dissenting,
I would affirm the ruling of the trial court which held, in effect, that claimant’s single incident of eating food on the job did not constitute deliberate or willful misconduct disqualifying her for unemployment compensation. Under Code § 60.1-58(b) (now § 60.2-618(2)) an individual is disqualified from unemployment compensation if he or she has been discharged for “misconduct connected with his work.” In my view the claimant’s violation of the company rule against consuming food on the job did not constitute misconduct because the rule was not strictly nor uniformly enforced.
I agree with the majority that credible evidence in the record supports the commission’s factual findings that claimant’s discharge was a consequence of violating the employer’s legitimate rule against eating in the store rather than the employer’s dissatisfaction with her job performance. Thus, we are bound by that finding. Code § 60.2-625(A); Lee v. Virginia Employment Comm’n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106 (1985). Therefore, the trial court erred in holding that the employer’s rule was not reasonably designed to protect a legitimate business interest. However, whether a rule violation constitutes “misconduct” is a mixed question of law and fact reviewable by this court on appeal. See Blake v. Hercules, Inc., 4 Va. App. 270, 273, 356 S.E.2d 453, *639455 (1987).
The statutory term “misconduct” should not be so literally construed as to effect a forfeiture of benefits by an employee except in clear instances; rather, the term should be construed in a manner least favorable to working a forfeiture so as to minimize the penal character of the provision by excluding cases not clearly intended to be within the exception.
76 Am. Jur. 2d Unemployment Compensation § 52 (1975).
A determination of misconduct within the contemplation of Code § 60.2-618(2) takes into consideration both the employer’s legitimate business interests and the employee’s actions and the mitigating circumstances, if any. Branch v. Employment Comm’n, 219 Va. 609, 611-12, 249 S.E.2d 180, 182 (1978). Thus, alleged misconduct, based on a rule violation, includes inquiry into the circumstances which tend to mitigate against the violation being in deliberate disregard of the employer’s business interest. In my view the claimant’s evidence of mitigation proved that her actions were not in disregard of her employer’s legitimate business interest.
But, the primary factor which mitigates Gantt’s behavior from being misconduct emanates from the lack of enforcement by the employer of its food rules. First, rules regarding food consumption in the store had been generally unenforced in the past; further, they were not enforced after the meeting in which the breakfast rule was announced. Although the breakfast rule was a change in the policy for food consumption on the premises, when it was promulgated and announced to the employees they were not informed of any change in enforcement policy or that a violation could lead to discharge. Indeed, the violation did not lead to dismissal for all the breakfast-eaters; apparently only Gantt was discharged although others were involved in the same conduct.
When an employer has knowingly tolerated violations of particular rules in the past, it is reasonable to infer that a similar violation of a similar rule does not jeopardize an employer’s business interests. An employer may not disregard violations of its rule and then claim that a particular single violation is so hurtful to his or her interests as to constitute misconduct and justify disqualification for benefits. Lack of enforcement promotes noncompliance. *640Selective enforcement suggests that interests other than legitimate business ones which the rule protects caused the discharge. I would hold that in order for violation of a rule to constitute misconduct which disqualifies an employee for unemployment compensation benefits the rule must be strictly and uniformly enforced. Habitual disregard of the rule and failure to enforce it mitigates against violations being considered misconduct in the eyes of the employer. An employer who continuously acquiesces in the breach of his or her own rule will not be heard to complain, unless sufficient intervening measures have been taken to notify employees that violations will not be condoned and that a future transgression will invoke sanctions.
Requiring strict enforcement of rules in order for a violation to constitute “willful misconduct” is well-founded in workers’ compensation law. In Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 150 S.E.2d 120 (1966), the Virginia Supreme Court held that in order for the employer to prevail on the defense of willful misconduct, it must show not only that the claimant violated a well-known safety rule, but also that the rule had been strictly enforced by the employer. Holding that the question of strict enforcement was a mixed question of law and fact, the court reviewed the uncontradicted evidence and reversed the commission’s decision that the employer had not strictly enforced the rule. Although Peanut City was a workers’ compensation claim, the concepts of misconduct in both areas of administrative law are analogous insofar as misconduct in each field bars benefits to employees who are out of work through their own fault. Also, in both instances the doctrine serves to protect the employer’s interest in having his rules observed.
Requiring that the employer strictly enforce its rule before a violation can be misconduct is based on sound reason. I would adopt the strict enforcement requirement in unemployment compensation. I find that Gantt’s employer did not strictly or uniformly enforce its rules pertaining to food consumption. Absent strict enforcement, the employer’s defense of misconduct fails. I do not suggest that “strict enforcement” requires an employer to discharge or suspend an employee each time a rule is violated. Action by the employer which reasonably alerts an employee to the fact that he has violated a rule and that the violation is wrongful, and that indicates a “conscientious, bona fide effort on behalf *641of the employer to require claimant and the other employees to fully comply with the rule at all times” will suffice. Peanut City, 207 Va. at 406, 150 S.E.2d at 125; see also VEPCO v. Kremposky, 227 Va. 265, 270-71, 315 S.E.2d 231, 234 (1984).
In an employment-at-will environment, the employer is free, within the limits of public policy, to rid itself of unwanted employees at any time, with or without cause. 12B Michie’s Jurisprudence Master and Servant § 7 (1978 Repl. Vol.). The commission and the courts, however, determine whether employee “misconduct” was the reason for the discharge. Absent misconduct no disqualification will be imposed for those temporary unemployment benefits which are provided a discharged worker.
Gantt proved circumstances which are sufficient as a matter of law to mitigate her violation of a rule being misconduct. Because the rules regarding food consumption were not strictly enforced, I would hold that her activities did not constitute misconduct and that she is entitled to unemployment compensation benefits. Thus, I would uphold the trial court ruling that Gantt’s behavior did not constitute misconduct under Code § 60.2-618(2) although the basis for its determination was error. Accordingly, I would affirm the result reached by the trial court and remand the case with directions that the trial court order the commission to enter an appropriate award.