Aggressive operator disqualified for two years

An operator who behaved in an aggressive manner towards a DVSA vehicle examiner, leaving him “scared for his life”, has been disqualified.

J&P Scaffolding director Jacek Pawlaczyk has been banned from holding any type of licence in any traffic area for two years after traffic commissioner (TC) for the West Midlands Nick Denton heard evidence that his behaviour was so threatening the examiner had to plead with a maintenance provider not to leave him alone with him.

At a public inquiry in Croydon, the TC heard how the examiner had visited the haulier’s premises and found some shortcomings including high MoT final failure rates, excessive intervals between safety inspections and use of an unauthorised operating centre.

Although Pawlaczyk started the visit with a pleasant manner, his mood changed when the shortcomings were pointed out.

In evidence, the examiner said the operator had shouted, pointed his finger in his face and blown smoke in his face. He said he panicked and began shaking and a maintenance provider arrived to calm Pawlaczyk down. He then had to leave, despite pleas from the examiner to stay. The examiner was later signed off work with stress.

Pawlaczyk’s solicitor Charles Stansfield accepted his client had been upset by the encounter with the DVSA, but there had been no allegation of physical violence or verbal abuse.

Denton said he had two different versions of the encounter between the two men, but given that he had known the examiner for several years and found him to be reliable and level-headed and not in the habit of making wild accusations, he had no hesitation in believing his version of events.

“It is not acceptable for DVSA examiners to face aggressive and threatening behaviour from operators. I accept that Mr Pawlaczyk did not physically assault the examiner [there was no claim that he did], but I am clear that Mr Pawlaczyk’s shouting, smoking, and close proximity finger-wagging did intimidate him and caused him to fear what might happen next. An operator who indulges in such behaviour is not fit to hold a licence,” he said.

Pawlaczyk’s company O-licence was also revoked.

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Check driver employment status, warn solicitors

Driving a truck

Operators should consider checking the employment status of their drivers and ensure they are not avoiding paying tax by hiding behind a self-employed status, according to law experts at Shulmans LLP.

Following the senior traffic commissioner (TC)’s recent update of statutory guidance relating to employment status, partner Jim Wright and road transport specialist Richard Wadkin warned that TCs are likely to refer companies to HMRC if they are suspicious.

They said HMRC is concerned that drivers are claiming to be self-employed when they are not: “Despite changes to the tax regime since 2015, being self-employed still provides a taxable benefit, as opposed to being an employee.

“Sometimes this taxable benefit is split between the O-licence holder, by way of a lower rate of pay to the driver, or to the benefit of the driver. In either instance, however, HMRC sees that the use of so-called self-employed drivers creates a loss of tax revenue.”

The senior TC’s statutory document number 5 states that it will be “rare” for a driver to be genuinely self-employed, unless they are an owner-driver.

HMRC FINES

Wright and Wadkin said flouting the rules could mean an operator is not of good repute and may lose its licence. It could also be hit by costly fines from HMRC: “Prudent transport managers and O-licence holders may therefore wish to consider undertaking an audit and identifying any driver, who is not an owner-driver, and for whom PAYE is not operated in full.

“It should also be noted that the audit mentioned above needs to include all driver labour inputs, including where the drivers are supplied via a third party such as a temporary labour provider or agency.”

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