Authorisation reduced from 40 to 33 vehicles after a string of offences related to not properly recording drivers’ hours
The number of vehicles authorised on the O-licence of Shropshire coach and bus operator Minsterley Motor Services Limited has been reduced from 40 to 33 with effect from December 2, 2016, following a Public Inquiry (PI) before Anthony Seculer, Deputy Traffic Commissioner (DTC) for the West Midlands traffic area. The repute of John Barry Jones as a Transport Manager was marked as ‘severely tarnished.’
Two undertakings were imposed on the licence: a second transport manager, qualified by examination, shall be added to the licence no later than March 31, 2017 and a full audit of drivers’ hours, tachographs and working time compliance shall be obtained from auditors independent of current representation by June 30, 2017 and annually thereafter.
Background
Minsterley Motor Services Ltd is the holder of a Standard International O-licence authorising the use of 40 vehicles from two operating centres in the West Midlands Traffic Area. The licence was granted on April 12, 2002.
The operator received a call-up letter to PI, which was issued on the September 7. The PI took place on October 26, 2016.John Barry Jones, Director and Transport Manager, was also called in respect of his repute/professional competence as a transport manager under Schedule 3 of the 1981 Act. Nine drivers, including John Barry Jones, were called to conjoined driver conduct hearings under section 116 of the 1988 Act.
The Public Inquiry
John Barry Jones, Director, attended the PI on behalf of the operator company, represented by Paul Duncan, transport consultant.DVSA Traffic Examiner (TE), Peter Yarranton, attended to present his PI statement and answer questions arising. Eight drivers attended – the case regarding Mark Stuart Lewis being adjourned to a new date owing to his non-availability.
The Evidence
The evidence against the operator and drivers was contained in the statement of TE Yarranton which was accepted by the operator and drivers. The contents of the statement dated April 28, 2016 are adopted for the purposes of this decision. TE Yarranton’s detailed investigation followed receipt of a driver’s tachograph card in the name of John Barry Jones and an anonymous note stating that drivers were using the card of Mr Jones to extend their authorised driving time. At the conclusion of the investigation, TE Yarranton identified 19 offences from nine drivers, having investigated 17 drivers and 714 tachograph records.
Each of the drivers admitted failing to enter required periods of time by failing to enter the time spent travelling between the operating centre and coaches when acting as ‘feeder’ drivers for drivers either commencing, or finishing, continental tours. As a result of the offences, TE Yarranton was unable to make a full and accurate assessment of the drivers’ working hours.
At the PI, evidence was provided from TE Yarranton, John Jones, in his capacity as Director, Transport Manager and driver, and each of the other seven drivers present.
The operator and drivers all stated (with one exception) that they were unaware of the requirement to record the time spent in cars on their ‘feeder’ journeys to and from coaches.
The operator had kept no records of working time regulation duty hours and failed to ensure that the drivers had attended training on drivers’ hours and tachographs as part of their Driver CPC. In fact, certain drivers stated that they had attended the same module on health and safety on more than one occasion and a module on first aid.
The drivers all categorically denied having used Mr Jones’ driver card in order to extend their driving hours. The operator denied having made his card available to his drivers, and was adamant that he had personally acted as feeder driver on the specific instances put to him when his card was used.
Findings
DTC Anthony Seculer found that the operator had failed to honour the undertaking to:
-Ensure that the laws relating to the driving and operation of vehicles used under the licence would be observed; and
-Observe the rules on drivers’ hours and tachographs (section 17(3)(aa) of the 1981 Act).
-The operator and drivers have been issued with prohibitions (section 17(3)(c) of the 1981 Act).
The DTC also found that TE Yarranton had good cause to question the use of Mr Jones’ driver card, having particular regard to: The responsibilities of a sole Director and Transport Manager restricting Mr Jones’ time for driving duties; The driving duties occurred at evenings and in the early hours of the morning on one occasion. The DTC expressed particular concern about the June 23/24, when according to Mr Jones and the driver Bowen, Mr Jones’ card was inserted into Plaxton Panther 2-bodied Volvo B9R, ‘YN12 CRZ,’ at 2034hrs at the M6 Toll services. Mr Jones is then said to have driven at least half an hour to Cheshire, unloaded the passengers and returned to his home before his card was withdrawn from the vehicle unit of ‘YN12CRZ’ at 0248hrs. Driver Thomas then inserted his card at 0255hrs and neither Mr Jones nor Mr Bowen had any recollection of the circumstances of the journey; and Mr Jones had reported this driver card to the DVSA as stolen, yet his initial response to TE Yarranton was that it had been damaged in the washing machine.
The DTC said: “It is settled law that the more serious the allegation, the more cogent the evidence to prove the allegation needs to be.
“Widespread falsification of driving records at the behest of the operator is a most serious allegation which is likely to result in revocation/disqualification for the operator and transport manager. In this case, the drivers were consistent and unequivocal that they had not used Mr Jones card to extend driving hours.
“The operator was adamant that he had made each of the journeys put to him by TE Yarranton. I accept the evidence given and I deal with the operator and the drivers on the basis of a failure to keep records rather than deliberate falsification.”
Considerations
Considering the evidence, the DTC said: “Failing to keep full and accurate records of all driving and duty time prevents operators and transport managers from carrying out their responsibility to ensure that the rules relating to drivers’ hours and tachographs are observed.
“This is a clear breach of the undertaking made when obtaining the O-licence and poses a risk to the safety of passengers and road users. TE Yarranton stated that it was credible that the drivers were not aware of the need to record their feeder journeys but that does not make it acceptable. The ‘Skills Coaches’ case was a well-publicised decision of the European Court which should have been embedded in the minds of the drivers. Professional drivers have a duty to ensure that they keep their knowledge up-to-date and accurate.
“As for the operator and John Jones as Transport Manager, I find that the training provided for drivers was wholly inadequate. A responsible operator/transport manager should have ensured that the Driver CPC training was relevant to the work carried out by the company.
“By his own admission, Mr Jones has failed to keep-up-to-date himself, failed to ensure that working time records were kept and his repute as a Transport Manager is ‘severely tarnished.
“I weigh in the balance the following positive features in determining appropriate action against the operator: it does not have previous non-compliance history; the number of offending drivers and offences was a relatively small proportion of the drivers and records investigated; and the operator/Transport Manager is now obtaining comprehensive analysis and reports on drivers’ hours and infringements from TruTac. The onus is firmly on the operator to ensure that those reports are properly reviewed and acted upon, paying particular regard to hours and speeding infringements.
“I also note that Mr Jones’ son and daughter are now actively involved in the business and are committed to taking the operation forward in a compliant manner.”
Driver Conduct Decisions
Each driver was given credit for having attended the PI and co-operated with the investigation.
After considering the evidence and the representations, the DTC made the following decisions against the individual drivers:
-Richard David Tonge – having been found not to have kept full and accurate records of work, the driver was issued with a formal warning.
-Phillip Edward Lewis – found not to have kept full and accurate records of work and to have taken insufficient rest on August 11, 2015. The driver was issued with a formal warning.
-Michelle Isaacs – found not to have kept full and accurate records of work and issued with a formal warning.
-Kevin Phillip Jones – found not to have kept full and accurate records of work. The driver is issued with a formal warning.
-George Stanley Bowen – failed to keep full and accurate records of work and has a conviction for using a hand-held mobile phone in a vehicle on July 3, 2014. This offence occurred in a commercial vehicle, but the DTC accepted Mr Bowen’s explanation that he was parked up, waiting for passengers at the time. In the circumstances, the DTC reduced the period of suspension from the starting point in the Senior TC’s Statutory Document No. 6 to one of seven consecutive days. The suspension is to take effect from 0001hrs on Monday, December 5, 2016.
-David Noel Evans – found not to have kept full and accurate records of work and was issued with a formal warning.
-Christopher Jeffrey Thomas – found not to have kept full and accurate records of work, exceeded 10 hours driving time and not to have taken sufficient rest. The driver was issued with a formal warning.
-John Barry Jones – the Transport Manager and director was given a formal warning as a driver, due to not keeping full and accurate records of work.
