[2024] UKUT 398 (AAC)

The letter stated that about a month after Mr Saleh was appointed, Miss Kufandirori wanted to increase the authorisation to four vehicles – but, the letter states, after requesting financial information, Ms S “could see that [Miss Kufandirori] was not in a position to apply for this increase”;

The letter said that Mr Saleh advised Miss Kufandirori against making the application on three occasions, due to not having enough financial capital in the business; he did, however, advise that she increase to two, and increase a further one at a time thereafter;

The letter said that in May 2023 Miss Kufandirori “persisted” that the application had to be made; that Mr Saleh still advised against applying for four vehicles; but “against [Mr Saleh’s] advice” Miss Kufandirori wanted to go ahead and apply for four trucks;

The letter said that, after the interim licence was granted to Excell Logistics Ltd, Mr Saleh was “very firm in [his] advice to [Miss Kufandirori]” about maintaining funds in the account; that he was told by Miss Kufandirori, after a month, that “everything was in the green and on track”; that, a week before the deadline set by OTC for submitting financial statements, Mr Saleh asked Miss Kufandirori for these; when he saw them he “knew [his] instincts were right and that Excell Logistics had not maintained the required funds …”; that he expressed his concerns to Miss Kufandirori “and asked why she had told [him] everything was fine financially, unfortunately likewise to previous occasions I could not get a straight answer from [Miss Kufandirori] …”;

The letter said that Mr Saleh then “instructed” Miss Kufandirori to write to OTC explaining the situation (as to the inadequacy of Excell Logistics Ltd’s funds);

The letter then continued as follows:

“In the matter of honesty, at this point after 9 months of being on the licence and encountering a number of issues and problems with [Miss Kufandirori] (which will be explained on separate documents prepared for public inquiry) I had decided I no longer wished to be transport manager for [Miss Kufandirori] due to the lack of honesty in communication and other factors.

My concerns were expressed to [Miss Kufandirori] very firmly … I began to construct a letter of resignation of the licence to the TC and to [Miss Kufandirori] when the following day I was by notified by [Miss Kufandirori] of the TC referring the case to a public inquiry.”

The letter said that it was at this point that Mr Saleh learned that the application to vary Excell Logistics Ltd’s licence had been withdrawn at the beginning of August; Mr Saleh said he believed that Miss Kufandirori had mistakenly done this but had not mentioned it; he commented that “this is the main issue which has persisted throughout my time on the licence, the seriousness and severity of the conditions which as operators we have to abide by, I believe [Miss Kufandirori] sometimes struggles to understand these things”;

The letter then explained why Mr Saleh did not resign as transport manager at that point and says that he “firmly instructed” Miss Kufandirori to adhere to the conditions of the licence;

The letter then explains how it was that, after the incident on 24 October 2023 with one of Excell Logistics Ltd’s drivers being pulled over by DVSA, Mr Saleh discovered that Excell Logistics Ltd was operating more than the one vehicle for which it was licenced. The letter then said this:

“It is here and now where I have decided to draw the line for giving [Miss Kufandirori] any further chances, she has lied to me about the number of vehicles she is operating, and not adhering to firm instructions from the TC and from me on several occasions, this unfortunately is something I can no longer be part of, it is for this reason I have removed myself with immediate effect from being a transport manager on Excell Logistics licence.

I will be attending the public inquiry to represent myself however I no longer wish to be associated with Excell Logistics as of this date [Miss Kufandirori] is not being compliant …”

The letter said that soon after becoming transport manager of Excell Logistics Ltd, Mr Saleh came to the view that the previous transport manager had not, contrary to what Miss Kufandirori told him, left for personal reasons; rather, it was because, although Miss Kufandirori “seemed to have the best intentions she seemed to be missing the very basic requirements of an operator, I struggled to make her understand these measures due what I can only describe as language barriers and the basic understanding of being an operator however I persisted into the coming months to incorporate the basic infrastructure of a compliant operator into [Miss Kufandirori] and Excell Logistics.”

Mr Saleh then described instances of him “chasing” Miss Kufandirori for compliance and commented that “unfortunately, it seemed that consistently my firm words and instructions were falling on deaf ears and the [Miss Kufandirori] simply did not understand the seriousness and requirements of being an operator”;

Later in the letter Mr Saleh described Miss Kufandirori “a lovely person just not knowledgeable at all …”;

Describing the period leading up Excell Logistics Ltd’s application to vary its licence, Mr Saleh said he had “initially refused twice” to make the application due to the funding position; he said Miss Kufandirori “persisted” in making the application; Mr Saleh said that, upon this happening, he had a meeting with Miss Kufandirori “and explained that I will not be a part of her company going forward if she carried on operating in the way she way she was with the 1 truck which she had once the interim was granted for 4”; he said he was “assured that going forward all [his] instructions would be met specifically; Mr Saleh then described in some detail his efforts to improve various aspects of compliance;

The letter explained, in a similar manner to Mr Saleh’s previous letter, how he discovered that Excell Logistics Ltd was operating more than the one vehicle for which it was authorised. The letter then said this:

“ … I had given [Miss Kufandirori] a lot of help since joining Excell Logistics and I had accepted a lot of excuses while giving her too many chances to improve her operating methods and compliance, however this [operating more than one vehicle] was an outright refusal to follow instructions both from the [TC] and myself and it is non-compliance that I could control or be a part of, although I was certain it would not shine a good light on my name removing myself off Excell Logistics licence with an upcoming PI, this is something I did not want to stain my name with, at every stage I believed [Miss Kufandirori] to be unknowledgeable about being an operator and slightly ignorant to the facts, however she always had good intentions and appeared to by trying to improve her ways which is why I had remained with her as long as I had, however I had to draw the line when [Miss Kufandirori] willingly and knowingly deceived myself and the TC by operating more than 1 vehicle.

It is with regret that I did not remove myself from Excell Logistics in the first few months when I had concerns regarding [Miss Kufandirori’s] understanding of compliance, however it was only with a good heart that I remained and I wished to help [Miss Kufandirori] as she is a lovely individual and as a small haulage operator myself, I gave her more chances than I should out of compassion and inexperience.

I look forward to discussing the above matters with you in further detail on the day of the public inquiry.”