Highlights of Noteworthy Decisions

Decision 2884 16
B. Kalvin - J. Blogg - C. Salama
  • Employer (deemed)

The worker was a locomotive engineer employed by a railway company. The operator of a passenger train service retained the services of the railway company to run its trains. The worker was one of the engineers who ran the trains.

In June 2008, the operator of the train service retained a different company to take over operation of the trains. The old company and the new company entered into an agreement for the old company to provide engineers to operate the trains. The agreement expired in December 2010.
The old company offered some of its engineers, including the worker, the option of running the trains for the new company. The worker elected to accept this option. The old company and the worker entered into an agreement that the worker would run trains for the new company, that the worker would not be able to return to the old company in December 2010, and that he would either have to retire or join the new company at that time.
The worker suffered a compensable injury in May 2010. The Board found that the old company was the employer of the worker. The old company appealed, claiming that the new company was the employer.
By terms of the agreement between the old company and the new company, engineers provided by the old company would be subject to supervision of the new company but would remain employees of the old company for the duration of the agreement. The Panel could find no reason why the expressed agreement between the parties should not be given effect.
Further, Section 72 of the WSIA provides that, if an employer lends or hires out the services of a worker to another employer, the first employer is deemed to be the employer of the worker while the worker is working for the other employer.
Section 72 was directly applicable in this case. The old company hired out the services of its engineers to the new company for the temporary period between June 2008 and December 2010. The old company was the employer of the worker at the time of the accident in May 2010.
The appeal was dismissed.