Decision

Written decision for Michael Dunn & Partners (PM0002209)

Published 8 October 2020

In the Scottish Traffic Area

Written decision given 5 May 2020 following a Public Inquiry on 4 March 2020.

In the course of the Public Inquiry Mr Michael Dunn Junior (Mr Dunn), one of the partners of Michael Dunn & Partners and the Transport Manager, accepted the findings of Mr Sweetin set out in his report (DVSA Traffic Examiner) that:

1. one of the drivers, Paul Burke, who worked on a part-time basis, had carried out work for another operator that had meant that Mr Burke had not complied with driver’s hours regulations such as failing to take an appropriate weekly rest, and failing to return tachograph records
2. although the operator had issued infringement sheets for missing tachograph sheets the operator had not addressed the underlying reasons why drivers were failing to return record sheets
3. there was no system for checking digital driver cards
4. there was no system for ensuring compliance with the Working Time Directive
5. there was no induction for part-time or casual drivers
6. there were issues with maintenance – in the last 2 years there had been 7 encounters with the DVSA that had resulted in 6 prohibitions – a prohibition rate of 86%. All these prohibitions post-dated the Public Inquiry that the operator had attended on 20 November 2017 when the Traffic Commissioner reduced the vehicle authority from 15 vehicles to 13 vehicles because of issues with maintenance. The prohibitions covered issues relating to brakes, serious underinflation of a tyre and inadequate retorquing of a wheel

My main concern was Mr Dunn’s conduct towards Mr Sweetin. Mr Dunn was uncooperative in arranging a meeting to enable Mr Sweetin to investigate. When Mr Sweetin was able to attend the operator’s premises Mr Dunn raised his voice and became aggressive to Mr Sweetin when Mr Sweetin asked about how drivers were paid. Mr Sweetin formed the clear impression that by restricting Mr Sweetin’s access to documents Mr Dunn was trying to conceal matters. Mr Sweetin spoke to fellow DVSA colleagues and was informed that Mr Dunn was normally hostile to DVSA employees. Mr Dunn explained that he had been under pressure, that he had not meant to be uncooperative and that he had apologised in writing if he had been aggressive towards Mr Sweetin.

Mr Docherty, solicitor on behalf of Mr Dunn, offered two undertakings:

1. to provide an audit from Mr Alan Campbell, transport consultant, on maintenance issues after the operator had an opportunity to allow Mr Martin McDowell, a former DVSA vehicle inspector, to raise maintenance standards

2. to provide an audit on driver’s hours

Mr Docherty suggested that the audits should take place after 6 November 2020 to enable the operator to demonstrate that changes had been made and were effective.

I note that Mr Dunn did take prompt steps to deal with issues raised by Mr Sweetin’s inspection. While it is disappointing that this operator should be back at public inquiry after only 2 years I am satisfied that if this operator is given a final chance it could be a compliant operator.

I gave serious consideration to revoking the operator’s licence and taking away Mr Dunn’s repute as a transport manager because of Mr Dunn’s conduct towards Mr Sweetin. As Mr Sweetin said in his evidence, he was a very experienced Traffic Examiner and was, therefore, able to cope with Mr Dunn’s behaviour. Mr Sweetin pointed out that other DVSA employees who might be younger or who might have less experience would have found Mr Dunn’s behaviour challenging.

DVSA employees are entitled to expect co-operation and civil behaviour from operators and transport managers: Mr Dunn’s behaviour was unacceptable. Mr Dunn’s behaviour put the operator’s licence and Mr Dunn’s repute as a transport manager in jeopardy.

Given the exceptional challenges facing the industry at the moment I have decided to draw back from taking action against the operator’s licence and Mr Dunn’s repute as a transport manager. I am prepared to give Mr Dunn a final chance to demonstrate that he has turned the operation around and that he has learned that his behaviour to Mr Sweetin was unacceptable.

I am prepared to accept the two undertakings offered by Mr Docherty to submit audits:

1. by Mr Alan Campbell transport consultant showing the operator’s compliance with the requirements of the operator’s licence in relation to maintenance
2. by a suitable professional organisation or transport manager showing the operator’s compliance with the requirements of the operator’s licence in relation to tachographs and driver’s hours.

Both audits are to be carried out no earlier than 1 November 2020. The audits are to be submitted to this office by 5 pm 4 December 2020.

I issue the operator with a final warning that it must comply with its obligations under the licence. I warn Mr Dunn that his repute as a transport manager has been tarnished and that if there is any further issue with his behaviour towards the DVSA his repute is at risk.

Hugh J. Olson

Deputy Traffic Commissioner for Scotland

5th May 2020