question as set out in the case of Priority Freight Limited & Paul Williams i.e. 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? Despite the promises by Mr Bumb to “do better” I am unable to answer this question positively. The failure to analyse records effectively, the ongoing failings in maintenance and the apparent inability on the part of Mr Bumb to manage his own driving hours lead me to the conclusion that I cannot trust Mr Bumb and therefore the operator to be compliant and that as a result the operator deserves to be put out of business.

My order in relation to this licence is therefore to revoke the licence on the ground that the operator no longer satisfies the requirement to be of good repute under Section 27 of the Goods Vehicles (Licensing of Operators) Act 1995. The revocation will take place with effect from the 17 June 2024 to allow time for the business to be wound down.
In addition to the revocation I have decided that this is a case where a disqualification in relation to Mr Bumb is appropriate and proportionate. I make such an order for a period of one year from the 17 June 2024 and direct that it will apply to him holding or obtaining an operator’s licence as an individual, partner in a partnership or a director of a company. I limit the period to one year taking into account that this was the first public inquiry Mr Bumb has been called to.

I also find that Mr Bumb no longer has repute as a transport manager. He has not demonstrated the required ability or attitude expected of a competent transport manager and has not set a good example in relation to his own compliance. Once repute of a transport manager is lost it is necessary to order a period of disqualification and I do so for a period of two years. I make the period of disqualification as a transport manager longer to reflect the extra focus of that role on transport management and compliance. I do not direct specific requirements for rehabilitative measures at the end of that period but do expect Mr Bumb to have completed further training and approach the role with very different intentions if he looks to be appointed in the future.

In relation to former director Mr Gheres, I find that whilst he was wrong to allow himself to be named as a director after 2022, he is not culpable in relation to the compliance failings of the operator. I can draw the distinction suggested by Mr Davies and find that was not a director “on the sidelines” who could step in at any time. There was also nothing brought to his attention that alerted him to the need to take action as a director. He remained on the record for the purpose of the land transfer and for all other purposes was no longer part of the business. I do however record a formal warning against him for the failure to remove his name from the directorship and the licence when he should have done,
John Baker

Deputy Traffic Commissioner

28 May 2024