Luke Soltes v Department for Education [2026] SAET 41

1. While Mr Soltes initially used an incorrect application form (being an Application for Review under the Return to Work Act 2014), by email dated 17 December 2025, Mr Soltes advised that he intended to apply for a review under the ECS Act.
2. A Deputy Registrar administratively accepted Mr Soltes' form as an application pursuant to s 124 of the ECS Act and the proceedings were assigned to me. A directions hearing was scheduled for 29 January 2026.
3. As a result of Mr Soltes' enquiring about the prospect of an earlier listing, correspondence was sent to him raising the issue of jurisdiction, given Mr Soltes was self-represented. He was encouraged to seek advice on the issue prior to the directions hearing.
4. In its filed Answer/Response, the respondent opposed the relief sought by Mr Soltes on the basis that a decision to suspend an employee with renumeration is not amenable to review. The respondent submitted that the application should be dismissed for want of jurisdiction.
5. Both parties appeared by telephone at the directions hearing. The jurisdictional limits of the Tribunal's review powers were raised with the parties. Consequently, I adjourned proceedings for Mr Soltes to consider his position on continuing with his proceedings, and should he not wish to withdraw the matter, the respondent was given liberty to file an Application for Directions by 6 March 2026.
6. By email correspondence dated 4 February 2026, Mr Soltes confirmed that the application should be allowed to proceed on its merits.

1. In conformity with Orders of 29 January 2026, the respondent filed its Application for Directions on 6 March 2026 with accompanying affidavit, seeking that the application be dismissed pursuant to s 41 of the South Australian Employment Tribunal Act 2014.

1. By email dated 17 March 2026, Mr Soltes was invited to make written submissions on the Application for Directions filed by the respondent or to request an opportunity to make oral submissions at a hearing, if that was his preference. In either case, Mr Soltes was given until 31 March 2026 to respond.
2. The following day, Mr Soltes made further detailed written submissions. In the circumstances, I am satisfied that it is appropriate to determine the respondent's Application for Directions based on the papers.
3. The respondent says that Mr Soltes' application should be dismissed, as he is precluded from seeking review of the decision by virtue of reg 78(f) of the Education and Children's Services Regulations 2020 (ECS regulations). Given the decision is not a reviewable decision, the respondent says that Mr Soltes' application is misconceived and should be dismissed.
4. The focus of Mr Soltes' submissions relates to whether he was afforded procedural fairness by the respondent in its decision-making process, the lawfulness of the decision, and the consequences of the decision, particularly given that he is also the parent of a child with diagnosed additional educational needs who attends a state government school.
5. Mr Soltes acknowledges the decision is prescribed as non-reviewable by virtue of reg 78(f) of the ECS regulations. However, he submits that his application concerns the broader and ongoing exercise of a statutory power by the respondent. Mr Soltes suggests that the Tribunal's powers are not confined to the initial suspension decision but extends to whether the respondent's ongoing conduct constitutes an unreasonable or improper exercise of power.

1. The Tribunal's jurisdiction is conferred by statute. Otherwise, it has no wider or supervisory power over state government agencies.
2. Pursuant to s 124(1) of the ECS Act, the Tribunal is given power to review certain decisions and determinations of the respondent. Relevantly, the power expressly precludes a decision or determination of a kind prescribed by the regulations.
3. Reg 78 provides:

For the purposes of section 124(1) of the Act, the following decisions and determinations are prescribed:

(f) a decision to suspend an officer of the teaching service from duty with remuneration;

1. The construction of the relevant provisions of the ECS Act and ECS regulations reveal a legislative intention for the Tribunal's powers of review to be limited rather than generally broad in nature. The provisions afford no discretion to the Tribunal to review a non-reviewable decision, even in circumstances where an applicant may have reasonable grounds to argue that such a decision is unreasonable, unfair or disproportionately harsh.
2. It is plain that the decision with which Mr Soltes is aggrieved is a decision prescribed by the ECS regulations. Accordingly, I find that the Tribunal's powers of review pursuant to s 124 of the ECS Act are not enlivened.
3. Section 41 of the SAET Act applies if the Tribunal believes that a proceeding:

(a) is frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount; or

(b) is being used for an improper purpose; or

(c) is otherwise an abuse of process.

1. If the section applies, the Tribunal may act on application by a party or of its own motion to dismiss or strike out the proceeding. Where a proceeding is dismissed or struck out, another proceeding of the same kind cannot be commenced before the Tribunal without leave of a Presidential member.
2. In Harradine v Chief Executive of the Department for Education[1] the Full Bench of the Tribunal comprehensively reviewed authorities relating to the Tribunal's powers of summary disposal pursuant to s 41 of the SAET Act. It so doing, the Full Bench observed:[2]

Previous Full Benches have considered the approach to be taken to an application under s 41 of the SAET Act in a number of judgments. A Full Bench in Thompson v Return to Work SA, endorsed the following passage from the judgment of Deputy President Judge Gilchrist in McBride v Teys Australia Pty Ltd with respect to the s 41 power:

The authorities make it clear that the power to permanently strike out proceedings should be used sparingly. They talk in terms of the case being so obviously untenable that it cannot possibly succeed. In setting the bar at such a height, courts recognise that to permanently deprive a litigant the opportunity to argue his or her case in court is a very serious infringement on fundamental rights that should only be exercised in the clearest of cases. The fact that under the SAET Act a litigant who is the subject of such an order is not permanently shut out is an important consideration. It indicates that the bar is lower and that a present inability to mount an arguable case might be sufficient. I proceed from the premise that this is the relevant test.

McCusker PJ went on to observe that nevertheless the use of the s 41 power is exceptional, and was appropriate only where the claim being pursued was considered untenable.

[O]ne could characterise the word "misconceived" to connote a misunderstanding of the relevant legal principle upon which a case is founded, and the phrase "lacking in substance" to connote the pursuit of an untenable proposition of fact or law: State Electricity Commission of Victoria v Rabel and Others; Atkins v Atkins.

1. In my view, seeking a review of a non-reviewable decision is a misunderstanding of the extent of the Tribunal's jurisdiction pursuant to s 124 of the ECS Act. Without jurisdiction, Mr Soltes' application is untenable. As such, I am satisfied that Mr Soltes' application is misconceived within the meaning of s 41 of the SAET Act.
2. Accordingly, I grant the respondent's Application for Directions.

1. Mr Soltes' Application for Review dated 17 December 2025 is dismissed for want of jurisdiction.

[1] [2020] SAET 38.