Judge reserves decision on reinstatement of fired Fredericton officer Jeff Smiley

Former Fredericton Police Force officer Jeff Smiley will have to wait until next week to learn whether a judge will order he be reinstated and paid his retroactive wages now that his firing a year ago for alleged misconduct has been quashed.

Both sides agreed Thursday in Court of Queen's Bench that last month's quashing of an arbitrator's order to fire Smiley returns him to the status he had before that decision — a constable on paid suspension.

But they disagree about who has the authority to make the decision to put Smiley back on the payroll and award him the pay and benefits he lost during the past year, since his dismissal.

Smiley's lawyer Daniel Leger argued it's Chief Leanne Fitch who has that authority, and he wants Justice Terrence Morrison to order her to do so.

Lawyer Jamie Eddy, however, argued on behalf of Fitch and the force that the court isn't the correct forum for the matter.

He contends it should go before an industrial relations arbitrator, or an arbitrator with the New Brunswick Police Commission.

Eddy cited as an example the fact that Smiley removed all his pension contributions. Deciding how much Smiley would have to pay back is the jurisdiction of an arbitrator, Eddy argued, as Smiley looked on.

Morrison questioned why the city has refused to pay Smiley.

"Why isn't he being paid, in light that he is now a police officer again?" the judge asked.

"If the bell is unrung, if he is a police officer, doesn't he deserve to be paid?"

Eddy said only, "there is a dispute," and that it is a question to be put to an arbitrator.

Morrison said he will render an oral decision on Tuesday at 3 p.m.

The case against Smiley dates back to February 2014, when he was arrested by fellow officers on an allegation of off-duty domestic assaults against his common-law spouse, Kimberly Burnett.

Smiley was fired after an arbitrator found him guilty on Dec. 2, 2015, of four counts of breaching the professional conduct standards of police officers, including domestic violence and firearms-related offences.

But Court of Queen's Bench Justice Judy Clendening quashed the decision on Nov. 18, ruling Smiley's dismissal was unreasonable.

The New Brunswick Police Commission has since filed an application to appeal Clendening's decision to the province's highest court.