The ESB has claimed the refusal by one of its employees to answer questions about alleged payments solicited from builders means the employee is in breach of the terms of their contract of employment.
It wants the High Court to declare that Kieran Sharkey has breached his contract of employment by failing to answer questions put to him by the company earlier this year.
Allegations were made last year that several ESB workers sought unlawful payments from developers and builders in return for favourable treatment when carrying out works including connecting projects to the national grid.
An electrician
The claims came to light in separate proceedings brought by the ESB seeking orders to require two building companies to provide information regarding the claims.
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Lawyers representing Mr Sharkey, an electrician with the ESB who denies any wrongdoing, told the court on Thursday he is entitled to silence to avoid the prospect of self-incrimination as the matter is also the subject of a Garda investigation.
The ESB, represented by Marcus Dowling SC, says the right to silence claimed by Mr Sharkey does not exist in the context of a private law dispute between the ESB and its employee.
The right to silence, counsel submitted, only relates to situations where a person is being asked to answer questions put to them by a State entity, such as An Garda Síochána.
The court heard Mr Sharkey was referred to the ESB as one of the individuals allegedly involved in seeking payments.
Counsel said Mr Sharkey, with an address in Finglas, Dublin, was asked to answer questions including if he had accepted any payments from any party for preferential treatment.
He was also asked, if he had done so, who did he get the money from, what amounts were involved and what works were provided in exchange for the payments.
Counsel said Mr Sharkey, whose home was searched by gardaí as part of the investigation into the allegations, refused to answer any questions.
Done nothing wrong
Mr Sharkey said he obtained legal advice and stated he has done nothing wrong.
In reply, Michael O’Higgins SC, for Mr Sharkey, said the ESB was “absolutely not” entitled to any declaration from the court that would allow it to summarily fire their client for not answering the questions put to him.
Counsel said it would be “unfathomable” for the ESB to be allowed to dismiss Mr Sharkey in such circumstances.
Counsel argued that the ESB’s proposed action is premature, as the plaintiff has not subjected Mr Sharkey to any disciplinary process arising out of the allegations.
Mr Sharkey has been with the ESB since 2017 and has a good record of employment with the company, he said.
It was accepted Mr Sharkey would have to face the consequences if he was to stay silent when questions were put to him in the disciplinary process.
Mr Justice Rory Mulcahy is continuing to oversee the hearing concerning several preliminary questions in the ESB’s claim, including whether Mr Sharkey has a right to silence.
Related proceedings
In separate but related proceedings the ESB and its subsidiary ESB Networks DAC have asked the court for orders against two related construction firms: Richmond Homes Ltd and Arkmount Construction Ltd, requiring them to provide information.
The ESB wants the names of the individuals who are alleged to have made the cash demands and what works were carried out in exchange.
The application has been opposed on grounds including that the companies have already provided the ESB with a large amount of documentation in relation to the claim and that the application to the court is disproportionate and unwarranted.
Those proceedings were launched after the firms informed the ESB its employees sought payments from the two companies.
Judgment is awaited in that application.