Determination for LEO.AL.AUTO LTD and transport supervisor DARREN BOYCE-SMITH


0.1 LEO.AL.AUTO LTD: OH2010697

0.2 TRANSPORT MANAGER DARREN BOYCE-SMITH

1. PUBLIC INQUIRY IN BRISTOL 18 OCTOBER 2021

2. BACKGROUND

Leo.Al.Auto Ltd is the holder of a typical worldwide items car operator’s licence authorising using three autos and three trailers from working centres on the Marchwood Industrial Property in Southampton. The only real director is Mr Algimantas Leonickas. The transport supervisor is Mr Darren Boyce-Smith. The licence began on 4 June 2018.

On 26 June 2021, Site visitors Examiner Andrew Dean encountered CN64NKR at DVSA’s Chilcomb verify web site. The motive force was Illes Popovics. Checks recognized that the car’s MOT had expired. Mr Popovics was utilizing Mr Leonickas’ drivers card. There have been drivers hours offences. Mr Dean carried out a follow-up investigation and located additional shortcomings

  • No driver coaching carried out internally. Transport Supervisor had no copies of Driver CPC certificates for any drivers.

  • TM had no copies of any driving licences, driver CPC playing cards, driver tachograph playing cards and no driver licence checks had been carried out.

  • Mr Leonickas DCPC expired in September 2019 however he had pushed repeatedly since that point.

  • The final drivers hours obtain was accomplished in August 2020. Twenty-eight days of driver obtain from the roadside encounter present a number of driving with out a break and inadequate day by day rests.

  • There was no proof of a disciplinary course of.

  • Working Time Directive (WTD) was not monitored.

  • No ahead planner exhibiting scheduled PMIs, tacho calibration. There have been additionally no PMI data accessible to analyse.

  • The operator was not signed as much as VOL or OCRS.

The operator responded with assurances as did Mr Boyce-Smith. Nonetheless, the findings of the Site visitors Examiner had been so severe that I made a decision to name the operator and transport supervisor to public inquiry.

3. THE PUBLIC INQUIRY

Mr Algimantas Leonickas attended the general public inquiry accompanied by his son, Mr Otas Leonickas (who acted as an interpreter) and enterprise administrator Valdemara Leonickiene. Additionally current was transport supervisor Darren Boyce-Smith.

Proceedings had been recorded and a transcript may be made accessible if required. I file right here solely the related components of the proof. In making ready this choice, I’ve taken as reference my public inquiry bundle, the operator’s compliance paperwork, my notes and I’ve listened to the digital recording.

I famous that no interpreter had been requested. Otas Leonickas confirmed that he was content material to interpret. I indicated that I’ll adjourn if I felt that the equity of proceedings was being impaired. Within the occasion, that didn’t come up and I used to be grateful for the help.

Algimantas Leonickas advised me that he had began driving automobile transporters however needed to be his personal boss so he began the enterprise. The work was containers.

The drivers had their very own restricted firms and had been employed via them. I identified that was not lawful and why.

Mr Boyce-Smith advised me that he had labored as a driver for 20 years. He had then certified as transport supervisor in two phases. He had labored break up between driving and transport administration roles for a number of years. He was at present employed by SJG Logistics, who had been additionally the acknowledged upkeep supplier. He was transport supervisor for 3 different small operations, one among which was winding down and shifting to Spain.

I took Mr Boyce-Smith to the Site visitors Examiner’s report at web page 53 of my bundle. The Examiner had visited Mr Boyce-Smith at his flat which is the place the data had been stored. Mr Boyce-Smith mentioned that he was retaining involved with the operator however accepted he had change into complacent and let issues slide. He hadn’t realised the extent of that till prompted by the DVSA investigation. The Examiner’s discovering that autos and drivers playing cards had not been downloaded for a 12 months was accepted. Covid was an element however he might have discovered a method spherical it. [Redacted]. He had not checked the drivers’ CPC {qualifications} nor their driving licences.

Upkeep was by SJG. The operator had sometimes used Sparks Commercials as a result of communication breakdowns. The operator had solely given SJG two weeks’ discover of the current want for an MOT and Mr Boyce-Smith had defined to him that was unacceptable. I famous that Sparks carried out brake checks whereas SJG not often did so. Mr Boyce-Smith advised me that he would be certain that it was executed each different PMI in future. I requested: why “each different”? Mr Boyce-Smith appeared oblivious to the requirement for each PMI to cowl each merchandise inside the MOT. On checking once more, there had been just one brake check undertaken throughout all three autos in six months. Mr Boyce-Smith had no reply to not having recognized that SJG had merely put a line via the part on brake efficiency. I additionally requested for remark as to why Sparks Commercials inspections recognized quite a few vital defects whereas SJG not often discovered something. Mr Boyce-Smith mentioned that Sparks had over-stated the defect in relation to a corroded brake disc.

Mr Boyce-Smith referred me to the advance plan he had put in place for the reason that DVSA investigation. He had undertaken a transport supervisor refresher course. Tachograph evaluation was occurring weekly. There was now a wall-planner.

I requested about Mr Popovics. He had been beforehand employed however there had been issues and he had suggested Mr Leonickas to not use him once more. He had not been conscious that he had been used on 26 June. Mr Leonickas had left his driver card on a tray on the sprint and Mr Popovics took it upon himself to make use of it.

I requested Mr Algimantas Leonickas how he had been launched to Mr Boyce-Smith. It had been via SJG and he got here really helpful. He had initially met with him each week however after some time it turned much less frequent, possibly as soon as a month or three weeks. I requested him why his tachographs had not been downloaded from August 2020 till July 2021. He had been really helpful to purchase a obtain device however he thought that was the transport supervisor’s job. He had now purchased the device. He accepted that he had not overseen the transport supervisor appropriately. That was his mistake. He had been too focussed on doing the deliveries.

Ms Leonickiene advised me that she had just lately began as an administrator working about 10 hours every week. It was she who had ready the operator’s paperwork for the inquiry – and I counseled her on their order.

Mr Leonickas advised me that the corporate couldn’t cowl its prices with just one truck. Revocation can be the tip of the enterprise. I reserved my choice.

4. CONSIDERATION AND FINDINGS OF FACT

Mr Darren Boyce-Smith accepts, fairly merely, that he did nothing as transport supervisor over the interval of 11 months. It might be far longer; the operator’s CPC expired in September 2019, lengthy earlier than Covid and lockdowns and Mr Boyce-Smith was blissfully unaware. That he has created an motion plan over the previous weeks and that the job now appears to be getting executed to a primary degree is a constructive however it can’t offset the injury executed by a 12 months of full inaction. Even now, he had didn’t determine the elemental shortcomings within the PMI studies notably the dearth of brake testing of any description on all bar one inspection.

Mr Boyce-Smith has for a interval of no less than eleven months been a transport supervisor in title solely. He spoke virtually as if to chastise Mr Leonickas for what he noticed as Mr Leonickas’s failure to provide the upkeep supplier sufficient time to rearrange an MOT, failing fully to see that it’s the transport supervisor’s job to make sure that such actions are deliberate and executed. As a transport supervisor, Mr Boyce-Smith is fully ineffective. No refresher course can, in two days, imbue a transport supervisor with the mandatory ardour for compliance. He couldn’t even take the time to compile the operator’s public inquiry bundle, hopelessly referring me to a doc that was not contained therein. I’ve no hesitation to find that Mr Boyce-Smith has forfeit his good reputation as transport supervisor and requires a time period away from the function to replicate upon his personal failings previous to any re-entry to the business. Happily for him, as a professional HGV driver, he shouldn’t at present be with out well-paid employment.

Mr Leonickas allowed his driver card for use by one other driver. That may be a reckless act. He accepts that he didn’t supervise his transport supervisor. He allowed his time to be disproportionately spent on delivering for his prospects on the expense of compliance. However he did so virtually unwittingly moderately than in any aware disregard for compliance.

Drivers are employed via their very own restricted firms. Mr Leonickas advised me this overtly and I don’t consider he was conscious that it’s illegal. Because the RHA fact-sheet on the matter states

“Except they’re an owner-driver, it is extremely uncommon for a lorry driver to be legally “self-employed”.”

The place of self-employed drivers was thought-about just lately by the Higher Tribunal within the case UT/2019/54 Bridgestep Restricted. It was a case the place the drivers had fashioned their very own restricted firms. In compliance with HMRC guidelines for being self-employed, the drivers had been afforded vital freedoms in how the work was organised. To do in any other case would imply that the drivers had been staff. That is what the Higher Tribunal needed to say concerning the matter:

  1. We’re glad that the TC’s determinations concerning the firm’s preparations with its drivers are past criticism. This was a nasty case wherein the corporate and transport supervisor had made a aware choice to enter into an association with the corporate’s drivers which was extremely questionable if not a sham. The explanations for doing so had been anti-competitive being as they had been, involved solely with the price of using the drivers and by lowering that price, gaining a aggressive benefit over different compliant operators. While the overwhelming majority of recent operations make the fitting choice to make use of their drivers, paying nationwide insurance coverage, pension contributions, vacation and illness entitlement, these Appellants didn’t achieve this. The consequence of that call was that the corporate and the transport supervisor felt unable to provide any instruction to drivers whether or not or not it’s in relation to route planning or in any other case and as a consequence, had been unable to have steady and efficient administration of the transport operation. That’s plain and apparent from the contract of providers that was later offered to the TC with a number of the clauses set out in paragraph 13 above. In brief, the corporate and transport supervisor had abdicated their duty for guaranteeing that the transport operation was compliant and protected with the intention to lower your expenses. This was the actual mischief that was revealed through the public inquiry.

  2. The seriousness of the conduct of the Appellants together with their failure to rectify the place within the 5 months main as much as the general public inquiry meant that each Appellants rightly misplaced their good reputation and that was a proportionate response within the circumstances. The corporate deserved to be put out of enterprise and in view of its failure to vary its preparations with its drivers, it was fully correct that the licence be revoked.

While the enterprise is constructed as it’s, with drivers employed via their very own restricted firms, I can’t reply within the constructive the query “Is that this an operator that I can belief to be compliant sooner or later?”. When the reply to that query is “No”, it’s tough to seek out how it’s not mandatory to place the corporate out of enterprise. As at present constructed, the great reputation of the operator is discovered to be forfeit.

Nonetheless, this is a matter which solely turned obvious on scrutiny of financial institution statements and was not within the call-in letter as a result of it was not recognized prematurely. It is just truthful that I give the operator the chance to right issues. I acknowledge that can’t be executed in a single day however it must be executed at tempo. If it may be demonstrated that drivers are “on the books”, with tax and nationwide insurance coverage deducted at supply, vacation pay in place and pension contributions made as acceptable, earlier than the tip of a interval two months from at this time, I’ll contemplate that good reputation has been re-established and put aside the revocation choice.

The corporate allowed its transport supervisor to get away with doing nothing. Both instantly or not directly in consequence, a driver was driving utilizing one other’s card. Drivers hours offences had been dedicated. Upkeep was sub-standard in that there was no brake testing. A car was in use with out an MOT. A driver has pushed with out a legitimate CPC. I discover that Part 26(1)(ca) and (1)(f) are made out. I connect vital weight given the dearth of administration management to stop these issues and that the director was instantly implicated in two of them.

5. DECISION

Pursuant to a discovering of lack of good reputation, Darren Boyce-Smith is disqualified from performing as a transport supervisor within the UK or any EU Member State with quick impact and till 20 October 2023. Amy software to re-enter the business would require a transparent demonstration that he has acquired a real thirst for compliance.

Pursuant to a discovering beneath Part 27(1)(a), lack of skilled competence and Article 13 of EU Regulation 1071/2009 (as adopted in to UK legislation), I grant a interval of grace of two months for the operator to discover a new transport supervisor.

Pursuant to a lack of good reputation, primarily via the improper preparations with drivers, the licence is revoked with impact from 1 January 2022. If good reputation is re-established by an illustration that drivers are correctly employed, offered to my workplace by 20 December 2021, this choice will probably be put aside.

Pursuant to findings beneath Part 26(1)(ca) and (1)(f), the licence is curtailed to 2 autos for the calendar month of January 2022. The car to be faraway from the licence should be notified to my workplace prematurely and I order, by advantage of Part 26(6) of the Act, that it not be used beneath authority of any operator’s licence through the interval of curtailment.

Kevin Rooney

Site visitors Commissioner

20 October 2021



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