Ashly DhaniPeace Sithole
For the past three weeks social media platforms have been awash with news of the recent death of a French business executive who was said to have died during sex on a business trip. A colleague of mine has raised a number of questions about the legal responsibilities of employers when their employees are involved in misconduct or accidents while on business trips. The big question being that is the employer liable for the action that caused the death of this executive if it was here in Zimbabwe.
Who is liable in a situation like this a colleague of mine asked? Does the company bear any responsibility for the employee’s actions, or is this solely the fault of the individuals involved? My boss is always travelling for work – should I be worried that the company could be sued if something happens to him on a business trip? These are the types of questions that have been circulating on social media and in offices across Zimbabwe in the wake of the high-profile incident involving the French executive. And the answers, it turns out, are not always straightforward.
In my pursuit to try and answer to all these questions, l had to contact my colleagues in the human resources practice, Caroline, a disgnated agent for a local NEC who had this to say: “Ehe the employer is responsible for the negligent behaviour of their employee on the trip which they promised they would take care of”. But others were of a different view. Mr Gombakomba feels that the employer is vicariously liable for actions undertaken by employees during the course of executing official duties hence the employee in question was doing his own business of satisfying himself. Mr Gombakomba also noted important notes to consider in cases like this
- The employee was not in the hotel room designated for him or paid by the company.
- The employee was not in the company of his wife but a total stranger who was not part of the business trip
- The employee was not in line with his purpose of the travel.
- Sex was not part or closer to part of his reasons for the foreign travel.
Hence the employer is not liable for actions outside the scope of official duties. The employee was satisfying his own sexual desires which the employer did not agree to and was not aware of such.
I think the court aquo misdirected itself to render the employer liable for such actions. In actual sense the employee brought the name of the company into disrepute.
Vicarious liability in the Zimbabwean context
The legal doctrine of vicarious liability is what determines when an employer can be held responsible for the wrongful acts of its employees. In Zimbabwe there are circumstances in which an employer can be held responsible for an employee’s misconduct. The key determining factor is whether the employee was acting “within the course of their employment” when the wrongful act occurred.
The test is whether the employee was doing something which they were employed to do, even if they were doing it improperly if the employee was acting in furtherance of the employer’s interests, then vicarious liability can apply.
In cases such as that of the deceased French CEO, the critical question is whether his sexual encounter with the stranger lady can be considered to have been within the course of his employment duties. If so, his employer could potentially be found liable. If not, the liability would likely rest solely with the employee and the other individual involved.
The scope of employment
Generally speaking, courts in Zimbabwe have interpreted the “scope of employment” requirement quite narrowly when it comes to sexual misconduct or other highly personal acts committed by employees.
The law recognises that employers cannot control every aspect of their employees behaviour, especially when it comes to intimate or private matters. There has to be a very close connection between the employee’s wrongful actions and the furtherance of the employer’s interests for vicarious liability to attach.
In a case like the one involving the French executive the employer would likely argue that the sexual encounter was a purely personal matter that had no relation to the executive’s professional responsibilities.
Even if the tryst took place during a business trip, the company would contend that employee was not acting in the scope of his employment when it occurred.
The fact that it happened in a hotel room, rather than the workplace, works in the employer’s favour. Generally speaking, courts are reluctant to hold companies liable for the private sexual activities of their employees, even if they happen to take place during a business trip.
That said, there are potential counterarguments the plaintiff could make. For example, if there was evidence that the employer had brought the subordinate employee from his place of work specifically for the purpose of engaging in this type of personal relationship, that could strengthen the case for vicarious liability.
Ultimately, it would come down to a detailed analysis of the specific facts and circumstances surrounding the incident. But the general tendency in Zimbabwean law is to construe the scope of employment fairly narrowly when it comes to sexual misconduct.
Foreseeability and Risk Management
Another key consideration in vicarious liability cases is the concept of foreseeability.
Even if an employee’s wrongful actions fall within the scope of their employment, the employer may still avoid liability if the harmful outcome was not reasonably foreseeable.
The law recognises that employers cannot necessarily anticipate or prevent every possible negative outcome stemming from their employees’ conduct. There has to be a reasonable connection between the type of misconduct and the ultimate harm that occurred.
In the case such as that of the deceased French executive for example, the employer could argue that a fatal heart attack during sex was not a foreseeable consequence of sending an executive on a business trip. While the sexual encounter itself may have been within the scope of employment, the tragic outcome was an unforeseeable fluke that the company should not be held liable for.
That said, there are steps that employers can take to mitigate their risks and exposure to vicarious liability claims. Robust policies, training programmes, and risk management protocols can all help demonstrate that a company took reasonable precautions to prevent employee misconduct.
Things like anti-harassment policies, codes of conduct, and guidelines for business travel can all be important. If an employer can show that they had appropriate safeguards in place, that will work in their favour if a vicarious liability claim is ever brought against them.
In the wake of such cases many Zimbabwean companies may be reviewing their own policies and practices to ensure they are taking adequate steps to manage the risks associated with employee travel and potential misconduct. Proactive risk mitigation can go a long way in avoiding costly legal battles down the line.
Workplace Culture and Accountability
Beyond the specific legal doctrines, incidents like dying whilst having sex on a business trip also highlights the importance of workplace culture and accountability when it comes to managing employee conduct.
This sort of situation really underscores the need for strong ethical leadership and a healthy organisational culture. When senior executives engage in inappropriate behaviour, it can have a corrosive effect on the whole company.
In many Zimbabwean workplaces, there is still an entrenched boys’ club mentality among upper management, where inappropriate conduct is often overlooked or even tacitly condoned.
We have seen too many cases of powerful male executives abusing their positions and taking advantage of subordinates, whether it is sexual harassment, favouritism, or other forms of misconduct and all too often, the companies they work for turn a blind eye to it.
In the case of one dying whilst having sex on a business trip, the fact that he was engaged in a sexual relationship with a stranger on a business trip raises questions about the overall culture and leadership at his firm.
Even if the company itself is not found legally liable, there may be broader reputational and morale consequences to grapple with.
Employees want to work for organisations that uphold strong ethical standards and hold everyone, including top executives, accountable for their actions. When that kind of culture is lacking, it can breed distrust, low morale, and a sense that the rules do not apply equally to everyone.
Looking ahead
As Zimbabwean companies continue to navigate the complex legal and cultural terrain surrounding vicarious liability, there are a few key lessons that emerge from the French CEO tragedy:
- Clearly define the scope of employment and set appropriate boundaries. Robust policies, training and risk management protocols are essential to mitigating exposure to vicarious liability claims.
- Foster a culture of ethical leadership and accountability.
When top executives engage in misconduct, it can have a corrosive effect on the entire organisation. Companies must be proactive in setting the right tone from the top.
- Be prepared to manage the fallout, both legal and reputational. Even if a company is ultimately not found legally liable, incidents like this can still carry significant consequences in terms of public perception, employee morale and overall brand reputation.
Ultimately, cases like dying whilst doing things that are not part of your duties serves as a sobering reminder that the actions of employees, even at the highest levels, can have far-reaching implications for their employers.
By understanding the nuances of vicarious liability and taking a proactive approach to risk management and organisational culture, Zimbabwean companies can position themselves to navigate these challenging issues with greater confidence and clarity.
Peace Sithole has a Bcom HRM, Dip Payroll Management Dip HRM Dip Education Executive certificate in labour law conciliation and arbitration, certificate in human resources metrics and analytics, certificate in program project monitoring and evaluation 0773474899
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