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As the Appeals Tribunal held in Ashgar 2020-UNAT-982, para. 43, “[w]here evidence has been obtained in an improper or unfair manner it may still be admitted if its admission is in the interests of the proper administration of justice”.

The Appeals Tribunal has recognised that whereas underperformance is a lawful reason for not renewing a fixed-term appointment, the alleged underperformance must be adequately documented (see, Allen 2019-UNAT-951, para. 35, as well many other judgments). This means a non-renewal decision must be made on a rational basis, and the Administration is required to properly articulate the reasons for a non-renewal in order to ensure that the Tribunals can judicially review the validity of the decision, and this reason must be lawful and supported by the facts (see, for instance, Nouinou 2019-UNAT-902, para. 50; He 2018-UNAT-825, para. 46; Obdeijn 2012-UNAT-201, paras. 33-39; Islam 2011-UNAT-115, paras. 29-32).

A non-renewal decision can be challenged on the grounds that the Administration has not acted fairly, justly, or transparently with the staff member or that the non-renewal decision was motivated by bias, prejudice or improper motive. It is incumbent on the staff member to prove that such factors played a role in the non-renewal decision (see, Porras 2020-UNAT-1068, para. 24; Nouinou, para. 47; He, para. 43; Said 2015-UNAT-500, para. 34).

The Appeals Tribunal has held that when assessing an administrative decision resulting from a performance appraisal, the role of the Dispute Tribunal is not to conduct a de novo review of the performance appraisal or to place itself in the role of the decision-maker. Rather, the Dispute Tribunal’s role is “to decide whether the preferred and imposed performance standard was not met and to assess whether an adequate evaluation was followed to determine if the staff member failed to meet the required standard” (see, Sarwar 2017-UNAT-757, para. 74, citing Said, para. 40)