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Wal-Mart fined $120K in teen's death

03/20/2012 07:05 EDT | Updated 05/20/2012 05:12 EDT

Wal-Mart Canada has been fined $120,000 in connection with the death of a teenaged employee last year in Grand Falls, N.B.

Patrick Desjardins, 17, was electrocuted while using a floor buffing and polishing machine on the wet floor of a garage at the Wal-Mart outlet in the northwestern New Brunswick community on Jan. 5, 2011.

Wal-Mart pleaded guilty Tuesday in Grand Falls provincial court to three charges under the Occupational Health and Safety Act, while supervisor Denis Morin pleaded guilty to two charges under the act.

Crown prosecutor Karen Lee Lamrock said Desjardins' death was neither deliberate nor intentional on the part of Wal-Mart or Morin. It was an accident, resulting from imprudence, not malice or corner-cutting, she said.

"We did not find they have put profit ahead of safety concerns in this case," Lamrock said.

Wal-Mart has taken several remedial steps, the court heard.

Record-setting fine

Still, the Crown asked the court to consider imposing a fine of $100,000 for Wal-Mart, plus a $20,000 victim fine surcharge.

The highest fine ever imposed in New Brunswick for a violation under the act was $30,000, the court heard. But the legislation was changed in 2008, increasing the maximum fine per count to $250,000.

Wal-Mart agreed to the recommended $120,000 fine as part of a joint submission.

Judge Paul Duffie fined the company that amount, saying it was a tragic case, but said he was impressed Wal-Mart had admitted guilt and worked to find a resolution.

Morin, who makes about $36,000 a year, was fined $880, plus a $176 victim fine surcharge, as recommended in the joint submission.

Wal-Mart Canada may be the largest corporation charged by WorkSafeNB, Mike McGovern, a lawyer with the Crown corporation, has said.

Wal-Mart was originally facing a total of eight charges under the act, but those charges were withdrawn and replaced with the three new charges that the company:

- Failed to ensure that the floor polisher was inspected before use and repaired or replaced if necessary, and was maintained in proper working condition, and failed to ensure employees complied with the requirements of tool use.

- Failed to ensure that electrical equipment, including extension cords, were suitable and that they were maintained and modified in accordance to the manufacturer's specifications and appropriately insulated or grounded before each use.

- Failed to take all reasonable precautions to ensure the health and safety of employees by permitting the use of the floor polisher with a faulty extension cord in the tire and lube express area of the store.

The original three charges against Morin were also withdrawn and replaced with two new chargesthat he:

- Failed to provide a healthy and safe workplace for employees.

- Failed to inform employees of the dangers of using the floor polisher in the garage.

WorkSafeNB laid the original charges following a lengthy investigation.

Floor polisher was purchased at yard sale

Desjardins, a Grade 12 student at John Caldwell School, had been working at Wal-Mart part-time to save money to pay for college. He wanted to become a forest ranger.

His duties included oil changes, tire installations and cleaning the bay floors at the end of the night once the shop was closed, the court heard.

Some of the technicians would use an Electrolux floor polisher, while others would use buckets and mops.

On Jan. 5, 2011, Patrick had been using the floor polisher when he was discovered in the store's garage by another employee at about 8:30 p.m. AT. First aid was administered and the teen was rushed to Grand Falls General Hospital where he was pronounced dead on arrival.

The floor polisher had been purchased by one of the other technicians at a yard sale and brought to the garage for use, the court heard.

Wal-Mart had not authorized its use, so the technicians were not trained to use it and it was not inspected monthly, along with other equipment, the court heard.

But the technician who bought it had been reimbursed for the purchase from the store's petty cash fund and the technicians' supervisor knew it was being used.

Another technician had spliced an extension cord together and spliced it to the buffer. A rag and some green painter's tape were wrapped around the cord.

Video surveillance showed Desjardins' hand came into contact with the rag and the buffer was not plugged into a grounded outlet at the time. His knees buckled, he grabbed the cord and fell onto his back on the wet floor. The polisher fell on top of him and he suffered electrical shock for about 25 seconds before he stopped moving.

Wal-Mart 'deeply saddened'

Wal-Mart was "deeply saddened" for the Desjardins family and Patrick's co-workers, defence lawyer Brad Proctor told the court.

The company hired grief counsellors and closed its tire and lube express for an extended period, he said.

Health and safety remains paramount at Wal-Mart and such incidents provide an opportunity to further strengthen workplace safety practices, Proctor said.

Wal-Mart has taken several remedial steps, including:

- Launching a nationwide search for similar unauthorized equipment, and ensuring its immediate removal.

- Amending a daily checklist to direct inspectors to place a greater emphasis on looking for tools that are not authorized to be in Wal-Mart stores.

- Placing a greater emphasis on looking for any defects in equipment that is authorized for use.

- Retraining all tire and lube express employees on safety procedures.

- Removing all extension cords in tire and lube shops.

- Adding the removal of extension cords to the daily, weekly and monthly checklists.

- Permanently wiring in any equipment.

- Repairing or replacing any outlets that didn't have ground fault interrupters.

Morin did not address the court. Defence lawyer Sacha Morisset told the court Morin was very upset by Desjardins' death and took several months off work afterward.

Morin still works at the store. He was described as a good employee who cares about the safety of his workers.

Fabien Desjardins, Patrick's father, has told CBC News he felt the death of his only child was as a result of negligence. The family filed a civil lawsuit shortly after Patrick's death and the case was settled out of court for an undisclosed amount.

John Caldwell School has created a $2,500 scholarship that will be awarded to a student each year in Patrick's memory.

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