����AV

Receivability Its well-established jurisprudence that under staff rule 11.2(c), a decision is only reviewable by the Dispute Tribunal if the Applicant has timely sought management evaluation of such decision. A request for management evaluation is a sine qua non condition to have access to the internal justice system as per article 2.1 and 8.1.c) of its Statute and staff rule 11.2(a). Access to justice is not an absolute right and procedural limitations, such as this one, are compatible with the nature and scope of access to justice, provided that they are prescribed by law and do not impair the very essence of such right. A request for management evaluation is a compulsory step if a staff member wishes to contest an administrative decision which is not of a disciplinary nature or has not been taken pursuant to the advice of a technical body. As a consequence, the Tribunal rejects as irreceivable ratione materiae the Applicant’s challenge to the decision to place him on SLWOP pending an investigation because the Applicant failed to timely request management evaluation. Standard of proof The Tribunal is persuaded that the Applicant indeed misrepresented facts in his application to the post in UNICEF, and that the facts in support of the allegations against him were established as per the appropriate standard of clear and convincing evidence. Misconduct The failure to reply correctly to a prominent and very relevant question in an application form amounts to a false answer from which dishonesty normally may be inferred. The Appeals Tribunal found that a false answer in an application form is prima facie proof of dishonesty, shifting the evidentiary burden to the maker of the statement to adduce sufficient evidence of innocence. The Tribunal has no doubts that the Applicant’s behavior amounts to misconduct as he deliberately failed to provide correct information to UNICEF. Proportionality While assessing the proportionality of the sanction, the Tribunal has to consider the overall features of the case, the context in which the facts have occurred, the Applicant’s attitude towards those facts, and the impact of the sanction. The Tribunal was not able to identify any errors in the exercise of UNICEF’s discretion in deciding to dismiss the Applicant. On the contrary, the Applicant not only misrepresented the facts at stake but also, when confronted with his behavior he tried to cover it up. This attitude clearly demonstrates his inaptitude as an international civil servant and a lack of compliance with the Organization’s highest standards of integrity. Therefore, the Tribunal is satisfied that the sanction is proportional to the seriousness and gravity of the offence. Due process In relation to the Applicant’s due process rights in the course of the investigation and the disciplinary proceedings, the Tribunal recalls that the burden of proof in this respect lays on him. The Tribunal notes that the Applicant has not identified any procedural flaw that may have impacted his defence rights. Moreover, after analysing the file and the investigation’s report, the Tribunal is satisfied that the Applicant was notified of the allegations made against him and given the opportunity to respond to them, which he did. Consequently, the Tribunal has not found any procedural flaw in the course of the disciplinary proceedings held against the Applicant.