‘They say life goes on. Not for Michael’
Springhill Construction Ltd. fined $100K for workplace safety failure that led to death of teenage worker in 2018; victim's mother describes penalty as “slap on the wrist”
The mother of a young worker killed on a construction site five years ago says the $100,000 penalty for a Fredericton company is “a slap on the wrist” and will do nothing to improve job safety.
Michael Anthony Henderson, 18, of Fredericton, was working in an eight-foot deep hole at the City of Fredericton’s Barker Street Wastewater Treatment Plant on Aug. 16, 2018, when a pneumatic pipe plug came loose, pinning him.
The hole filled with water almost instantly, and he drowned.
Henderson was working for Springhill Construction Ltd., the generator contractor on the job at the plant.
The company had faced a criminal charge of negligence causing Henderson’s death, but it pleaded guilty last month instead to a charge under the provincial Occupational Health and Safety Act of failing to provide the necessary training, equipment and supervision to ensure an employee’s health and safety.
Springhill and its president, Jeff Colter, were in Fredericton provincial court Friday for a sentencing hearing.
Crown prosecutor Christopher Lavigne noted the company had signed an agreed statement of facts, filed with the court, acknowledging it failed to take reasonable precautions to protect the health and safety of employees at the site, failed to ensure workers complied with safety regulations and failed to ensure there was competent supervision in place to maintain safety protocols.
Lavigne and defence lawyer Clarence Bennett offered a joint recommendation on sentence: a fine of $100,000.
However, court heard that the parties had agreed to divert those funds to establish a scholarship fund for students in the New Brunswick Community College carpentry course in Henderson’s honour.
“The fine in this case can be used for something meaningful,” Lavigne said.
Judge Jeff Lantz, chief judge of the Prince Edward Island provincial court, who presided over the case Friday, heard students applicants for the Henderson bursaries would be asked to write an essay on the topic of workplace safety and would need to submit a letter of reference from an employer or teacher attesting to their focus and dedication to health and safety on the job.
Bennett said the $100,000 would serve as an endowment to fund two to four scholarships annually, and the goal would be to change and improve safety culture in the construction industry.
Springhill apologized to the victim’s family, he said, “for the actions and actions that gave rise to the death of Mr. Henderson.”
Bennett said Colter and the company in general deeply regret the circumstances that led to the tragedy.
“It shouldn’t have happened,” he said. “They accept responsibility for what happened.”
Lantz accepted the joint submission on sentence, noting it was within the established range for penalties for such offences.
‘There needs to be a bigger penalty’
However, Diane Henderson, the victim’s mother, told the Fredericton Independent on Friday the $100,000 fine sends the wrong message.
While she was pleased with the establishment of a bursary fund in her son’s memory, she said, the fine imposed won’t have the deterrent effect necessary to ensure others don’t fall victim to the same sort of safety lapses that claimed her son’s life.
“The fine of $100,000 for Springhill, I’m sure, is really nothing for them,” she said.
“They are walking away with a slap on the wrist.”
She pointed out the maximum fine in Ontario for such workplace health and safety violations is $2 million, whereas in New Brunswick, it’s only $250,000.
“How does such a minimal fine like this prevent Springhill or other companies from something like this happening again?” Diane Henderson said.
“There needs to be a bigger penalty for companies and supervisors who lack so severely on safety.”
As part of the sentencing process, Lantz also received and reviewed 13 victim-impact statements from Michael Henderson’s family and loved ones.
Samantha Landry, a civilian victim-services representative with the Fredericton Police Force, read two of those statements - Diane Henderson’s and her elder son Eric Henderson’s - aloud Friday at the request of the victim’s family.
‘I tried to save him but I couldn’t’
They detailed how Michael’s death has wrought emotional and financial devastation in their lives.
Eric Henderson is eight years older than Michael, court heard, and he was also working at the treatment plant jobsite when the incident occurred.
He said he lost his kid brother “right before my eyes,” as he recalled desperately trying to pull him out of the water-filled hole, trying to get him air, trying to puncture the pneumatic plug to free him, all to no avail.
“I tried to save him but I couldn’t,” Eric said, noting that in the wake of Michael’s death, his life spiraled out of control. “My life is changed forever.”
He could no longer work in construction, he said, and he descended into a life dominated by alcohol, drugs and trouble with the law.
“I should’ve been the one to die because I am the oldest,” Eric wrote, noting he suffers from post-traumatic stress and survivor’s guilt.
His statement said he’s been clean for a year and a half now, and he now has to deal with retraining for a completely different career at the age of 30.
Water can be a trigger for him now, Eric wrote.
“I still feel panicked sometimes when having a shower,” he said.
Diane Henderson wrote in her statement that in a way, she lost both of her sons that summer day in 2018. Her elder son’s descent into addiction and mental illness threatened his health and safety as well, she said, noting he’s haunted by guilt.
“He was holding his brother’s hands while he drowned,” she said.
“The journey has been a living hell for all of us.”
Diane Henderson said she’s tormented by the fact she couldn’t hold Michael after he died, that she had to say good-bye to him through glass.
Days after his death, she said, his new driver’s licence arrived in the mail, and she had to go around filing death certificates cancelling identification such as that and Michael’s insurance.
“It felt like I was erasing my son’s existence from ever being here,” the grieving mother wrote.
Her ability to work was affected and she lost a job she held for a long time, she reported, and she’s struggled with maintaining employment.
She has trouble sleeping, and when she does sleep, she grinds her teeth to the point she now requires dental care.
After Michael had been gone for a year, she said, people told her she got through the worst of it, and that she’d start to heal.
“Now it’s the fifth year, and nothing has gotten easier,” she said. “They say life goes on. Not for Michael.”
Diane Henderson wrote that she wakes every morning replaying the horror of her son’s final moments over in her head.
“Everyone’s loved ones deserve to return home safe from work,” she said.
Lantz said deterrence is the main objective in sentencing in such cases.
“A young man lost his life,” he said, noting that was a significant aggravating factor.
But the court also had to weigh mitigating factors, the judge said, citing the guilty plea, Springhill’s co-operation with authorities and steps it took to improve worksite safety as ones to consider.
“Whatever is done here today in court won’t bring back Michael Henderson,” Lantz said.
In accepting the jointly recommended sentence, he directed Springhill to pay $100,000 to NBCC through a probation order.
That money is to be used to establish the Michael Henderson Carpentry Bursary to promote health and safety awareness in the workplace.
Bennett noted the company would make the payment within 30 days.
Once the sentence was imposed, Lavigne withdrew the charge of criminal negligence causing death.
The other accused party
Also charged in Henderson’s death was Jason Andrew King, 46, of Upper Hainesville.
He was also employed by Springhill the summer of 2018 at the treatment-plant jobsite as the site supervisor.
He stood trial in the Court of King’s Bench earlier this year on the criminal charge of negligence causing death.
A judge found him guilty and sentenced him to three years in prison.
King filed a notice of appeal with the New Brunswick Court of Appeal shortly thereafter and has since been released on conditions pending the outcome of that proceeding.
Evidence at King’s trial showed he knew Henderson was in the hole when he started a test of the pipe system.
Lavigne said Friday that King sent 32,000 litres of water into the pipe that led to the pneumatic plug, and the supervisor didn’t warn Henderson about the water test or direct him to leave the hole while it was underway.
Henderson was never told he shouldn’t be working around the plug while there was any water pressure being applied to it.
Testifying in own defence at his trial, King said Springhill hadn’t provided him with training when it made him a site foreman, noting he wasn’t qualified for the supervisory role he’d taken on.
King - who was fired soon after the fatal incident - also admitted at trial he hadn’t read any of the safety manuals available on site.
Don MacPherson can be contacted at ftonindependent@gmail.com.
The article states “The company had faced a criminal charge of negligence causing Henderson’s death, but it pleaded guilty last month instead to a charge under the provincial Occupational Health and Safety Act of failing to provide the necessary training, equipment and supervision to ensure an employee’s health and safety”
As someone who worked as a CRSP in NB for many years I find it disturbing the penalty imposed on the said company does mention or illicit any action from the company with respect to the OHS charge. According to the article it only references a monetary repercussion.
Unless there is more to the article than mentioned here; the company was not asked by the courts to address their responsibilities towards the OHS Act and Regulations. They are responsible to provide the necessary training, equipment and supervision to ensure an employee’s health and safety.
It is most sad that a young man lost his life due to the company’s negligence.
This case is so sad on so many levels. And the mother of the victim is correct. The penalty for the Company responsible, is not enough. This mother and brother will never get over this loss. The brother will live with that vision forever. The mother will feel the loss of a son, forever. What will the company do? pay a little fine. One million dollars would be more appropriate. Not that it will heal the family, but it would certainly feel like a little bit of justice has been done.