But to be enforceable, and form a term of the employee’s contract, those policies must be reasonable, unambiguous, well-advertised and consistently enforced. It must be clear to the employee both what the policies are and the consequences of their breach.

This is where two key mistakes that almost every employer makes, when looking to implement and enforce such policies, arise: First, they fail to adequately distribute and train employees on the policies; and second, they fail to consistently enforce them.

It is common for employers to circulate codes of conduct, workplace policies, or employee handbooks without providing any discussion or training. Often this is done via email where the employee can simply skip to the bottom of the document and move on without having read a single line. Docusign files, in which the policy can be difficult to read, are even worse. This review-at-your-leisure approach leaves open questions. Does the code/policy form part of the employee’s contract? What happens if the employee breaches the policy? Can the employer unilaterally change the policy?

Leaving these questions unanswered is fatal to any employer looking to terminate an employee for cause for a policy’s breach. After all, a for-cause termination requires “wilful” misconduct — it is a losing battle attempting to establish that an employee wilfully breached rules they were unaware of or did not receive training in.

To avoid these issues, employers should, as part of employees’ initial training and orientation, have the employee confirm in writing that they have read and understood all applicable policies prior to commencing employment. This includes a discussion of any disciplinary action that could arise from their breach. Ideally, the employee will review the policies with their supervisor or human resources representative who will both then sign, confirming they have reviewed and understand the applicable policies. Periodic reviews with employees should be conducted so that employees are continually made aware of their obligations, particularly where policies are being revised or updated. Having annual code of conduct training, in particular, with employees required to complete a test and sign their agreement, is very helpful if you wish to rely upon them later in a discharge case.

An employer is able to revise or update such policies so long as the changes are reasonable and do not constitute a substantial change to the terms of employment. Where an employer is looking to implement new policies that may constitute a substantial change, the employer should provide something of value in exchange for the employee’s adherence to the new terms or risk facing a constructive dismissal claim. The alternative is to provide advance reasonable notice of the policy coming into effect, just as one can provide reasonable notice to terminate an employee in lieu of wrongful dismissal damages.

Each employee’s personnel file should include all signed documentation confirming receipt and understanding of the relevant policies, as well as any training the employee has received. This will be invaluable for an employer relying on such policies to dismiss an employee for cause or in defending a wrongful dismissal claim.

But ensuring employees are aware of and trained on the policies is only part of the equation — if they are not enforced consistently, they will become unenforceable. This is particularly so where a policy includes progressive discipline provisions for breaches of the policy.

If a progressive discipline policy is to be relied on in dismissing an employee for cause, it must be followed. Take, for example, a workplace policy that contains a conflict-of-interest (COI) provision prohibiting employees from purchasing shares in any company the employer does business with. The policy states that a breach of the COI provision will trigger an investigation prior to disciplinary action being taken. Despite this policy, all senior executives with the employer buy publicly traded shares in a big bank which does business with the employer. In response, the employer carries out an investigation pursuant to the policy and determines there to be no breach of the COI provision. In seeing the employer’s condonation of the purchase of the bank shares, a junior employee purchases publicly traded shares in a small company with which the employer also does business. The junior employee is then fired for cause for breaching the COI provision.

The employer in this example will have a difficult time justifying the dismissal of the junior employee, given its condonation of the executives’ conduct, and an even harder time enforcing the policy going forward. Moreover, this employer will be unable to rely on this policy in terminating the employee given it failed to follow its own policy requiring an investigation prior to dismissal.

In short, employers need to ensure their employees are aware of applicable policies, the policies are unambiguous, reasonable, consistently enforced, and that employees are aware that a breach will lead to disciplinary action, including dismissal. Perhaps most importantly, employers should be wary of condoning breaches of its policies as condonation may render them unenforceable.