Decision

Written decision for Entyre Transport Limited (OK1112632)

Published 20 November 2020

In the South Eastern and Metropolitan Traffic Area.

Decision of the Deputy Traffic Commissioner.

Public Inquiry heard at Ivy House, Ivy Terrace, Eastbourne on 2 November 2020.

1. Decision

Breach of Section 26(1) (c) (ca) and (f) of the Goods Vehicles (Licensing of Operators) Act 1995 found

Licence curtailed to five authorised vehicles with effect from 00.01 hours on 16 November 2020 pursuant to Section 26 of the Goods Vehicles (Licensing of Operators) Act 1995. Repute of operator severely tarnished.

Repute of transport manager Parvinder Athwal retained but severely tarnished.

Undertaking for audit of transport operator conducted by Transport Consultant Rick Nugent in six months to be sent to the Office of the Traffic Commissioner.

Request that DVSA undertake a follow up investigation in 9 months.

Application to increase the number of authorised vehicles to nine refused

Applications to increase the number of authorised vehicles kept at Hanson Aggregates, Ardingly Depot, College Road, Haywards Heath to five and to reduce the number to two at Tarmac limited, Shoreham Wharf, Basin Road South, Portslade, granted.

2. Background

The operator Entyre Transport Limited is the holder of a standard national licence granted on the 17 September 2012 authorising seven vehicles. Applications were made on the 19 December 2019 to increase the authorisation to nine vehicles and on the 10 July 2020 to vary the number of vehicles authorised at the nominated operating centre at College Road, Haywards Heath to 5 vehicles and to reduce the authorisation at Basin Road South, Portslade to 2 vehicles. These applications were included for consideration at this public inquiry.

The director of the company is Parvinder Athwal and she is also the transport manager having held those roles since the licence was issued. Mrs Athwal’s husband Gurdial Athwal was a director of the company from the 6 April 2015 until the 1 December 2019.There is no previous adverse compliance history.

Following the variation application to increase the number of authorised vehicles a maintenance investigation was carried out on the 17 February 2020 and returned as “mostly satisfactory”, Driver detectable defects were being found at preventative maintenance inspections, improvements were required in relation to recording of repair work undertaken and advice was given concerning roller brake testing.

On the 15 February 2019, an authorised vehicle was stopped as part of a routine check and it was found that the driver had withdrawn his driver card on three occasions and continued to drive thereafter. This finding prompted an investigation by the DVSA and data for drivers for the period between 1 January 2019 and 30 April 2019 was requested. Analysis of this data revealed driving by a person named Jasvir Singh Sidhu whose home address was in West Yorkshire. Mr Athwal said that this driver had stayed with his brother “for a while” and had done some driving – this proved to be false. Mrs Athwal said she could not recall meeting this driver or paying him any wages. After further investigation it was revealed that another driver Kundan Shakya had been using the driver card belonging to Mr Sidhu. Mr Shakya said that he had been told to do so by Mr Athwal. Further enquires uncovered a wide range of offences committed by director Gurdial Athwal and other drivers employed by the operator. The full details of the offences are contained in the public inquiry report prepared by Traffic Examiner Clarke. It was her conclusion that Mr Athwal, whilst a director of the company, was complicit in false record offences being committed by other drivers as well as committing many offences himself.

In respect of the operator the Traffic Examiner highlighted her concerns that there had been inadequate checks undertaken in relation to drivers’ hours compliance, and there was a deficient system for checking driving licence and CPC records for drivers.

In light of the concerns the operator was called to public inquiry and four drivers including Mr Athwal were called to concurrent driver conduct hearings. The case was heard on the same day as inquiries in relation to Kumari Transport Limited and Jays Transport Limited who were linked through some of the drivers and connections between the directors.

3. The Public Inquiry

Mrs Parvinder Athwal attended the public inquiry and was represented by Mr Backhouse. Transport Consultant Rick Nugent also attended. I heard the driver conduct evidence first in relation to four drivers including Gurdial Athwal and my decisions in those cases will be notified separately. I was told that all four drivers had been prosecuted and sentenced at court for the offences.

3.1 Evidence

Traffic Examiner Clarke presented her evidence and confirmed the content of her original report. She said that at the time she compiled her report the operator did appear to have a system in place for analysing the data from the driver’s cards but had not been downloading the data from the vehicles units. With the system that was in place many offences had not been detected.

In advance of the hearing she had been supplied with data for the period between 1 June 2020 and 30 September 2020 Whilst on an initial analysis of the data a number of issues were raised, Ms Clarke concluded that the issues had been answered adequately or were being addressed by the operator. She concluded this report with some positive comments in relation to the tachograph compliance regime in place now and confirmed to me that these reflected her current view.

Mrs Athwal gave evidence and outlined the background of the company and her role within it. She had obtained her CPC qualification in 2012 and worked as the transport manager and a director since. In 2016 her son had been born and he has several physical disabilities which has required her to spend more time caring for him. As a result, she “let the business go” and relied more on her husband to look after this as he wanted to help. She said that she had no idea what was going on in terms of offending until the DVSA investigation revealed the problems to her.

Mrs Athwal said that she was now able to devote more time to her business role as all her children were in education and she has a team of people supporting her son who has special needs. She has help on the compliance side from Mr Nugent and it is her intention to continue with his assistance for the next six months. She outlined some of the compliance safeguards now in place including two drivers who were auditing walk round checks for her and a tightened disciplinary process for drivers. She was also considering investing in digital systems to allow remote oversight of drivers’ hours and walk round check compliance. She did not feel it was necessary to employ an additional or replacement transport manager and was confident she would be able to fulfil this role herself.

Mr Nugent said he had prepared an initial report and audit which had been sent to me. His opinion was that Mrs Athwal was enthusiastic and willing to learn and wanted to “get things right”. His intention is to support her to do this and he expected sustained improvements.

Mr Backhouse submitted that I can be confident that this operator can be trusted, and the licence should be allowed to continue. Mr Athwal was the problem, and he is no longer involved in the business other than as an occasional driver. He outlined the consequences of regulatory action that I may consider taking but asked me to consider whether I needed to do so.

After this case had concluded I heard the inquiry in relation to Kumari Transport Limited. Under normal circumstances this would have been a concurrent hearing but the restrictions on the number of people who can be in the hearing room meant that it was consecutive. During that hearing it was highlighted that Parvinder Athwal had been transport manager for that operator from 6 August 2018 when the licence was granted until she was taken off the licence on the 12 February 2019. During the hearing for Entyre Transport Limited I asked Mrs Athwal about the connections between the companies and she said that there was no family or business link. A vehicle had been sold from Entyre Transport to Kumari and one of the drivers Kundan Shakya had worked for both companies (this was evident from the driver conduct hearing for that driver when representatives from both companies were present). Mr Shakya has been making false records by using a driver card belonging to another driver. Traffic Examiner Clarke also said that Mrs Athwal had not told her that she had been the transport manager for Kumari Transport Limited.

Immediately after the hearing I contacted Mrs Athwal through Mr Backhouse and she responded by saying that she had been the transport manager for Kumari for the period from grant until 4 November 2018. Emails from the director and transport manager of Kumari Transport which were supportive of this were attached to her reply. It appeared that between 4 November and 12 February 2019 she had been kept on the DVSA record but was not in fact in post. She said that she did not disclose this detail to me because she was not asked specifically about it. She did not comment on her failure to inform Traffic Examiner Clarke. The offence details for Kundan Shakya span from the 6 June 2018 when he was working for Entyre Transport Limited to the 20 January 2019.

4. Findings and Decision

The offences committed by the drivers, and in particular by Gurdial Athwal are at the most serious end of the scale of drivers’ hours offences. Mr Athwal was at the time of the offences a director of the company and I agree with the Traffic Examiner that there is sufficient evidence to find that he was complicit in aiding and abetting other drivers to commit offences. As far as Parvinder Athwal is concerned, whilst I have sympathy for her in respect of the difficulties she experienced with the care of her son, I cannot overlook the fact that she neglected her transport manager role to the extent that she did. She had alternatives she could have explored, such as obtaining the help of a transport consultant or employing an additional transport manager. It is also a fact that she became the transport manager for Kumari Transport Limited for a period of three months which was an additional role at the time she was experiencing the difficulties she outlined. She appears not to have undertaken that role in any meaningful way at a time when serious offences were being committed by one of their drivers. It also counts against her that she failed to be open with Ms Clarke and with me as to her links to that operator.

On the positive side of the balancing exercise are the improvements in compliance rates detailed by Mr Nugent and the corresponding supportive comments from Ms Clarke. It is also the case that this is the first experience the operator has had of a public inquiry and the maintenance findings were mostly satisfactory.

There have been breaches of Sections 26 (1) (c) (ca) and (f) of the Goods Vehicles Act, 1995 in this case. As a result of these breaches and my findings detailed above I have to ask myself the question 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? My response is to say that the changes now made allow me to answer in the positive, but it is only just and a decision I have considered and balanced very carefully. The behaviour of the operator and of Mrs Athwal as transport manager in the past cannot be ignored when considering the likelihood of compliance in the future. The repute of the operator is severely tarnished as this is a borderline case between allowing the licence to continue and putting the operator out of business. Mrs Athwal’s repute as a transport manager is retained but this is also marked as severely tarnished based on my findings detailed above.

These were deliberate acts committed by the then director which compromised road safety and he also caused further offences by other drivers. The absence of sufficient oversight by the transport manager was a compounding factor. I conclude therefore that this case is in the serious to severe category as explained in Statutory Document 10 issued by the Senior Traffic Commissioner. My decision is to order curtailment of the licence to five authorised vehicles with effect from the 16 November 2020. It follows that I refuse the application to increase the number of vehicles authorised to nine. I agree to the change of operating centre arrangements as applied for.

I have not time limited the curtailment because I believe a reduction in fleet size is a proportionate and reasonable order bearing in mind the severity of the case and the need to send a clear message to this operator and to others that the manipulation of tachograph records and allowing the commission of other infringements will be dealt with seriously. An application can be made to lift the curtailment but, in my view, there will need to be a significant period of sustained compliance before this will be appropriate.

Mr Nugent told me that he will be conducting an audit of the transport operation in six months and an undertaking was offered for a copy of this audit to be sent to me when it is complete. I agree to this undertaking.

I also request that the DVSA conduct a follow up investigation in nine months to determine whether the promised compliance levels have been sustained.

John Baker

Deputy Traffic Commissioner

6 November 2020