Ilalio Solomona v Auckland Council [2026] NZERA 418

This Employment Relations Authority (ERA) determination concerns the summary dismissal of Ilalio Solomona, a fitness instructor at Auckland Council's Birkenhead Pool and Leisure Centre. Auckland Council dismissed him for serious misconduct after alleging that he had failed to declare his personal-training business and had made social-media videos of leisure-centre users to promote that business without permission. The Authority found that Mr Solomona did have contractual obligations capable of being relevant to outside business activity, but Auckland Council did not put those obligations to him in the disciplinary process. Instead it relied on policies which did not, in substance, fit the situation, after Council managers had known about the business and the videos for a substantial period without properly addressing them. The Authority found unjustified dismissal, awarded $2,001.60 gross lost wages and $13,500 compensation after a 10 percent contribution reduction, and reserved costs. The full determination is embedded at the end of this page.

Background: a fitness instructor with an existing personal-training business

Mr Solomona was an experienced personal trainer who had operated a small personal-training business since 2019. He began work with Auckland Council as a fitness instructor at the Birkenhead Pool and Leisure Centre on 3 May 2022. The distinction between the roles mattered: his Council role involved general fitness assistance and referrals, whereas personal trainers provided more detailed individual support. Birkenhead did not have personal trainers while he worked there.

During recruitment, Mr Solomona discussed his private business in a screening call. The discussion did not directly resolve whether he would continue operating it. Mr Solomona understood that he had conveyed that he would; the Council recruiter understood that he would transition clients to the leisure centre. He then answered “no” to conflict-of-interest questions in the application and interview process. He said this was because his clients were based in East Tamaki, about 25 kilometres away, and were not realistically going to travel to Birkenhead for personal training.

The Authority found that Mr Solomona did have written employment terms. Those terms included a conflict-of-interest provision which prevented other employment or business activities that might create a conflict, interfere with his duties or undermine Auckland Council's best interests. However, that contractual provision was not put to him as part of the disciplinary case which led to dismissal.

The leisure-centre social-media videos

In about June 2023, Mr Solomona made three short “motivational” videos featuring leisure-centre customers discussing fitness and wellbeing. The videos were made at the Birkenhead facility and then posted online. The Authority accepted that there was nothing inherently inappropriate about the content itself, and Auckland Council did not suggest otherwise. It was likely that the people filmed consented to being recorded and used in the videos, although it was not clear whether they thought they were participating in content for Auckland Council or for Mr Solomona personally.

Mr Solomona accepted that the videos were part of his efforts to reach people in support of his private business. He said they were made while he was working out at the facility, rather than during paid work time, and that he would have removed them had he been instructed to do so.

Discipline commenced long after the issues were known

On 3 February 2025, Mr Solomona was handed a disciplinary invitation dated 17 January 2025 for a meeting two days later. The meeting was held on 5 February in Auckland Council's Albert Street offices, with the Council's Head of Operations North and an employment-relations lawyer present. Mr Solomona had not previously worked with or reported to the manager conducting the process.

The Council alleged that Mr Solomona had breached confidentiality and engaged in a conflict of interest for personal gain by posting the videos and operating his personal-training business without declaring it. It relied on Council Charter provisions concerning personal information, social media and stewardship of Council resources; its Disciplinary Action Guide; and its Conflict of Interest Guide.

Mr Solomona accepted that he had operated the business outside work and had not formally declared it in the periodic declarations. He also accepted making the videos and apologised, but said he had permission and did not understand why the videos or the business created the conflict alleged. He said he had tried to stay within the relevant boundaries and was not trying to take clients from Auckland Council.

Why the policy case was confusing and did not fit the alleged misconduct

The Authority held that Auckland Council's Conflict of Interest Guide did not easily apply to this situation. Properly read, the Guide focused on municipal decision making and the risk that public employees' decisions or responsibilities might create a private benefit, such as using non-public information or having a business that supplies Council. That was not the case advanced against Mr Solomona.

The Council was actually concerned that his private business might detract from its commercial interests. That was a different concern. The Authority found that the reliance on the Conflict of Interest Guide was therefore understandably confusing for Mr Solomona.

Auckland Council could have relied on the conflict-of-interest provision in Mr Solomona's employment terms. It did not. Nor was he shown the annual conflict declarations which the Council said he had completed, or provided a copy of his employment agreement, when it treated his claimed lack of understanding as implausible.

Preliminary dismissal and final summary dismissal

At the end of the 5 February meeting, after a short adjournment, Auckland Council communicated a preliminary view that Mr Solomona would be dismissed. He appeared shaken and asked for time to seek advice. A second online meeting was arranged for 7 February 2025.

At that meeting Mr Solomona apologised again and said he had tried to do the right thing. The Council said its preliminary view had not changed. He was offered the option of resignation, which he declined, and was then told that his employment was summarily terminated. The written termination letter was not sent until 14 February 2025.

The dismissal letter said the Council had lost trust and confidence because Mr Solomona did not appear to understand the errors he had made or how he had breached the Charter principles. His apology was treated as not genuine because he maintained he had not done anything wrong.

The Council breached its duty of good faith

The Authority considered good faith as an issue in its own right. It found the Council had known about the relevant issues for a considerable period before launching a formal disciplinary process. In those circumstances, good faith required an open discussion with Mr Solomona about the concerns, with resolution in mind. A disciplinary process could have followed if concerns remained after that discussion.

Instead, Auckland Council moved directly to full disciplinary action. The Authority held that this was not behaviour consistent with actively and constructively maintaining a productive employment relationship, particularly given the Council's prior knowledge and the nature of the concerns. It therefore breached section 4 of the Employment Relations Act 2000.

Finding: unjustified dismissal

The Authority held that the dismissal was not justified. Auckland Council had relied on policies which did not, in substance, apply to the situation it was dealing with. That meant Mr Solomona did not have a fair opportunity to respond to the real concerns, or to have any response properly assessed.

The Council had sufficient resources, including in-house legal assistance, to put the issue squarely to Mr Solomona. The Authority regarded the unfairness as more than minor because it materially affected his ability to answer the allegations. It also relied on issues known for some time which had not been addressed in good faith.

The Authority did not accept, however, that the two-day period before the first meeting independently made the process unfair. It considered that Auckland Council would have moved the meeting had Mr Solomona requested more time, and he had indicated that he was happy to proceed.

Mr Solomona's separate unjustified-disadvantage claims were not made out. The Authority treated the timing of the disciplinary invitation and the earlier delay in raising issues as matters going to the justification of dismissal, rather than separate disadvantage claims.

Limited lost wages: four weeks only

Mr Solomona claimed lost wages. But before dismissal he had already contracted with another gym franchise to provide personal-training services, and he had his own private business. He produced limited evidence of mitigation after dismissal.

The Authority found that he was well placed to manage the loss of his 20-hour-per-week Council job by investing his efforts in his own business and the franchise gym. It awarded four weeks' ordinary time remuneration, calculated at $2,224 gross before contribution.

Compensation and contribution

Mr Solomona gave evidence that the abrupt dismissal was depressing and difficult mentally and emotionally. He felt mistreated and unfairly disbelieved, although he had support from his faith and his girlfriend. The Authority assessed compensation for humiliation, loss of dignity and injury to feelings at $15,000 before any contribution reduction.

The Authority found that running a business offering services similar to his employer's could potentially be blameworthy, and Mr Solomona should have been more careful about formally declaring it. But his disclosure of the business to his line manager was enough to mean that continuing to operate it was not itself wrongful behaviour for contribution purposes.

The Authority treated the social-media videos differently. Even with participant consent, they used customers of his employer in his workplace to improve his own business's social-media presence. That was inconsistent with his obligation to support and protect his employer's interests. A 10 percent reduction was therefore applied to both remedies.

Why this case matters

Solomona v Auckland Council is a practical warning about characterising a disciplinary allegation accurately. An employer may have a valid contractual concern about an employee's outside business, competing activity or use of workplace customers. But it must articulate that concern properly and not rely instead on a policy which is directed to a different type of conflict.

The decision also shows that delay matters. If managers know of conduct for months or years, and then leap straight to formal discipline without first discussing the concern, the employer may breach the duty of good faith. That does not prevent a later disciplinary process in every case, but it may make the eventual process and outcome unjustified.

Finally, the decision separates disclosure from formal compliance. An employee's informal disclosure to a manager may mean that continuing the outside business is not sufficiently blameworthy for a remedy reduction. That does not necessarily excuse separate conduct, such as using an employer's customers and workplace to promote the employee's own business.

Practical takeaways

• Identify the actual obligation: state clearly whether the allegation concerns a contractual restraint, a conflict declaration, confidentiality, misuse of resources, competing activity, or another defined obligation.
• Use policies that fit: a public-sector decision-making conflict policy may not properly address a commercial conflict or outside business activity.
• Provide the key documents: if an employer relies on declarations or contractual terms, give the employee the relevant copies before expecting a response.
• Do not sit on concerns: long-known issues should ordinarily be raised openly and constructively before they are escalated to discipline.
• Good faith can require a problem-solving conversation: formal discipline is not always the first fair step, particularly where the alleged conduct could be corrected.
• Distinguish disclosure from formal declaration: informal management knowledge may be relevant to contribution, even where the employee did not complete the formal compliance process correctly.
• Assess workplace promotion separately: using workplace facilities or customers to advance a personal business can justify a contribution reduction even where the underlying business is known to management.
• Mitigation evidence matters: an employee with another business or readily available work may receive a limited lost-wages award where evidence of actual loss and mitigation is thin.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.