Stories of infidelity aren’t uncommon, but an employer having to pay compensation when one of their staff members dies during the act certainly is.

If you were hit by a car and killed while you were on a work trip or tripped down a flight of stairs in the office, leaving you in a wheelchair, your employer could be required to pay compensation. But what happens if you died cheating on your spouse at a work event?

TSO, a French railway company, was faced with this very situation.

In 2013, an engineer (Xavier X) went into cardiac arrest while he was having sex with a stranger in a hotel room while he was on a business trip. The French court upheld a 2016 lower court ruling which outlined his death as an ‘industrial accident’. 

As a result, his family is entitled to compensation from both the state and the employer, according to the New York Post. This equates to monthly payments of up to 80 per cent of his salary being paid out until the point he would have retired, plus a portion of his benefits.

Putting our morals to bed

Although this ruling is years old, it has recently started gaining media attention after a French lawyer posted about it on LinkedIn calling the ruling “questionable”.

She’s not likely to be the only one to think this. 

Most of us are likely to have two separate feelings about someone who has an extramarital affair (judgment) versus someone who has fallen down a set of stairs (sympathy). But what happens when both behaviours result in death? Are we still allowed to stand strong with our morals and values? And should our workplace laws treat both incidents the same way?

TSO’s lawyer argued that Xavier was not undertaking professional duties at the time of his death and was not staying in the accommodation that his employer had organised for him. According to other media reports, TSO said because Xavier “had knowingly interrupted his work for a reason solely dictated by his personal interest, independent of his employment” it believed the company was not liable. 

But the French court did not agree. It ruled that having sex was a normal part of life “like taking a shower or eating a meal”.

The Court’s report said employee’s are “entitled to their employer’s protection for the duration of their mission … whether or not the accident takes place as part of a professional activity or as an act of normal life.”

How would this play out in Australia?

Claiming worker’s compensation in France was made much easier ten years ago, when the courts decided that any workplace related deaths or injuries were bundled together as “accident du travail” and could be compensated for. The only way TSO would have been able to avoid payment was if it could prove Xavier had abandoned his work duties to do the deed, which it could not.

While the French court decided that having sex was a normal part of life, an Australian safety body disagreed. In the ABC’s coverage of this story, it refers to another workplace sex related injury that was sustained in Australia, but this time the damage was both physical and psychological.

In 2007, a public servant in her 30s was having sex with another colleague while on a business trip when a glass light fitting fell on her. She sustained injuries to her face and tooth that warranted a trip to the hospital which lead to a “psychiatric adjustment disorder”. Reports suggest that her depression from the incident meant she was unable to return to work.

Compensation for this was originally approved by workplace safety body ComCare. The judge at the time said had she injured herself playing cards in her hotel room with her employee, she would have received compensation. So why would this be any different?

However, on appeal in the High Court, the employer was found not to be liable as the incident occurred out of hours.

The Federal Employment Minister at the time, Senator Eric Abetz, told the ABC that “this decision also means that the definition of ‘work-related injury’ is more clearly defined. It’s important in Australian workplaces that we have a form of ‘mutual obligation’ where employees and employers both work together and are prepared to accept personal responsibility.

“Instances such as this where an employee seeks to stretch the boundaries of entitlements are of great concern and the High Court’s intervention is welcome,” he said.

ComCare’s view was “people needed to eat, sleep and attend to their personal hygiene” but “you don’t need to have sex” – basically the opposite of what the French courts found. The slightly humorous cultural difference has not been lost on most people. 

As journalist Eric Levitz wrote for Intelligencer, “This story has garnered tabloid attention… because there is something amusing in the way its details seem to affirm some of our crudest stereotypes about the French (i.e., that their workers are pampered, that they view extramarital affairs as banal, everyday activities akin to showers or meals). But one shouldn’t lose sight of the human tragedy at the heart of the matter. Someone lost her husband forever as a result of an embarrassing accident that might have never happened, were it not for the demands of his job.” 

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