Appeal against PSV O-Licence disqualification lost after drivers’ hours and tachograph offences
Dundee-based Kevin McDonald, trading as Rivertay Executive Travel, has lost his appeal against his two-year disqualification from holding a PSV O-Licence, after his five-vehicle international licence was revoked by Traffic Commissioner (TC) Joan Aitken.
The disqualification was made following drivers’ hours and tachograph offences. Evidence was given by a Traffic Examiner (TE) that an analysis of tachograph records showed that there were many instances of missing mileage ranging from 10km to 422km, 1461km in total.
There were numerous instances of exceeding 4.5 hours driving without the required break; and numerous instances where there was no record of how the driver got to the vehicle.
Insufficient daily rest had been taken by number of drivers. There were five journeys where Mr McDonald had failed to make manual entries of his time when driving.
Mr McDonald said that he should have acted more on Transport Manager (TM) Isabel Armstrong’s findings.
He accepted that there not been a TM since Ms Armstrong stopped performing the duties in June or July 2014. He realised it was a serious matter not to have a TM and that it was essential for the licence.
He had advertised to get a TM but never heard anything. He thought about going on a course. He did sit the CPC exam in September 2015 and passed one part. He had been guided by transport consultants and had been let down by not getting all the information he needed. He still intended to pursue being his own TM.
In her decision, the TC said that it was very clear that Mr McDonald failed to heed advice given to him by his TM; he set his face against implementing her advice; he did not heed the advice of the TE and did not put his house in order; he engaged the services of transport consultants ostensibly to give himself some veneer of doing it right, but it was only veneer because he did not even look at what they produced for him; he did not do anything about the infringements which persisted [route one/Court Report/13 July 2016].
For Mr McDonald, Tom Docherty argued that the TC had failed to take into account that a new TM had been nominated before she gave her decision.
Dismissing the appeal, the Tribunal said that the TC could not be said to have been wrong to impose a two-year disqualification order. She took a very dim view of an operator who did not himself have professional competence who thought he could stop seeking a TM once his initial attempts had come to nought, and who had previously chosen to ignore the advice of a TM.
The TC was not wrong to place significant weight on those features of the case. They failed to see how a nomination of a new TM residing at the opposite end of the country made four months after the conclusion of the Public Inquiry could have made a difference when Mr McDonald had already been without a TM for some 18 months.
The requirement for a professionally competent TM was an integral part of how the regulatory scheme sought to ensure safe public transport operations.
