He'd worked there 33 years - and was rehired just months after the sacking
He worked for the same health service for more than three decades. Then he refused a COVID-19 vaccine.
A long-serving patient care assistant at East Metropolitan Health Service (EMHS) in Western Australia has lost his bid to bring a disability discrimination claim after arguing that his unvaccinated status was itself a disability under federal law.
The Federal Circuit and Family Court of Australia threw out the application on October 5, 2026, finding the worker had no reasonably arguable case - the threshold needed to get the matter to trial.
The facts were largely undisputed. In September 2021, as Western Australia enforced mandatory vaccination for health workers, EMHS directed all staff in tier two health facilities - essentially frontline sites - to be partially vaccinated by November 1, 2021, and fully vaccinated by December 1. Staff had to show proof of vaccination or a valid medical exemption.
The worker did neither.
Instead, from November 2021, he took three months of accrued long service leave, followed by two weeks of annual leave. By the time that leave ran out, EMHS placed him on unpaid leave and launched a disciplinary process for failing to comply with the direction.
His lawyers pushed back. Among the arguments was a novel one: because an unvaccinated person is statistically more likely to contract COVID-19, and because the Disability Discrimination Act 1992 defines "disability" to include the presence of disease-causing organisms in the body - even a disability that "may exist in the future" or "is imputed to a person" - the worker said his unvaccinated status gave him a disability. Terminating him for it, he argued, was discrimination.
EMHS paused the disciplinary process in June 2022 to await the outcome of a related Supreme Court case, then resumed it in October. On November 1, 2022, EMHS confirmed the termination. His last day was November 30, 2022.
Here is where the story takes a turn. In March 2023 - barely four months later - EMHS re-employed the worker in the same role.
Meanwhile, the discrimination claim had been working its way through the system. The worker had complained to the Australian Human Rights Commission (AHRC) in October 2022 and later amended the complaint to include a family history of heart disease as a reason he was not vaccinated. In September 2024, the AHRC terminated the complaint, finding it lacked substance. That sent it to the federal court, where the worker needed the court's permission to proceed.
The legal question at the centre of the case: can a person who chooses not to be vaccinated claim their unvaccinated status is a disability?
The court said no.
To support his argument, the worker pointed to two key pieces of evidence. First, an affidavit from Western Australia's Chief Health Officer, originally prepared for separate Supreme Court proceedings, which showed unvaccinated people faced greater risk from COVID-19. Second, a US Centers for Disease Control and Prevention fact sheet stating that vaccines help develop immunity "without us having to get the illness."
The court found this evidence fell well short. The statistics showed unvaccinated people were more likely to catch COVID-19 - but also made clear that vaccinated people could still contract the virus. A higher chance of catching a disease, the court held, is not the same as being imputed with having it.
Even if the worker could clear that hurdle, the court found no link between his claimed disability and his termination. The paperwork was clear: EMHS terminated him because he did not comply with a lawful direction. That the direction happened to involve vaccination did not turn the termination into disability discrimination.
The court distinguished this from an earlier Federal Court case where an employer withdrew a job offer after wrongly concluding a candidate had hypertension from a medical check. In that case, the employer's own assumption about a medical condition drove the decision. Here, no one at EMHS imputed the worker with having COVID-19. They simply required compliance with a public health direction.
On reasonable adjustments - whether EMHS should have found the worker alternative duties - the court was equally unconvinced. The vast majority of his tasks as a patient care assistant had to be performed inside a health facility. The only duty he identified that could be done offsite was "store person and deliveries." Every other alternative he suggested would have required training in an entirely different role. The court did not accept those amounted to reasonable adjustments.
Notably, a different judge of the same court had reached a different result in a similar case, granting leave to an unvaccinated worker in private education to proceed with a comparable claim. The court acknowledged that decision but departed from it, finding insufficient reasoning to follow and key factual differences - including the healthcare setting and the strength of evidence before each court.
The question of costs was left open.
For HR teams still dealing with the aftermath of pandemic-era workforce decisions, the case reinforces that a documented disciplinary process built around a lawful employer direction holds up - even when the employee mounts a creative legal challenge years later.
This matter was determined at a preliminary stage. The court refused the worker leave to bring his disability discrimination claim, finding he had not presented a case capable of proceeding to trial. The application was dismissed. The decision may be subject to an application for leave to appeal.
